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Federal Labor Relations Authority.
Final rule.
The Federal Labor Relations Authority (FLRA) is revising the regulations governing negotiability appeals to better “expedite proceedings,” consistent with Congress's direction. The final rule is designed to benefit the FLRA's parties by clarifying various matters and streamlining the adjudication process for negotiability appeals, resulting in more timely decisions.
Thomas Tso, Solicitor, at
The FLRA proposed revisions to part 2424 of the Authority's Regulations concerning negotiability proceedings. The proposed rule was published in the
In §§ 2424.22 and 2424.25, the final rule changes the procedures through which an exclusive representative may divide or sever a proposal or provision into distinct parts, in order to seek separate negotiability determinations on particular matters standing alone. Section 2424.10 of the final rule does not remove references to the Collaboration and Alternative Dispute Resolution Program. Section 2424.21 of the final rule does not require an exclusive representative to file a petition for review within sixty days after the expiration of the deadline for an agency to respond to a request for a written allegation concerning the duty the bargain. Section 2424.22 of the final rule does not require an exclusive representative to respond, in a petition for review, to specific claims in an agency's allegation concerning the duty to bargain or an agency head's disapproval. Section 2424.26 of the final rule does not shorten the time limit for filing an agency's reply from fifteen days to ten days. Section 2424.41 of the final rule does not require an exclusive representative to report to a Regional Director an agency's failure to comply with a negotiability decision and order within thirty days after the expiration of the 60-day period for seeking judicial review. Unlike the potentially broad revisions contemplated in the proposal notices, the final rule leaves § 2424.50 of the Authority Regulations (concerning compelling need) mostly unchanged.
Some of the comments responding to the proposal notices did not concern a specific section of the proposed rules. One commenter opposed any changes to existing negotiability procedures because, in the commenter's view, the process could be streamlined by employing sufficient staff. As this comment was not germane to the proposed rule, it did not influence the final rule.
The Office of Personnel Management (OPM) requested that the final rule include a provision requiring that, if a petition for review raises a negotiability dispute concerning a statute that OPM administers, an executive order that OPM administers, or a government-wide regulation that OPM promulgated, then the Authority must formally notify OPM and provide OPM an opportunity to intervene in the case.
Section 7105(i) of the Federal Service Labor-Management Relations Statute (the Statute) states that “the Authority
For these reasons, the final rule does not include a provision concerning notification of, and intervention by, OPM in particular cases.
The regulatory analyses provided in the proposal notices about wording that
None of the public comments addressed § 2424.1. The final rule is the same as the proposed rule.
One commenter stated that the sentence listing examples of bargaining obligation disputes should say that such disputes include, but may not be limited to, the specified examples. This requested change is unnecessary because the list of examples does not purport to be exhaustive. The same commenter asked that the examples be joined by “or” rather than “and.” The commenter correctly notes that each example is sufficient, on its own, to establish a bargaining obligation dispute. However, this requested change is unnecessary because each example is part of a group of similar terms, so using “and” is appropriate. Therefore, these requested changes were not adopted.
Another commenter requested that the examples of bargaining obligation disputes be expanded from the proposed rule so that the examples still included situations where parties disagree about whether a change to conditions of employment was de minimis. As discussed in connection with § 2424.2(a)(2) below, this requested change is incorporated into the final rule.
A third commenter stated that it does not interpret the changes to the examples in this section to alter the legal definition of the defined terms. To the extent that the commenter means that the changes to examples are intended to better illustrate the existing definitions of these terms, rather than to change the operative definitions of the terms, the commenter is correct. This commenter also objected to adding executive orders to the examples of sources of negotiability disputes. As explained further below in connection with § 2424.2(c), executive orders are not included among the examples of sources of negotiability disputes in the final rule. This commenter also asked that, where government-wide rules or regulations are listed as sources of negotiability disputes, the rule be amended to acknowledge that government-wide rules or regulations can be contrary to statutory law. However, this requested change is unnecessary because it is irrelevant to the existence of a negotiability dispute. Regardless of whether a government-wide rule or regulation is consistent with, or contrary to, a statute, a disagreement between parties about whether a proposal or provision is consistent with a government-wide rule or regulation will establish that a negotiability dispute exists.
As in the proposed rule, § 2424.2(a) of the final rule clarifies the definition of a “bargaining obligation dispute.” However, in response to a comment seeking further examples, § 2424.2(a) of the final rule includes two additional examples, rather than (as in the proposed rule) one additional example. Specifically, § 2424.2(a)(2) of the final rule identifies, as examples of bargaining obligation disputes, disagreements concerning agency claims that bargaining is not required “because there has not been a change in bargaining-unit employees' conditions of employment,”
Section 2424.2(c) of the final rule differs from the proposed rule in three respects. First, whereas § 2424.2(c)(2) of the proposed rule identified, as an example of a negotiability dispute, a disagreement concerning whether a proposal or provision “[d]irectly affects bargaining-unit employees' condition of employment,” § 2424.2(c)(2) of the final rule removes the word “[d]irectly.” The word “[d]irectly” was removed because a negotiability dispute exists when there is a disagreement about whether a proposal or provision has
Section 2424.2(e) and (f) are the same in the final rule as in the proposed rule.
The proposal notices explained that, although the proposed rule contained revised wording that would “[e]liminat[e] severance altogether,” “the FLRA [wa]s also considering another possible option” that would not completely eliminate severance. 84 FR at 70439. Unlike the proposed rule, the final rule does not remove the existing definition of “[s]everance,” located at 5 CFR 2424.2(h). Because the final rule does not remove the “[s]everance” definition, the final rule also does not redesignate the definition of “[w]ritten allegation concerning the duty to bargain” as § 2424.2(h)—which is a change from the proposed rule. Under the final rule, the definition of “[w]ritten allegation concerning the duty to bargain” maintains its existing location at 5 CFR 2424.2(i).
Three commenters opposed adding to this section new wording that specifies that Collaboration and Alternative Dispute Resolution (CADR) assistance is provided at the discretion of the
One commenter appeared to believe that, under the proposed rule, after a petition for review had been filed, the Authority could require the parties to participate in alternative dispute resolution without their consent. To the contrary, CADR assistance will continue to require the consent of the parties.
Another commenter expressed reservations about an addition in the proposed rule that stated that CADR assistance would be provided as resources permit. Because the FLRA is unable to offer any services beyond the capacity of its available resources, this wording remains part of the final rule, as discussed further below.
A third commenter expressed disappointment that the proposed rule removed references to the CADR Program. As explained further below, the final rule does not remove those references.
Unlike the proposed rule, the heading of § 2424.10 in the final rule will remain the same as the existing heading of 5 CFR 2424.10. In another variance from the proposed rule, § 2424.10 of the final rule is amended to state that parties may contact either the CADR Program or the Office of Case Intake and Publication to seek CADR services. Updated phone numbers are added to the final rule. Further, whereas the proposed rule removed all direct references to CADR, § 2424.10 of the final rule retains all of the direct references to CADR that currently appear in 5 CFR 2424.10. As in the proposed rule, § 2424.10 of the final rule clarifies that CADR representatives will attempt to assist parties to resolve their disputes “as resources permit.”
Two commenters supported requiring that requests for allegations concerning the duty to bargain be in writing, and like the proposed rule, the final rule incorporates this requirement.
OPM requested that this section be amended to state that any written agency responses to an exclusive representative's proposals—including agency counterproposals—may contain an unrequested agency allegation concerning the duty the bargain. Because the existing wording does not limit the types of written sources that may contain an unrequested agency allegation concerning the duty to bargain, the requested change is unnecessary. Therefore, the final rule does not adopt that requested change.
OPM also requested that this section be amended to specify that an agency allegation concerning the duty to bargain need contain only an assertion of nonnegotiability and the statutory basis, or other authority, supporting that assertion. OPM contended that the rule should make clear that no further detail is necessary to trigger the time limits for filing a petition for review under § 2424.21. The existing wording at 5 CFR 2424.11 does not specify the level of detail required to trigger the time limits in § 2424.21, except to say that agency allegations must be in writing and must concern the duty to bargain. The FLRA believes that case-by-case adjudication continues to provide a superior method for determining precisely when an agency allegation has triggered the time limits in § 2424.21, and the final rule has not adopted OPM's suggested modification.
The final rule is the same as the proposed rule.
Six commenters addressed the change in the proposed rule that, if an agency fails to respond within ten days to an exclusive representative's written request for a written agency allegation concerning the duty to bargain, then the exclusive representative may file a petition, but only within the next sixty days. One union commenter stated that the sixty-day timeline was adequate under these circumstances. Three agency commenters stated that imposing the sixty-day timeline would ensure that negotiability disputes did not linger longer than necessary. OPM requested that this deadline be shortened to thirty days. One union commenter opposed the sixty-day deadline because, according to the commenter, this change rewarded an agency's failure to respond to a written request for an allegation of nonnegotiability by nevertheless imposing a deadline on the exclusive representative for filing a petition for review. As discussed further below, the final rule does not impose this sixty-day deadline because it is not clear that there is currently a problem with exclusive representatives waiting for unnecessarily lengthy periods of time to file petitions after requesting, but not receiving, written agency allegations.
Two commenters expressed concern that an agency does not face adverse consequences for failing to provide a written allegation concerning the duty the bargain within ten days of the exclusive representative's written request for such an allegation. One union commenter suggested that, to provide an adverse consequence for an agency in these circumstances, for each day that the agency's requested allegation is late—that is, beyond the ten-day deadline for providing such an allegation—the exclusive representative should receive an additional day for filing its petition. This suggestion would violate Section 7117(c)(2) of the Statute, which requires a fifteen-day deadline for filing a petition for review after an agency alleges that the duty to bargain does not extend to any matter. 5 U.S.C. 7117(c)(2). Thus, this suggestion has not been adopted. The same union commenter was also concerned that fifteen days would be inadequate for filing a petition that satisfies certain new content requirements that appeared in § 2424.22(d) of the proposed rule. As discussed later in connection with § 2424.22(d), the proposed new content requirements are not part of the final rule, so this concern has been mooted. One commenter suggested that the Authority rewrite the section so that none of the deadlines depend on when the exclusive representative receives, or does not receive, written agency allegations. According to this commenter, the complexity of the section in distinguishing between responses or non-responses to written requests for allegations, solicited or unsolicited allegations, and written versus unwritten allegations creates unnecessary formality that will confuse many negotiators, who are often not lawyers. The commenter suggested that the section state simply that an exclusive representative may file an appeal at any time after the representative is placed on notice that the agency considers a proposal
One union commenter opposed § 2424.21(b)(1)(i) of the proposed rule, which stated that, if the agency serves a written allegation on the exclusive representative more than ten days after receiving a written request for such allegation, then the petition must be filed within fifteen days of the service of that allegation. This union commenter contended that imposing a fifteen-day deadline on an exclusive representative—even when an agency did not satisfy its obligation to provide a requested allegation within ten days of the request—rewards an agency's violation of its regulatory obligation to furnish requested allegations. However, this commenter did not suggest any alternative regulatory wording, and as discussed in the previous two paragraphs, Section 7117(c)(2) of the Statute requires a fifteen-day deadline for filing a petition for review after an agency alleges that the duty to bargain does not extend to any matter. 5 U.S.C. 7117(c)(2). As discussed further below, with some modifications to the wording, the change identified as § 2424.21(b)(1)(i) of the proposed rule has been adopted as § 2424.21(b)(1) of the final rule.
OPM suggested that § 2424.21(b)(1)(ii) of the proposed rule be omitted from the final rule because it was confusing. As explained further below, this suggestion was accepted.
Unlike the proposed rule, § 2424.21 of the final rule does not state that if an agency fails to respond to a written request for a written allegation within ten days of the request, then the exclusive representative may file a petition, but only within the next sixty days. Further, to simplify the rule, § 2424.21 of the final rule does not adopt the wording from § 2424.21(b)(1)(ii) of the proposed rule, which described how the Authority would handle a situation where an agency served a written allegation on the exclusive representative more than ten days after receiving a written request for such allegation, but the exclusive representative had already filed a petition. These proposed changes have been deliberately omitted from the final rule. However, § 2424.21 of the final rule adopts the change from the proposed rule that, if the agency serves a written allegation on the exclusive representative more than ten days after receiving a written request for such allegation, and a petition has not yet been filed, then the petition must be filed within fifteen days of the service of that allegation. This change now appears as § 2424.21(b)(1) in the final rule.
OPM suggested that this section specify that untimely petitions will be dismissed absent a demonstration of good cause. Existing procedures for addressing untimely petitions have proven adequate, so this suggestion has not been adopted.
Many of the comments about this section concerned the proposal to amend severance procedures. The proposal notices described two possible severance-amendment options. Under “Option 1,” severance would be eliminated altogether by requiring the exclusive representative to divide matters into separate proposals or provisions when filing the petition, and by precluding severance at later stages of the proceeding. Under “Option 2,” severance would be available at only one point in the filing process, and timely severance requests would be automatically granted. However, if severance requests were automatically granted, then the exclusive representative would bear certain burdens to ensure that the record was sufficient to assess whether the severed portions were within the duty to bargain or consistent with law.
One union commenter supported the portion of “Option 1” that allowed an exclusive representative to divide matters into distinct proposals and provisions at the petition stage, but the commenter desired another opportunity for severance later in the process. This commenter suggested that the exclusive representative's response to the agency's statement of position should be the later point for severance. This commenter supported the portion of “Option 2” that would make severance automatic because this approach would prevent severance from becoming its own point of contention in the proceedings.
Another commenter said that neither severance option would streamline the negotiability process because, even after severance occurred, if only a few words from a larger proposal or provision were allegedly nonnegotiable, then that small portion could cause the entire proposal or provision to be found nonnegotiable. However, the consequence that the commenter identified exists regardless of severance procedures: Any portion of a proposal or provision may render the larger whole deficient. Thus, severance procedures could not completely eliminate that risk. If required to choose between the two options, this commenter preferred “Option 1.”
A commenter suggested that unions should state, during bargaining, how they would prefer proposals to be severed in the event of a negotiability dispute. The commenter asserted that this approach would highlight which portions of proposals were most important to the union before disputes reached the formal negotiability process. However, regulating the methods that parties use in their bargaining before the formal negotiability process begins is beyond the scope of the rule.
An agency commenter supported both eliminating severance altogether and prohibiting an exclusive representative from dividing single proposals from the bargaining table into multiple parts—to be considered as distinct proposals—in a petition. This suggestion is impractical because, in most cases, an exclusive representative must choose how much of the wording from the parties' negotiations will be set forth in the petition. In some cases, negotiations may involve only a few sentences, but many cases involve multiple pages of text. It would be inefficient for the rule to require an exclusive representative to set forth in the petition all of the text from the bargaining table, even though some parts are entirely agreeable to both parties. Thus, an exclusive representative must apportion the text from the bargaining table into proposals for consideration in a petition.
Another union commenter opposed making any changes to existing severance procedures because, according to this commenter, the Statute requires an informal process for presenting arguments to the Authority. However, the Statute is precise in delimiting the procedures for negotiability appeals, and there is nothing to suggest that the entire process should be informal. Further, it is unclear how maintaining or eliminating severance—which is a specialized concept in negotiability law—would promote informality, even if that were a goal of the negotiability process. This commenter also contended that if severance were eliminated, exclusive representatives would be unable to salvage negotiable portions of longer proposals in which easily isolatable parts were outside the duty to bargain. This criticism is
After consideration of these severance comments, and as explained further below, the final rule incorporates portions of “Option 1” and “Option 2.” At the petition stage, the exclusive representative will be responsible for dividing matters into distinct proposals or provisions, if it desires distinct negotiability determinations on particular matters standing alone. However, when the exclusive representative files a response to the agency's statement of position, there will be an opportunity to invoke a modified severance procedure. The ways in which that procedure has been modified are discussed in connection with § 2424.25 of the final rule.
The remaining comments on this section concerned § 2424.22(d) of the proposed rule, which required exclusive representatives to respond—in the petition for review—to any specific claims from an agency's allegation concerning the duty to bargain, or from an agency head's disapproval (the response requirement).
One union commenter opposed the response requirement because the commenter said that the requirement was overly formalistic, and many union representatives are not lawyers.
An agency commenter supported the response requirement on the ground that it would foster a more prompt and focused process for resolving negotiability disputes.
One commenter said the fifteen-day deadline for filing a petition would not be sufficient to respond to all of the specific claims in an agency's allegation concerning the duty to bargain, or an agency head's disapproval.
Another union commenter stated that the response requirement would demand that an exclusive representative prove that a proposal was negotiable, rather than require that an agency prove that it was not.
As explained further below, the final rule does not adopt § 2424.22(d) of the proposed rule, so the expressed concerns about, or support for, the response requirement are moot.
The heading and § 2424.22(a) are the same in the final rule as in the proposed rule. Like the proposal notices' “Option 1,” § 2424.22 of the final rule adds a new paragraph—designated § 2424.22(b)—to allow for the division of matters into proposals or provisions. If an exclusive representative seeks a negotiability determination on particular matters standing alone, then the exclusive representative will be required to divide the matters into separate proposals or provisions when filing the petition. An exclusive representative may no longer ask the Authority for severance at the petition stage of the negotiability proceedings, because the exclusive representative is capable of separating matters into distinct proposals or provisions when submitting a petition to the Authority. However, the final rule also adopts parts of “Option 2” from the proposal notices. Specifically, the final rule does not completely eliminate severance from negotiability proceedings, although the exclusive representative may no longer ask the Authority for severance at the petition stage. In accordance with the description of “Option 2” in the proposal notices, a new sentence has been added to § 2424.22(b) of the final rule that did not appear in the proposed rule. Specifically, § 2424.22(b) of the final rule states that “the exclusive representative will have an opportunity to divide proposals or provisions into separate parts when the exclusive representative files a response under § 2424.25.” In other words, a modified severance procedure will be available at the response stage of the negotiability proceedings.
Section 2424.22(c) of the final rule differs from the proposed rule in several respects. The paragraph identified as § 2424.22(c)(3) in the proposed rule is adopted but redesignated as § 2424.22(c)(2)(i) in the final rule. The paragraph identified as § 2424.22(c)(4) in the proposed rule is adopted but redesignated as § 2424.22(c)(3) in the final rule. The word “and” has been removed from the end of this paragraph because an additional paragraph has been added to § 2424.22(c) of the final rule. The paragraph identified as § 2424.22(c)(5) in the proposed rule is adopted but redesignated as § 2424.22(c)(3)(i) in the final rule, and the word “and” has been added to the end of this paragraph to introduce the final paragraph of § 2424.22(c) of the final rule.
Section 2424.22 of the proposed rule eliminated the wording currently located at 5 CFR 2424.22(b)(4). Section 2424.22 of the final rule maintains the wording currently located at 5 CFR 2424.22(b)(4), but the wording is redesignated as § 2424.22(c)(4) in the final rule. This wording is further amended so that it requires the petition to include any request for a hearing and the reasons supporting such request, “with the understanding that the Authority rarely grants such requests.” This additional proviso has been added to make parties aware that, as a matter of longstanding practice, the Authority very seldom grants hearing requests.
Unlike the proposed rule, § 2424.22 of the final rule does not require the exclusive representative to respond, in its petition, to specific bargaining obligation or negotiability claims that appear in an agency's written allegation concerning the duty to bargain, or an agency head's disapproval—although the exclusive representative is not prohibited from responding to those claims in its petition.
Like the proposed rule, § 2424.22 of the final rule eliminates the paragraph concerning severance that is currently located at 5 CFR 2424.22(c).
Two agency commenters opposed making the scheduling of a post-petition conference dependent on the Authority's discretion. However, the existing regulation already recognized such discretion by saying that conferences would be scheduled only “where appropriate.” 5 CFR 2424.23(a). Although the wording is being changed, the effect is the same. One of these commenters also stated that conferences should occur before the agency files its statement of position. Although the Authority endeavors to schedule conferences before the filing of a statement of position, conferences do
A union commenter said that conferences should be held early in the filing process. As stated previously, the Authority will continue to endeavor to do so.
Another agency commenter suggested that post-petition conferences should happen within thirty days or less of the Authority's meeting on the case. The commenter expressed concern that, because conferences may be held many months before a decision is issued, the Authority's Chairman and Members may not retain familiarity with the details of the conference. Because the record of a post-petition conference is created shortly after the conference, and that record is part of the official case file that the Chairman and Members review when deciding a negotiability appeal, the commenter's concern is unfounded. Thus, the final rule has not been amended based on this comment.
OPM supported emphasizing the discretionary nature of post-petition conference scheduling, but asked that the regulation be amended further to state that the post-petition conference would generally not occur if no additional clarification was needed regarding the disputed wording. Experience has shown that, in nearly all cases, post-petition conferences meaningfully clarify the disputes in negotiability appeals. Thus, the regulation has not been amended as OPM suggested.
OPM also suggested that the post-petition conferences should occur after the agency files its statement of position. OPM reasoned that the statement of position is the first fully elaborated explanation of the agency's objections to the disputed wording, and if conferences were held after it is filed, then the conference holder would have more material with which to prepare for the conference. Post-petition conferences primarily develop the factual record in a negotiability appeal and reveal whether the parties have a shared understanding of the wording in dispute. If the parties do not already have a shared understanding of the disputed wording, then the conference helps to develop such an understanding, or to precisely identify where the parties' understandings differ.
Although previously expressed legal arguments may shape some of the questions at the conference, the existing process has shown that conference holders are able to elicit sufficient information from agencies during the conference to assess the nature of their objections and tailor the conference accordingly. Further, in cases where the conference occurs before the statement of position is filed, the agency is able to focus its arguments in the statement of position on the actual disputes between the parties, rather than misperceptions about the meaning, operation, and effects of the proposals or provisions. Therefore, the final rule does not aim to schedule post-petition conferences after the filing of the statement of position.
One commenter suggested that the section should not be changed because the existing process has worked very well. The changes adopted in the final rule will more closely align the wording of the regulation and the Authority's actual practices. The essential nature and function of the post-petition conferences will remain the same.
One agency commenter suggested that § 2424.23(e) of the proposed rule should be amended to specify that the Authority may take other appropriate action to aid in its decision making even if a conference is not held. However, the proposed rule already included such wording because it stated that the Authority may hold a hearing or take other appropriate action, in the exercise of its discretion,
The heading of § 2424.23 is the same in the final rule as in the proposed rule. Further, § 2424.23(a) is the same in the final rule as in the proposed rule, with one exception. Whereas § 2424.23(a) of the proposed rule said that “[t]he FLRA may, in its discretion, schedule a post-petition conference,” § 2424.23(a) of the final rule says that “[t]he FLRA will, in its discretion, schedule a post-petition conference.” The word “may” was changed to “will” to emphasize that, in the vast majority of cases, a post-petition conference will be scheduled. Further, the phrase “in its discretion” already permits the Authority to exercise reasonable judgment in deciding whether to schedule a post-petition conference in a particular case, so the permissive “may” was not needed to signal such discretion.
Although the proposed rule did not include changes to § 2424.23(b)(3), the final rule adds the word “and” at the end of § 2424.23(b)(3), in order to introduce the following subsection. As this change is merely a grammatically correct way to introduce § 2424.23(b)(4), rather than a substantive change to § 2424.23(b)(3), this technical change falls within the scope of the proposed amendments to § 2424.23(b)(4).
Section 2424.23(b)(4) of the proposed rule was amended, and the amended version appears as § 2424.23(b)(4) of the final rule. Whereas the proposed rule addressed the status of “any proposal or provision that is also involved in” another proceeding, the final rule addresses the status of “any proceedings . . . that are directly related to the negotiability petition.” Thus, the scope of § 2424.23(b)(4) in the final rule is broader than § 2424.23(b)(4) in the proposed rule. The final rule requires parties to be prepared and authorized to discuss the status of any proceedings directly related to the negotiability petition, and not merely a particular proposal or provision that is involved in both the negotiability process and another proceeding. Further, including the “directly related” wording in § 2424.23(b)(4) of the final rule ensures consistency with § 2424.30, which states that the Authority will dismiss a petition for review when the exclusive representative has filed an unfair labor practice (ULP) charge or a grievance alleging a ULP, and the charge or grievance concerns issues “directly related” to the petition.
Section 2424.23(b) of the final rule deletes the wording currently located at 5 CFR 2424.23(b)(5) because the subject matter currently addressed at 5 CFR 2424.23(b)(5)—that is, extensions of time limits—is now addressed in § 2424.23(c) of the final rule. Section 2424.23(c) is the same in the final rule as in the proposed rule.
Section 2424.23(d) of the final rule differs from the proposed rule in three respects. First, rather than referring to “the representative of the FLRA,” as the proposed rule did, the final rule refers to “the FLRA representative.” Second, the final rule clarifies that the FLRA will serve the record of the conference on the parties: the FLRA representative conducting the conference will prepare the record but not serve it. Third, the final rule references “a written record,” rather than “a written statement” as in the proposed rule. “Record” is the term the FLRA uses to refer to this document in communications with parties and in Authority decisions, so the rule's wording was changed to correspond with these other uses.
Section 2424.23(e) is the same in the final rule as in the proposed rule.
OPM and an agency commenter supported the specificity requirements
The heading and § 2424.24(a) are the same in the final rule as in the proposed rule, with one minor, technical change. The final rule uses the term “outside the duty to bargain,” rather than “not within the duty to bargain,” to make the sentence read more clearly and to use the same wording that is set forth in § 2424.32(b). The change does not alter the sentence's meaning.
Although the proposed rule included changes to streamline § 2424.24(b), the final rule leaves the wording located at 5 CFR 2424.24(b) unchanged.
Section 2424.24(c)(2) is the same in the final rule as in the proposed rule.
Section 2424.24(c)(3) of the final rule differs from the proposed rule in several respects. The first part of § 2424.24(c)(3) of the final rule—in the portion that begins with the word “[s]tatus”—is changed from the proposed rule so that this portion of § 2424.24(c)(3) of the final rule mirrors § 2424.23(b)(4) of the final rule. The second part of § 2424.24(c)(3) of the final rule—in the portion that begins with “and whether”—is the same as in the proposed rule, except the word “and” has been deleted after the semicolon.
The paragraph identified as § 2424.24(c)(4) in the proposed rule is adopted but redesignated as § 2424.24(c)(3)(i) in the final rule, and the word “and” has been added to the end of this paragraph to introduce the final paragraph of § 2424.24(c) of the final rule. Section 2424.24 of the proposed rule eliminated the wording currently located at 5 CFR 2424.24(c)(4). However, § 2424.24 of the final rule maintains the wording currently located at 5 CFR 2424.24(c)(4), but that wording is supplemented so that it requires the petition to include any request for a hearing and the reasons supporting such request, “with the understanding that the Authority rarely grants such requests.” This additional proviso has been added to make parties aware that, as a matter of longstanding practice, the Authority very seldom grants hearing requests.
Like the proposed rule, § 2424.24 of the final rule deletes the paragraph currently located at 5 CFR 2424.24(d), and the final rule also redesignates the paragraph currently located at 5 CFR 2424.24(e) as the new § 2424.24(d) of the final rule.
OPM suggested that this section specify that untimely responses to statements of position will not be considered, absent a demonstration of good cause. Existing procedures for addressing untimely responses have proven adequate, so this suggestion has not been adopted.
OPM and an agency commenter supported the specificity requirements of this section as promoting prompt and focused resolutions to disputes.
One commenter suggested that the section should clarify that a response is optional if the exclusive representative does not have any additional arguments that were not already set forth in the petition for review. This concern is adequately addressed by § 2424.25(c) of the final rule, which states that the response is limited to matters that the agency raised in its statement of position, and that the exclusive representative is not obligated to repeat arguments that were made in the petition for review.
One commenter specifically supported the idea of granting severance automatically—as suggested in the proposal notices under severance “Option 2”—and that commenter also advocated making severance available in the response. Except for one point that was already addressed in connection with § 2424.22 about disputes over whether an exclusive representative satisfied its burdens related to automatic severance, commenters did not specifically oppose providing severance automatically when it was sought. To be clear, some commenters did advocate for eliminating severance altogether, but those commenters did not provide specific reasons why—if severance were retained in some fashion—it should not occur automatically when sought.
Section 2424.25(a) is the same in the final rule as in the proposed rule, except that, instead of the word “union” as in the proposed rule, the final rule uses the term “exclusive representative.”
Although the proposed rule included changes to streamline § 2424.25(b), the final rule leaves the wording located at 5 CFR 2424.25(b) unchanged.
Section 2424.25(c) is the same in the final rule as in the proposed rule, except for the fourth complete sentence in § 2424.25(c). The fourth complete sentence in § 2424.25(c) of the proposed rule stated, “You must limit your response to the matters that the agency raised in its statement of position.” By contrast, the fourth complete sentence in § 2424.25(c) of the final rule states, “With the exception of severance under paragraph (d) of this section, you must limit your response to the matters that the agency raised in its statement of position.” Thus, this sentence in the final rule allows for the accomplishment of severance in the exclusive representative's response, but otherwise, the response is limited to the matters that the agency raised in its statement of position.
Section 2424.25 of the proposed rule deleted the severance wording currently located at 5 CFR 2424.25(d), and the proposed rule redesignated the wording currently located at 5 CFR 2424.25(e) as the new § 2424.25(d).
As mentioned during the earlier discussion of severance in connection with the content of a petition for review under § 2424.22, the final rule makes a modified severance procedure available under § 2424.25. Thus, unlike the proposed rule, § 2424.25 of the final rule does not completely delete the severance paragraph currently located at 5 CFR 2424.25(d). Instead, the final rule amends that paragraph to allow the exclusive representative, of its own accord, to accomplish severance of a previously submitted proposal or provision. Section 2424.25(d) of the final rule explains how the exclusive representative may accomplish severance of its own accord and describes how the exclusive representative's accomplishment of severance must aim to satisfy the exclusive representative's burdens under §§ 2424.25(c) and 2424.32. This approach is consistent with severance “Option 2,” as described in the proposal notices in connection with § 2424.22 of the proposed rule.
Under § 2424.25(d) of the final rule, the exclusive representative must identify the proposal or provision that the exclusive representative is severing and set forth the exact wording of the newly severed portion(s). At that point, under the final rule, severance will have been accomplished, creating revised or new proposals or provisions. However, under the final rule, consistent with FLRA case law, the exclusive representative will maintain the burden of establishing why, despite an agency's objections, the newly severed proposals or provisions are within the duty to bargain or not contrary to law. That burden includes explaining how the newly severed proposals or provisions operate and stand alone with independent meaning. Moreover, under the final rule, if the exclusive representative accomplishes severance of its own accord but fails to meet the associated burdens under § 2424.25(c) or § 2424.32, then the Authority would dismiss the petition as to the newly severed proposals or provisions, based on the exclusive representative's failure
An exclusive representative must be especially attentive to its burdens in connection with accomplishing severance, particularly because a response is ordinarily an exclusive representative's last filing in a negotiability case. Whereas insufficiently explained proposals or provisions in a petition may often be clarified in the record of a later post-petition conference, it is unlikely (although not impossible) that a post-petition conference will occur after the filing of a response.
Section 2424.25(e) of the final rule leaves the wording currently located at 5 CFR 2424.25(e) unchanged.
OPM suggested that this section specify that untimely replies will not be considered, absent a demonstration of good cause. Existing procedures for addressing untimely replies have proven adequate, so this suggestion has not been adopted.
Two commenters opposed § 2424.26(b) of the proposed rule because that paragraph changed the time limit for filing a reply from fifteen days (under the existing rule) to ten days from the date of receipt of the exclusive representative's response. OPM supported shortening the time limit. As discussed further below, the final rule does not change the time limit.
The heading and § 2424.26(a) are the same in the final rule as in the proposed rule. Although the proposed rule included changes to § 2424.26(b)—concerning the time limit for filing a reply—the final rule leaves the wording located at 5 CFR 2424.26(b) unchanged.
Section 2424.22(c) is the same in the final rule as in the proposed rule, with one exception. The sixth full sentence of § 2424.22(c) of the final rule ends with the word “respectively,” which was not part of the proposed rule.
Section 2424.26 of the proposed rule deleted the severance wording currently located at 5 CFR 2424.26(d), and the proposed rule redesignated the wording currently located at 5 CFR 2424.25(e) as the new § 2424.25(d). The final rule adopts these changes in full.
One commenter suggested that the paragraph about additional submissions include a time limit for when such submissions must be filed. This paragraph is mostly aimed at addressing unexpected developments that cannot be adequately discussed in the filings that the negotiability regulations already recognize. For that reason, it is unclear what event would trigger a time limit for additional submissions, and the commenter did not suggest any point at which to begin measuring such a time limit. Further, one purpose of this section is to allow filings even late in negotiability proceedings, if sufficiently important developments could affect the Authority's eventual decision and order. A time limit would impede that purpose. Thus, this suggestion has not resulted in changes to the rule.
The proposed rule removed—from the paragraph currently located at the 5 CFR 2424.27—the five-day deadline for filing an additional submission, after receipt of an Authority order granting permission to file that submission. A union commenter opposed this change because the proposed rule did not provide an alternate deadline. As discussed further below, the final rule addresses this issue by requiring that any additional submission be filed simultaneously with the request for permission to file that additional submission.
The same union commenter also characterized this paragraph as creating a process for third parties to submit documents for the Authority's consideration in a negotiability case. That is, the commenter believed that the paragraph concerned filings that are not submitted by the parties to a case. However, the commenter's characterization misconstrued the paragraph. Both before and after revisions, the beginning of the paragraph states that “[t]he Authority will not consider any submission filed by any party other than those authorized under this part,” and then the remainder of the paragraph sets forth a process for granting exceptions to that prohibition. 5 CFR 2424.27. The reference to “any party” does not permit
Section 2424.27 of the final rule adopts the heading and all of the wording from the proposed rule, but § 2424.27 of the final rule also includes one additional sentence that comes from the wording currently located at 5 CFR 2424.27. Specifically, the additional sentence in the final rule that was not present in the proposed rule states, “The additional submission must be filed with the written request.” The “written request” in this additional sentence is a written request to file an additional submission in a negotiability proceeding based on a showing of extraordinary circumstances.
One union commenter and one agency commenter supported the proposed clarifications in this section about when a grievance alleging a ULP would be considered administratively resolved. These commenters stated that the proposed rule identified all of the circumstances that, to their knowledge, could be considered an administrative resolution that would trigger the thirty-day deadline for an exclusive representative to refile a directly related negotiability petition that was previously dismissed without prejudice. The final rule adopts these clarifications from the proposed rule in full.
The same union commenter suggested that, because this section would now list the possible administrative resolutions for a grievance alleging a ULP, the section should also list the possible administrative resolutions for a ULP charge that prompted the dismissal of a negotiability petition without prejudice. The commenter should refer to the ULP regulations in part 2423 for guidance about potential administrative
An agency commenter suggested that § 2424.30(b)(2) of the proposed rule state that where an agency makes only bargaining obligation claims, and not negotiability claims, those bargaining obligation claims will not be resolved through the negotiability process. The clarification that this commenter sought is already present in § 2424.2(d)'s definition of a petition for review, so this suggestion has not resulted in changes to § 2424.30 of the final rule.
OPM contended that the Authority should not automatically dismiss petitions for review without prejudice when an exclusive representative has filed a ULP charge or grievance alleging a ULP, and the charge or grievance concerns issues directly related to the petition for review. Instead, OPM advocated a case-by-case assessment of which forum would most expeditiously resolve the parties' disputes. According to OPM, if the Authority determines that the negotiability process would provide the most expeditious resolution, then the Authority should not dismiss a petition for review (without prejudice) while the parties' directly related disputes proceed toward resolution in another forum. When the Authority amended its negotiability regulations to allow for the resolution of bargaining obligation disputes that accompany negotiability disputes, the Authority declined to adopt a commenter's suggestion that, if directly related disputes were filed in multiple forums, then an exclusive representative should have the right to determine which forum proceeds to a resolution first. On that point, the Authority stated that ULP “proceedings are, in these situations, better suited to resolving the entire dispute.” Negotiability Proceedings, 63 FR 66405, 66410 (Dec. 2, 1998). The Authority explained further:
[W]ith the sole exception of compelling need claims . . . all bargaining obligation and negotiability claims may be adjudicated in [a ULP] proceeding. Further, unless excluded from the scope of the parties' grievance procedure by agreement, alleged [ULPs] may be resolved under such negotiated procedures. Thus, with one exception, dismissing petitions for review where [ULP] charges have been filed does not jeopardize a party's ability to obtain adjudication of all claims. In addition, . . . with the exception of orders to bargain, remedies available in [ULP] proceedings under 5 U.S.C. 7118(a)(7) are not . . . available in Authority decisions and orders issued under this part. Accordingly, in situations where an exclusive representative has filed [a ULP] charge, requiring adjudication in a negotiability proceeding would deprive a prevailing exclusive representative of such remedies.
OPM also suggested that the section state that if an exclusive representative files a ULP charge that solely concerns an allegation of nonnegotiability, then the Authority may choose to process the ULP charge as a negotiability appeal. However, OPM did not provide any legal authority to establish that an exclusive representative's choice of forum may be overruled in that manner, so this suggestion has not been adopted.
The heading; § 2424.30(a)—including subsections (a)(1), (2), (3), and (4); and § 2424.30(b) and (b)(1) are the same in the final rule as in the proposed rule.
Section 2424.30(b)(2) of the final rule differs from the proposed rule only in its first sentence. This sentence concerns how the Authority will process a petition for review when an exclusive representative has not already filed a related ULP charge or a grievance alleging a ULP, but a bargaining obligation dispute exists in connection with the petition for review. The first sentence of § 2424.30(b)(2) of the proposed rule stated, in pertinent part, “The exclusive representative may file an unfair labor practice charge pursuant to part 2423 of this subchapter or a grievance under the parties' negotiated grievance procedure concerning the bargaining obligation dispute . . . .” In contrast, the first sentence of § 2424.30(b)(2) of the final rule states, in pertinent part, “The exclusive representative may have an opportunity to file an unfair labor practice charge pursuant to part 2423 of this subchapter or a grievance under the parties' negotiated grievance procedure concerning the bargaining obligation dispute . . . .” This sentence was changed to avoid implying that, if an exclusive representative files a petition that involves a bargaining obligation dispute, then the exclusive representative is entitled to file a ULP charge or grievance alleging a ULP, irrespective of the ordinary legal and contractual conditions that would otherwise apply to these filings. Thus, this portion of the first sentence of § 2424.30(b)(2) of the final rule uses the phrase “may have an opportunity to file” to indicate that, if an exclusive representative files a ULP charge or grievance as described in this subsection, then those filings would be subject to all of the otherwise applicable conditions that ordinarily apply to such filings—such as, for example, time limits. The remainder of § 2424.30(b)(2) of the final rule is the same as the proposed rule.
One commenter disagreed that this section should allow for hearings or other appropriate action to resolve bargaining obligation disputes since this part of the Authority's Regulations concerns negotiability proceedings. The procedures of this section would apply only to bargaining obligation disputes that may be resolved in a negotiability appeal because they are accompanied by negotiability disputes concerning the same proposal or provision.
A union commenter stated that, to the extent that the final rule is intended to preclude the consideration of parties' views about whether a hearing is needed, the commenter opposes that change. The final rule is not intended to preclude the consideration of the parties' views, and none of the changes to the rule expressly state or imply that the Authority will not consider the parties' views. Thus, this concern is misplaced.
Section 2424.31 is the same in the final rule as in the proposed rule.
An agency commenter recommended adding the phrase “or government-wide regulation” after the phrase “contrary to law” in § 2424.32(a) and (b). This change has not been made because this section's use of the phrase “contrary to law” is intended to encompass all authorities with the force and effect of law—not merely statutes.
A union commenter opposed the newly created burden under § 2424.32(c) of the proposed rule that each party must give sufficiently detailed explanations to enable the Authority to understand the party's position regarding the meaning, operation, and effects of a proposal or provision. The commenter noted that § 2424.32(c) cautioned that the Authority's decision may be adverse to
The heading and § 2424.32(a) are the same in the final rule as in the proposed rule.
Section 2424.32(b) of the final rule differs from the proposed rule in one respect. Whereas § 2424.32(b) of the proposed rule stated that “[t]he agency has the burden of explaining the meaning, operation, and effects of the proposal or provision, if the agency disagrees with the exclusive representative's explanations”; § 2424.32(b) of the final rule states that “[t]he agency has the burden of explaining the agency's understanding of the meaning, operation, and effects of the proposal or provision, if the agency disagrees with the exclusive representative's explanations.” Unlike the proposed rule, § 2424.32(b) of the final rule assigns the agency the burden of explaining
The wording in § 2424.32(b) of the final rule is consistent with § 2424.24(c)(2)(i) of the final rule, in which agencies are instructed that their statements of positions must include, “[i]f different from the exclusive representative's position, an explanation of the
Further, § 2424.32(b) of the final rule is consistent with Authority precedent that when the parties disagree about a proposal's meaning, then the Authority relies on the exclusive representative's explanation of the proposal's meaning to assess whether the proposal is within the duty to bargain, as long as the exclusive representative's explanation comports with the proposal's wording.
Moreover, § 2424.32(b) of the final rule accounts for cases where an exclusive representative explains a proposal's meaning, but that explanation does not comport with the proposal's wording. Under those circumstances, if the agency disagrees with the exclusive representative's explanation, then the agency bears the burden of explaining (1) the agency's understanding of the proposal and how that understanding comports with the proposal's wording; and (2) why the exclusive representative's alternate explanation does not comport with the proposal's wording.
The remainder of § 2424.32(b) of the final rule is the same as the proposed rule.
Section 2424.32(c); (d)—including subsections (d)(1), (d)(1)(i), (d)(1)(ii), and (d)(2); and (e) of the final rule are the same as the proposed rule.
None of the public comments addressed § 2424.40. Section 2424.40 is the same in the final rule as in the proposed rule, except for one phrase that has been added in the final rule. The second complete sentence of § 2424.40(b) in the proposed rule stated, “If the Authority finds that the duty to bargain does not extend to the proposal, then the Authority will dismiss the petition for review.” In § 2424.40(b) of the final rule, the second half of this sentence states, “then the Authority will dismiss the petition for review as to that proposal.” This change makes § 2424.40(b) of the final rule consistent with § 2424.40(c) of the final rule, which states, “If the Authority finds that a provision is contrary to law, rule, or regulation, then the Authority will dismiss the petition for review
None of the public comments addressed § 2424.41. Section 2424.41 is the same in the final rule as in the proposed rule, with one exception. Section 2424.41 of the proposed rule stated that an exclusive representative must report to the appropriate Regional Director an agency's failure to comply with an order issued in accordance with § 2424.40 “within thirty (30) days following expiration of the 60-day period under 5 U.S.C. 7123(a).” By contrast, § 2424.41 of the final rule reverts to wording currently located at 5 CFR 2424.41. Thus, § 2424.41 of the final rule states that an exclusive representative must report an agency's failure to comply with an order “within a reasonable period of time following expiration of the 60-day period under 5 U.S.C. 7123(a).”
Two union commenters opposed changing the regulatory definition of compelling need in a way that would permit the Authority to find that circumstances other than those listed in the illustrative examples demonstrated the existence of compelling need. These same commenters opposed adding any additional examples to the illustrative criteria.
One commenter provided six additional examples to consider adding to the illustrative criteria.
OPM supported changing the regulatory definition of compelling need in a way that would permit the Authority to find that circumstances other than those listed in the illustrative criteria demonstrated the existence of compelling need.
OPM requested that the section specify that compelling need arguments may be merely one of several grounds for an allegation of nonnegotiability. OPM also asked that the section include additional explanation about what constitutes an agency rule or regulation. These requests were not germane to the definition of a compelling need—which is the subject of this section—so they were not incorporated into the final rule.
OPM suggested removing the reference to “the accomplishment of the mission or the execution of functions of
One agency commenter argued that all agency rules that have general applicability to the agency's workforce should demonstrate a compelling need. This argument is rejected because it would allow agencies to render topics nonnegotiable merely by issuing a regulation of general applicability. This same commenter argued that executive orders should qualify as “mandate[s] to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature,” under § 2424.50(c). Nothing in the rule prevents a party from making that argument in the context of a concrete dispute, but the final rule does not include a blanket statement to that effect.
The Department of Veterans Affairs argued that agency rules and regulations concerning pandemics, epidemics, or other similar emergency situations should be treated as rules and regulations supported by a compelling need, particularly because of the Department's healthcare responsibilities. The Department may advance that argument in the context of a concrete dispute, but the final rule does not include a blanket statement to that effect.
Ultimately, the comments on additional examples to add to § 2424.50 were varied and conflicting. The final rule retains the examples already set forth at 5 CFR 2424.50. However, as explained further below, the final rule does not include any additional examples in the illustrative criteria. In addition, the final rule does not include a phrase that would recognize the Authority's ability to determine that a compelling need exists based on circumstances other than those in the illustrative criteria.
Section 2424.50 of the final rule differs from the proposed rule in several respects. Like § 2424.50 of the proposed rule, § 2424.50 of the final rule adds to the middle of the introductory paragraph the following wording that does not currently appear in 5 CFR 2424.50: “the rule or regulation was issued by the agency or any primary national subdivision of the agency, and.” This additional wording recognizes requirements from Section 7117(a)(3) of the Statute—concerning agency rules or regulations for which a compelling need exists—as part of § 2424.50 of the final rule, which provides a regulatory definition for compelling need.
After the concluding word “and” in the additional wording discussed in the preceding paragraph, § 2424.50 of the proposed rule stated that “the agency demonstrates that either the rule or regulation meets one or more of the following illustrative criteria, or the Authority determines that other circumstances establish a compelling need for the rule or regulation.” By contrast, after the concluding word “and” in the additional wording discussed in the preceding paragraph, § 2424.50 of the final rule states that “the agency demonstrates that the rule or regulation satisfies one of the following illustrative criteria.” As such, the final rule departs from the proposed rule in that the final rule does not state that the Authority may determine that “other circumstances establish a compelling need for the rule or regulation.” Further, the final rule changes the phrase “one or more of the following illustrative criteria” from the proposed rule to simply “one of the following illustrative criteria.” This change was made because a compelling need exists if any one of the illustrative criteria is satisfied, and it will ordinarily be unnecessary for the Authority to determine that a rule or regulation satisfies multiple illustrative criteria. However, this change does not preclude the possibility that a rule or regulation could satisfy more than one of the illustrative criteria.
In connection with § 2424.50, the proposal notices solicited suggestions for more illustrative criteria that could be added to the criteria currently located at 5 CFR 2424.50. Although the FLRA appreciates the time that commenters dedicated to suggesting additional illustrative criteria, the final rule does not adopt any additional criteria. Under the final rule, the illustrative criteria currently located at 5 CFR 2424.50(a), (b), and (c) remain unchanged.
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chairman of the FLRA has determined that this final rule will not have a significant impact on a substantial number of small entities, because this final rule applies only to Federal agencies, Federal employees, and labor organizations representing those employees.
The FLRA is an independent regulatory agency and thus is not subject to the requirements of E.O. 12866 (58 FR 51735, Sept. 30, 1993).
The FLRA is an independent regulatory agency and thus is not subject to the requirements of E.O. 13132 (64 FR 43255, Aug. 4, 1999).
This final rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The amended regulations contain no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
Negotiability Proceedings.
For the reasons stated in the preamble, the Federal Labor Relations Authority amends 5 CFR part 2424 as set forth below:
5 U.S.C. 7134.
This part applies to all petitions for review filed on or after October 12, 2023.
In this part, the following definitions apply:
(a)
(1) A proposal concerns a matter that is covered by a collective bargaining agreement;
(2) Bargaining is not required because there has not been a change in bargaining-unit employees' conditions of employment or because the effect of the change is de minimis; and
(3) The exclusive representative is attempting to bargain at the wrong level of the agency.
(c) * * *
(2) Affects bargaining-unit employees' conditions of employment;
(3) Enforces an “applicable law,” within the meaning of 5 U.S.C. 7106(a)(2);
(4) Concerns a matter negotiable at the election of the agency under 5 U.S.C. 7106(b)(1);
(5) Constitutes a “procedure” or “appropriate arrangement,” within the meaning of 5 U.S.C. 7106(b)(2) and (3), respectively;
(6) Is consistent with a Government-wide rule or regulation; and
(7) Is negotiable notwithstanding agency rules or regulations because:
(i) The proposal or provision is consistent with agency rules or regulations for which a compelling need exists under 5 U.S.C. 7117(a)(2);
(ii) The agency rules or regulations violate applicable law, rule, regulation, or appropriate authority outside the agency;
(iii) The agency rules or regulations were not issued by the agency or by any primary national subdivision of the agency;
(iv) The exclusive representative represents an appropriate unit including not less than a majority of the employees in the rule- or regulation-issuing agency or primary national subdivision; or
(v) No compelling need exists for the rules or regulations to bar negotiations.
(e)
(f)
Where an exclusive representative and an agency are unable to resolve disputes that arise under this part, they may request assistance from the Collaboration and Alternative Dispute Resolution (CADR) Program or the Office of Case Intake and Publication (CIP), which will refer requests to the CADR Program. Upon request, as resources permit, and as agreed upon by the parties, CADR representatives will attempt to assist the parties to resolve these disputes. Parties seeking information or assistance under this part may call the CADR Office at (771) 444-5802 or the Office of CIP at (771) 444-5805, or write those offices at 1400 K Street NW, Washington, DC 20424-0001. A brief summary of CADR activities is available on the internet at
(a)
(b)
©
(b) If the agency has not served a written allegation on the exclusive representative within ten (10) days after the agency's principal bargaining representative has received a written request for such allegation, as provided in § 2424.11(a), then the petition may be filed at any time, subject to the following:
(1) If the agency serves a written allegation on the exclusive representative more than ten (10) days after receiving a written request for such allegation, then the petition must be filed within fifteen (15) days after the date of service of that allegation on the exclusive representative.
(2) [Reserved]
(a)
(b)
I
(1) The exact wording and explanation of the meaning of the proposal or provision, including an explanation of special terms or phrases, technical language, or other words that are not in common usage, as well as how the proposal or provision is intended to work;
(2) Specific citation to any law, rule, regulation, section of a collective bargaining agreement, or other authority that you rely on in your argument or that you reference in the proposal or provision, and a copy of any such material that the Authority cannot easily access (which you may upload as attachments if you file the petition electronically through use of the FLRA's eFiling system);
(i) An explanation of how the cited law, rule, regulation, section of a collective bargaining agreement, or other authority relates to your argument, proposal, or provision;
(ii) [Reserved]
(3) A statement as to whether the proposal or provision is also involved in an unfair labor practice charge under part 2423 of this subchapter, a grievance pursuant to the parties' negotiated grievance procedure, or an impasse procedure under part 2470 of this subchapter, and whether any other petition for review has been filed concerning a proposal or provision arising from the same bargaining or the same agency head review;
(i) Documents relevant to the statement, including a copy of any related unfair labor practice charge, grievance, request for impasse assistance, or other petition for review; and
(ii) [Reserved]
(4) Any request for a hearing before the Authority and the reasons supporting such request, with the understanding that the Authority rarely grants such requests.
(a)
(b)
(1) The meaning of the proposal or provision in dispute;
(2) Any disputed factual issue(s);
(3) Negotiability dispute objections and bargaining obligation claims regarding the proposal or provision; and
(4) Status of any proceedings—including an unfair labor practice charge under part 2423 of this subchapter, a grievance under the parties' negotiated grievance procedure, or an impasse procedure under part 2470 of this subchapter—that are directly related to the negotiability petition.
€
(d)
(e)
(a)
(b)
I
(1) Withdraw either:
(i) The allegation that the duty to bargain in good faith does not extend to the exclusive representative's proposal, or
(ii) The disapproval of the provision under 5 U.S.C. 7114(c); or
(2) Set forth in full your position on any matters relevant to the petition that you want the Authority to consider in reaching its decision, including: A statement of the arguments and authorities supporting any bargaining obligation or negotiability claims; any disagreement with claims that the exclusive representative made in the petition for review; specific citation to, and explanation of the relevance of, any law, rule, regulation, section of a collective bargaining agreement, or other authority on which you rely; and a copy of any such material that the Authority may not easily access (which you may upload as attachments if you file your statement of position electronically through use of the FLRA's eFiling system). Your statement of position must also include the following:
(i) If different from the exclusive representative's position, an explanation of the meaning the agency attributes to the proposal or provision and the reasons for disagreeing with the exclusive representative's explanation of meaning;
(ii) If different from the exclusive representative's position, an explanation of how the proposal or provision would work, and the reasons for disagreeing with the exclusive representative's explanation;
(3) Status of any proceedings—including an unfair labor practice charge under part 2423 of this subchapter, a grievance under the parties' negotiated grievance procedure, or an impasse procedure under part 2470 of this subchapter—that are directly related to the negotiability petition, and whether any other petition for review has been filed concerning a
(i) If they have not already been provided with the petition, documents relevant to the status updates, including a copy of any related unfair labor practice charge, grievance, request for impasse assistance, or other petition for review; and
(ii) [Reserved]
(4) Any request for a hearing before the Authority and the reasons supporting such request, with the understanding that the Authority rarely grants such requests.
(d)
(a)
(b)
©
(d)
(a)
(b)
(c)
(d)
The Authority will not consider any submission filed by any party other than those authorized under this part, provided however that the Authority may, in its discretion, grant permission to file an additional submission based on a written request showing extraordinary circumstances by any party. The additional submission must be filed with the written request. All documents filed under this section must be served in accord with § 2424.2(g).
(a)
(1) The exclusive representative withdraws the grievance;
(2) The parties mutually resolve the grievance;
(3) An arbitrator has issued an award resolving the grievance, and the 30-day period under 5 U.S.C. 7122(b) has passed without an exception being filed; or
(4) An arbitrator has issued an award resolving the grievance, a party has filed an exception to that award, and the Authority has issued a decision resolving that exception.
(b)
(1)
(2)
When necessary to resolve disputed issues of material fact in a negotiability or bargaining obligation dispute, or when it would otherwise aid in decision making, the Authority, or its designated representative, may, in its discretion:
(c) Refer the matter to a hearing pursuant to 5 U.S.C. 7117(b)(3) or (c)(5); or
(a)
(b)
(c)
(d)
(1) Failure to raise and support an argument may, in the Authority's discretion, be deemed a waiver of such argument. Absent good cause:
(i) Arguments that could have been but were not raised by an exclusive representative in the petition for review, or made in its response to the agency's statement of position, may not be made in this or any other proceeding; and
(ii) Arguments that could have been but were not raised by an agency in the statement of position, or made in its reply to the exclusive representative's response, may not be raised in this or any other proceeding.
(2) Failure to respond to an argument or assertion raised by the other party may, in the Authority's discretion, be treated as conceding such argument or assertio©(e)
(b)
(d)
The exclusive representative may report to the appropriate Regional Director an agency's failure to comply with an order issued in accordance with § 2424.40. The exclusive representative must report such failure within a reasonable period of time following expiration of the 60-day period under 5 U.S.C. 7123(a), which begins on the date of issuance of the Authority order. If, on referral from the Regional Director, the Authority finds such a failure to comply with its order, the Authority will take whatever action it deems necessary to secure compliance with its order, including enforcement under 5 U.S.C. 7123(b).
A compelling need exists for an agency rule or regulation concerning any condition of employment when the rule or regulation was issued by the agency or any primary national subdivision of the agency, and the agency demonstrates that the rule or regulation satisfies one of the following illustrative criteria:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the Class E airspace at Quincy, IL. This action is the result of an airspace review caused by the decommissioning of the Quincy very high frequency omnidirectional range (VOR) as part of the VOR Minimum Operating Network (MON) Program. The name and geographic coordinates of the airport and name of the navigational aid are also being updated to coincide with the FAA's aeronautical database.
Effective 0901 UTC, November 30, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E surface airspace and the Class E airspace extending upward from 700 feet above the surface at Quincy Regional Airport-Baldwin Field, Quincy IL, to support instrument flight rule (IFR) operations at this airport.
The FAA published an NPRM for Docket No. FAA-2023-1389 in the
Class E airspace designations are published in paragraphs 6002 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This amendment to 14 CFR part 71:
Modifies the Class E surface airspace to within a 4.3-mile (increased from a 4.2-mile) radius of Quincy Regional Airport-Baldwin Field, Quincy, IL; removes the Quincy VORTAC and associated extension from the airspace legal description; updates the name (previously Quincy Municipal Baldwin Field) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replaces the outdated terms “Notice to Airmen” with “Notice to Air Missions” and “Airport/Facility Directory” with “Chart Supplement”;
And modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.8-mile (decreased from a 7.1-mile) radius of Quincy Regional Airport-Baldwin Field; amends the extension to the southwest to within 4 miles each side (previously 4.4 miles northwest and 7 miles southeast) of the 220° bearing from the Quincy RGNL-Baldwin FLD: RWY 04—Marker Beacon (previously Quincy ILS localizer southwest course) extending from the 6.8-mile (previously 7-mile) radius of the Quincy Regional Airport-Baldwin Field to 9.8 miles (previously 10.4 miles) southwest of the Quincy RGNL-Baldwin FLD: RWY 04—Marker Beacon (previously Quincy LOM/NDB); and updates the name and geographic coordinates of Quincy Regional Airport-
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Within a 4.3-mile radius of Quincy Regional Airport-Baldwin Field. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective dates and times will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Quincy Regional Airport-Baldwin Field; and within 4 miles each side of the 220° bearing from the Quincy RGNL-Baldwin FLD: RWY 04—Marker Beacon extending from the 6.8-mile radius of the Quincy Regional Airport-Baldwin Field to 9.8 miles southwest of the Quincy RGNL-Baldwin FLD: RWY 04—Marker Beacon.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters of the Savannah River during the Air National Guard F-22A Raptor aircraft demonstration event. The safety zone is necessary to ensure the safety of persons, vessels, and the marine environment during the event. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Savannah or a designated representative.
This rule is effective from 10 a.m. through 1 p.m. on September 13, 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 Lieutenant Junior Grade Anthony Harris, Shoreside Compliance, Marine Safety Unit Savannah, U.S. Coast Guard; telephone 912-652-4353, email
The Coast Guard is issuing this temporary final 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 and contrary to the public interest. The Coast Guard did not receive final details of the event until August 22, 2023, and the event is scheduled to take place on September 13, 2023. The event would begin before the rulemaking process would be completed. Because of the dangers posed by the aerial demonstration of the Air National Guard's F-22A Raptor aircraft, a safety zone is necessary without delay to ensure the safety of persons, vessels, and the marine
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port (COTP) Savannah has determined that potential hazards associated with the Air National Guard's aerial demonstration of the F-22A Raptor aircraft will be a safety concern for anyone located within Tybee Island and certain waters of the navigable waters of the Savannah River. This rule is necessary to ensure the safety of persons, vessels, and the marine environment during the Air National Guard's F-22A Raptor demonstration event.
This rule establishes a safety zone on on certain navigable waters located within the line connecting points beginning at 31°59′43.62″ N, 080°49′58.74″ W, thence to 31°58′56.66″ N, 080°50′16.73″ W, thence to 31°59′5.73″ N, 080°50′49.50″ W, thence to 31°59′52.64″ N, 080°50′31.52″ W, and back to the beginning point, during the Air National Guard's aerial demonstration of the F-22A Raptor aircraft. The safety zone will be enforced from 10:00 a.m. to 1:00 p.m. on September 13, 2023. No person or vessel will be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the COTP or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP or a designated representative. The Coast Guard will provide notice of the safety zone by Broadcast Notice to Mariners, and/or by on-scene designated representatives.
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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the location, duration, and time-of-day of the safety zone. This rule involves a safety zone that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable waters of the Atlantic Ocean during an aerial demonstration lasting three hours. Although persons and vessels may not enter, transit through, anchor in, or remain within the zone without authorization from the COTP or a designated representative, they will be able to safely transit around the safety zone. 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 would 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 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
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 that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable waters of the Atlantic Ocean located within the line connecting points beginning at 31°59′43.62″ N, 080°49′58.74″ W, thence to 31°58′56.66″ N, 080°50′16.73″ W, thence to 31°59′5.73″ N, 080°50′49.50″ W, thence to 31°59′52.64″ N, 080°50′31.52″ W, and back to the beginning point, during Air National Guard's aerial demonstration of the F-22A Raptor aircraft lasting three hours. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(2) Persons or vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact COTP by telephone at 912-247-0073, or a designated representative via VHF radio on channel 16, to request authorization. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP Savannah or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Broadcast Notice to Mariners via VHF-FM channel 16, and/or by on-scene designated representatives.
(d)
United States Patent and Trademark Office, U.S. Department of Commerce.
Final rule; delay of effective date.
On November 17, 2021, the United States Patent and Trademark Office (USPTO) published in the
As of September 12, 2023, the effective date for amendatory instructions 29, 30, 31, 33, 34, 37, 38, and 39 amending 37 CFR 2.163, 2.165, 2.176, 2.184, 2.186, 7.6, 7.39, and 7.40, respectively, in the final rule published at 86 FR 64300 on November 17, 2021, delayed at 87 FR 62032 on October 13, 2022, is delayed indefinitely. Also, as of September 12, 2023, the effective date of the amendment to 37 CFR 2.6 in the final rule published at 87 FR 62032 on October 13, 2022, is delayed indefinitely. The USPTO will publish a forthcoming
Catherine Cain, Office of the Deputy Commissioner for Trademark Examination Policy, at 571-272-8946. You can also send inquiries to
On November 17, 2021, the USPTO published in the
On October 13, 2022, the USPTO published in the
Under this final rule, the USPTO is further delaying the provisions that address post-registration responses and extensions. The USPTO anticipates that these provisions will go into effect sometime in the spring or early summer of 2024.
The USPTO is currently upgrading its internal and public databases, search system, and internal examination systems. These major updates will provide far-reaching efficiencies for both customers and staff. The implementation of the regulatory changes to post-registration responses and extensions cannot be completed until the migration to the new systems is complete. The USPTO anticipates that this will occur in the spring or early summer of 2024. The delay will also provide the public with additional time to prepare for the new response periods. The USPTO will publish a final rule in the
In the final rule published at 86 FR 64300, the cross-reference in 37 CFR 7.40(b) to “§ 7.39(b) and (c)” is incorrect. The reference should have been to “§ 7.39(a) and (b).” When the USPTO publishes a final rule providing the new effective date of the provisions addressing post-registration responses and extensions, that section will also be corrected.
Accordingly, prior notice and an opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law.
Moreover, the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, pursuant to the authority at 5 U.S.C. 553(b)(B), finds good cause to adopt the change to the effective date without prior notice and an opportunity for public comment, as such procedures would be impracticable and contrary to the public interest. The USPTO is currently upgrading its internal and public databases, search system, and internal examination systems. These major updates will provide far-reaching efficiencies for both customers and staff. The implementation of the regulatory changes to post-registration responses and extensions cannot be completed until the migration to the new systems is complete. The USPTO anticipates that this will occur in the spring or early summer of 2024. The delay will also provide the public with additional time to prepare for the new response periods. Delay of this provision to provide prior notice and comment procedures is also impracticable because it would allow the provisions to go into effect before the agency is ready to implement the regulatory changes regarding post-registration responses and extensions.
The Director also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of this rule. Immediate implementation of the delay in the effective date is in the public interest because it will provide the agency the ability to effectively manage and utilize the resources needed to complete all these initiatives. The delay will also provide the public with additional time to prepare for the new response periods. Delay of this rule to provide for the 30-day delay in effectiveness is impracticable because it would allow the provisions to go into effect before the agency is ready to implement the regulatory changes regarding post-registration responses and extensions.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of fluazaindolizine in or on multiple commodities that are identified and discussed later in this document. E.I. du Pont de Nemours & Company (“DuPont”, now Corteva) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective September 12, 2023. Objections and requests for hearings must be received on or before November 13, 2023, and must be filed in accordance with the instructions provided in 40 CFR part
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2020-0065, is available online at
Charles Smith, Director, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-1030; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0065 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 13, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0065, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
In the
Based upon review of the data supporting the petition, EPA is establishing tolerances at different levels than petitioned-for and has determined that tolerances for certain petitioned-for commodities are not necessary. The Agency has also modified all of the commodity definitions used and updated certain crop groups. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluazaindolizine including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluazaindolizine follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The main target organs of fluazaindolizine are the urinary tract (rat and mouse), liver and/or gallbladder (mouse and dog), and hematopoietic system (dog). In the mouse carcinogenicity study, the incidence and severity of amyloidosis in specific tissues was increased in both sexes. There was no evidence of increased
Specific information on the studies received and the nature of the adverse effects caused by fluazaindolizine as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for fluazaindolizine used for
1.
i.
No such effects were identified in the toxicological studies for fluazaindolizine; therefore, a quantitative acute dietary exposure assessment is unnecessary.
ii.
iii.
iv.
2.
Separate estimated drinking water concentrations (EDWCs) were calculated for the metabolite IN-VM862 and a combination of fluazaindolizine and the other metabolites IN-QEK31, IN-REG72, IN-F4106, and IN-A5760, due to greater toxicological potency of IN-VM862. This combination is referred to as the Fluazaindolizine Drinking Water Total Residue Fraction (FDWTRF). Based on the Pesticide Water Calculator (PWC), EPA used an EDWC of 990 ppb for FDWTRF and 1,300 ppb for IN-VM862 in the chronic dietary risk assessment.
3.
4.
Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fluazaindolizine and any other substances and fluazaindolizine does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fluazaindolizine has a common mechanism of toxicity with other substances.
For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
1.
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3.
i. The toxicity database for fluazaindolizine is complete.
ii. There is no indication that fluazaindolizine is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors to account for neurotoxicity.
iii. Increased quantitative susceptibility was observed for fluazaindolizine in the rat two-generation reproductive study. However, as noted above, concern for prenatal susceptibility is low for both parent and metabolite because clear NOAELs and LOAELs were identified for fetal toxicity and endpoints selected for risk assessment are protective of these findings.
iv. There are no residual uncertainties with regard to the exposure assessment
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).
The Codex has not established any MRLs for fluazaindolizine.
One comment was received on the April 15, 2020, notice of filing that stated in part “this application should be denied. stop using this chemical.” Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that the fluazaindolizine tolerances are safe. The commenter has provided no information indicating that a safety determination cannot be supported.
All tolerance values being established in this rulemaking vary slightly from what the petitioner requested. This is primarily because the petitioner proposed various metabolites as residues of concern for crop and livestock commodities, whereas EPA has concluded that the only residue needed to measure compliance with the tolerance is fluazaindolizine. All raw agricultural commodity (RAC) crop tolerances were calculated according to the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedure. Tolerances in/on processed commodities were calculated by multiplying average processing factors by the mean or highest average field trial (HAFT) value for blended and non-blended commodities, respectively. Commodity definitions are used in accordance with EPA's correct commodity definition guideline.
EPA is not establishing the requested primary crop tolerances for dried potato, potato process waste, tomato paste, and tomato puree, or the requested rotational crop tolerances for aspirated grain fractions (AGF), corn milled byproducts, soybean hulls, soybean meal, dehydrated strawberries, and wheat milled byproducts. Residues of parent fluazaindolizine in these processed commodities are not expected to concentrate to levels above the associated tolerances for the raw agricultural commodities, so processed commodity tolerances are not necessary. The Agency is not establishing the requested primary crop tolerance on tomato wet pomace, as this processed fraction is not considered a significant feed item and a tolerance is not necessary.
The Agency is not establishing the requested rotational crop tolerance for fruiting vegetable crop group 8-10, as residues of parent fluazaindolizine are
The Agency is not establishing the requested rotational crop tolerances for the straw of commodities in crop groups 7 and 20, as these are not identified as significant feed items and tolerances are not needed. Similarly, EPA is not establishing the requested rotational crop tolerance for the fodder of crop group 18, as this is not a recognized commodity for the crop group.
Finally, EPA is establishing rotational crop tolerances for crop groups 6-22, 7-22, 15-22 and 16-22 rather than the requested rotational crop tolerances on crop groups 6, 7, 15 and 16. EPA proposed changes to these four crop groups on January 10, 2022 (87 FR 1091) (FRL-5031-12-OCSPP) and finalized the revised crop groups as 6-22, 7-22, 15-22 and 16-22 on September 21, 2022 (87 FR 57627) (FRL-5031-13-OCSPP). EPA regulations state “Once a revised crop group is established, EPA will no longer establish tolerances under the pre-existing crop group.” 40 CFR 180.40(j)(4). EPA has determined that the residue data support rotational crop tolerances for crop groups 6-22, 7-22, 15-22 and 16-22 based on EPA's practice for evaluating residue data for rotational crop tolerances and because there were no changes to major crops in groups 6-22, 7-22, 15-22 and 16-22. No food commodities are included in the revised crop groups that were not already accounted for in the initial dietary exposure assessment. Therefore, an updated dietary assessment is not needed, and the exposure and risk assessments do not change as a result of the crop group updates.
Therefore, tolerances are established for residues of fluazaindolizine, including its metabolites and degradates in or on carrot at 0.05 ppm; cattle, fat at 0.01 ppm; cattle, meat at 0.01 ppm; cattle, meat byproducts at 0.01 ppm; egg at 0.01 ppm; goat, fat at 0.01 ppm; goat, meat at 0.01 ppm; goat, meat byproducts at 0.01 ppm; hog, fat at 0.01 ppm; hog, meat at 0.01 ppm; hog, meat byproducts at 0.01 ppm; horse, fat at 0.01 ppm; horse, meat at 0.01 ppm; horse, meat byproducts at 0.01 ppm; milk at 0.01 ppm; poultry, fat at 0.01 ppm; poultry meat at 0.01 ppm; poultry, meat byproducts at 0.01 ppm; sheep, fat at 0.01 ppm; sheep, meat at 0.01 ppm; sheep, meat byproducts at 0.01 ppm; tomato, dried at 0.4 ppm; vegetable, cucurbit, group 9 at 0.15 ppm; vegetable, fruiting, group 8-10 at 0.07 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.2 ppm.
Additionally, tolerances are established for inadvertent residues of fluazaindolizine, including its metabolites and degradates in or on animal feed, nongrass, group 18, forage at 0.01 ppm; animal feed, nongrass, group 18, hay at 0.015 ppm; animal feed, nongrass, group 18, straw at 0.15 ppm; berry, low growing, subgroup 13-07G at 0.01 ppm; grain, cereal, forage, hay, stover, and straw group 16-22, forage at 0.01 ppm; grain, cereal, forage, hay, stover, and straw group 16-22, hay at 0.015 ppm; grain, cereal, forage, hay, stover, and straw group 16-22, stover at 0.15 ppm; grain, cereal, forage, hay, stover, and straw group 16-22, straw at 0.15 ppm; grain, cereal, group 15-22 at 0.01 ppm; grass, forage, fodder and hay, group 17, forage at 0.01 ppm; grass, forage, fodder, and hay, group 17, hay at 0.015 ppm; grass, forage, fodder and hay, group 17, straw at 0.15 ppm; oilseed group 20 at 0.8 ppm; rapeseed, forage at 0.09 ppm; stalk, stem, and leaf petiole vegetable group 22 at 0.03 ppm; vegetable,
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(b)-(c) [Reserved]
(d)
Federal Communications Commission.
Technical amendment.
In this document, the Federal Communications Commission (Commission) conforms a section of its rules to the requirements of the Communications Act, correcting errors that were inadvertently introduced in the prior Report and Order, which revised Commission rules to use the Nielsen Company's Local TV Station Information Report as the successor publication to the annual Station Index Directory and United States Television Household Estimates in determining a television station's designated market area for satellite and cable carriage under the Commission's regulations. This action makes no substantive changes to this regulation.
This rule is effective October 12, 2023.
Contact Kenneth Lewis,
This is a summary of the Media Bureau's Order, in MB Docket No. 22-239; DA 23-740, adopted and released on August 21, 2023. The full text of this document is available for download at
On November 17, 2022, the Commission adopted the
Section 47 U.S.C. 325(b)(3)(B) requires that television stations, within one year after October 5, 1992, and every three years thereafter, make an election between the right to grant retransmission consent under this subsection and the right to signal carriage under section 534 of this title.”
We find that notice and comment procedures are unnecessary under the “good cause” exception of the Administrative Procedure Act (APA) because correcting the references in § 76.66(e)(3) entails no exercise of our administrative discretion.
This document does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA).
Because this is a technical correction, there is no impact under the Congressional Review Act, 5 U.S.C. 804(2). Thus, the Bureau will not send
Because these rule changes are being adopted without notice and comment, the Regulatory Flexibility Act
Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 by making the following technical amendment:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
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(3) A satellite carrier shall use the October 2021 Nielsen Local TV Station Information for the retransmission consent-mandatory carriage election cycle commencing on January 1, 2024, and ending on December 31, 2026. The October 2024 Nielsen Local TV Station Information Report shall be used for the retransmission consent-mandatory carriage election cycle commencing January 1, 2027, and ending December 31, 2029, and so forth using the publications for the October two years prior to each triennial election pursuant to this section. Provided, however, that a county deleted from a market by Nielsen need not be subtracted from a market in which a satellite carrier provides local-into-local service, if that county is assigned to that market in the 1999-2000 Nielsen Station Index Directory or any subsequent issue of that publication, or the Local TV Station Information Report commencing with October 2021, and every three years thereafter (
Office of Acquisition Policy, General Services Administration.
Final rule.
The General Services Administration (GSA) is issuing this final rule amending the GSAR to clarify and streamline the clauses contracting officers should reference in acquisitions for commercial products and services.
For clarification of content, contact Mr. Nicholas Giles or Ms. Johnnie McDowell, Procurement Analysts at 202-718-6112 or
GSA published a proposed rule in the
This rule updates several clauses and other related parts by eliminating out of date references and any requirements that are not necessary by law. Specifically, GSA streamlined and reorganized the references in GSAR Clauses 552.212-71 and 552.212-72, and other related GSAR sections to reduce duplicative content and to ensure consistency within GSA's guidance as it relates to the acquisition of commercial products and commercial services.
In addition, GSA identified several duplicative and outdated clauses incorporated by reference at GSAR 552.212-71
GSA provided the public a 60-day comment period (December 20, 2022, to February 21, 2023). GSA did not receive any comments from the public.
GSA did not make any significant changes, or changes of any kind, since publication of the proposed rule.
This final rule will assist GSA's contracting officers in ensuring appropriate safeguards are followed when procuring commercial products and services. Contracting officers will be able to clearly identify which clauses to consider inserting in solicitations and contracts when procuring commercial products and services. In addition, the removal of duplicative and outdated clauses will reduce the amount of time contracting officers need in preparing solicitation packages and monitoring contracts.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has determined that this
The Congressional Review Act, 5 U.S.C. 801
GSA does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601,
The GSA is issuing a final rule amending the GSAR at 552.212-71 and 552.212-72 and related parts to clarify and streamline the contract terms and conditions applicable to GSA acquisitions of commercial products and commercial services.
The objective of the final rule is to ensure contracting officers consider the appropriate clauses when procuring GSA acquisitions for commercial products and services.
There were no comments submitted and therefore no significant issues raised by the public in response to the initial regulatory flexibility analysis. However, GSA made three minor changes to GSAR clauses 552.212-71, 552.212-72 and 552.238-117. The clauses all required the date of the clauses to be changed to reflect the modifications made in this GSAR case.
The final rule applies to large and small business entities, which are responding to solicitations or are awarded contracts for commercial products or services. This final rule will not have a significant economic impact on a substantial number of small entities because the changes to the GSAR do not add any new requirements but rather will streamline the procurement process by reorganizing clauses, removing duplicative or outdated clauses, transferring, re-titling and renumbering referenced clauses and make technical and editorial changes to ensure contracting officers incorporate the correct clauses when procuring commercial products and commercial services.
GSA does not expect this final rule to have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601.
The final rule does not impose any new reporting or recordkeeping requirements on any small entities.
The final rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no known alternatives to this rule which would accomplish the stated objectives.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of OMB under 44 U.S.C. 3501,
Government procurement.
Therefore, GSA amends 48 CFR parts 515, 538 and 552 as set forth below:
40 U.S.C. 121(c).
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(22) 552.238-98, Clauses for Overseas Coverage. Use only in FSS solicitations and contracts when overseas acquisition is contemplated. The GSAR clauses and GSAR provisions in paragraphs (d)(22)(i) through (xi) of this section shall also be inserted in full text, when applicable.
(37) 552.238-117, Price Adjustment—Failure to Provide Accurate Information. Use only in FSS solicitations and contracts under the MAS program. This clause is used when the contract contains the basic clause 552.238-80 Industrial Funding Fee and Sales Reporting.
As prescribed in
(a) The Contractor agrees to comply with any clause that is incorporated herein by reference to implement
(b) Clauses.
As prescribed in
The Contractor agrees to comply with any provision or clause that is incorporated herein by reference to implement provisions of law or Executive Orders applicable to acquisition of commercial items or components. The provision or clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The contracting officer should either check the provisions and clauses that apply or delete the provisions and clauses that do not apply from the lists in paragraphs (a) and (b). The contracting officer may add the date of the provision or clause if desired for clarity. The GSAR provisions in paragraph (a) and GSAR clauses in paragraph (b) are incorporated by reference.
(a)
(b)
As prescribed in 538.273(d)(37), insert the following clause:
(a) The Government, at its election, may reduce the price of this contract or contract modification if the Contracting Officer determines after award of this contract or contract modification that the price negotiated was increased by a significant amount because the Contractor failed to:
(1) Provide information required by this solicitation/contract or otherwise requested by the Government; or
(2) Submit information that was current, accurate, and complete; or
(3) Disclose changes in the Contractor's commercial pricelist(s), discounts or discounting policies which occurred after the original submission and prior to the completion of negotiations.
(b) The Government will consider information submitted to be current, accurate and complete if the data is current, accurate and complete as of 14 calendar days prior to the date it is submitted.
(c) If any reduction in the contract price under this clause reduces the price for items for which payment was made prior to the date of the modification reflecting the price reduction, the Contractor shall be liable to and shall pay the United States—
(1) The amount of the overpayment; and
(2) Simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the Contractor to the date the Government is repaid by the Contractor at the applicable underpayment rate effective each quarter prescribed by the Secretary of Treasury under 26 U.S.C.6621(a)(2).
(d) Failure to agree on the amount of the decrease shall be resolved as a dispute.
(e) In addition to the remedy in paragraph (a) of this clause, the Government may terminate this contract for default. The rights and remedies of the Government specified herein are not exclusive, and are in addition to any other rights and remedies provided by law or under this contract.
Rural Housing Service, U.S. Department of Agriculture (USDA).
Proposed rule.
The Rural Housing Service (RHS or Agency), a Rural Development (RD) agency of the United States Department of Agriculture (USDA), proposes to amend the current regulation for the Off-Farm Labor Housing (Off-FLH) program by clarifying the grant agreement term and adopting the period of performance as required by Federal award information requirements. The changes in this proposed rule are expected to clarify for applicants and grantees their obligations and requirements as Federal award recipients.
Comments on the proposed rule must be received on or before November 13, 2023.
Comments may be submitted electronically by the Federal eRulemaking Portal: Go to
All comments will be available online for public inspection at the Federal eRulemaking Portal (
Christa Lindsey, Finance and Loan Analyst, United States Department of Agriculture Rural Housing Service, Multifamily Housing Production and Preservation Division; telephone number: (352) 538-5747; email address:
The RHS, an agency of the USDA, offers a variety of programs to build or improve housing and essential community facilities in rural areas. RHS offers loans, grants, and loan guarantees for single- and multi-family housing, childcare centers, fire and police stations, hospitals, libraries, nursing homes, schools, first responder vehicles and equipment, and housing for farm laborers. RHS also provides technical assistance loans and grants in partnership with non-profit organizations, Indian tribes, state and Federal government agencies, and local communities.
Title V of the Housing Act of 1949 (Act) authorized the USDA to make housing loans to farmers to enable them to provide habitable dwellings for themselves or their tenants, lessees, sharecroppers, and laborers. The USDA then expanded opportunities in rural areas, making housing loans and grants to rural residents through the Single-Family Housing (SFH) and Multi-Family Housing (MFH) Programs.
The RHS also operates the MFH Farm Labor Housing direct loan and grant programs under Sections 514 and 516 which provide low interest loans and grants to provide housing for year-round and migrant or seasonal domestic farm laborers. These eligible farm laborers may work either at the borrower's farm (“on-farm”) or at any other farm (“off-farm”). Housing under these programs may be built in any area with a need and demand for housing for farm laborers.
Section 534(a) of the Housing Act requires notice and comment for rulemaking for all Rural Housing Service rules and regulations pursuant to Title V. The intention of this proposed rule is to update 7 CFR 3560.566 by clarifying the grant agreement term and adopting the period of performance as required by the Federal award information requirements outlined in 2 CFR 200.211. Pursuant to 2 CFR 200.1, the “
The regulations set forth at 7 CFR 3560 establish the requirements for making loans and grants for Off-FLH and for ongoing operations of this housing.
Currently, the regulations set forth at 7 CFR 3560.566(c) determine the term of the grant agreement. As required by 2 CFR 200.211, the Agency must include the period of performance of the Federal award that has been given in the grant agreement. Therefore, the changes in this proposed rulemaking will further clarify the term of the grant agreement in 7 CFR 3560.566(c) and include a 5-year fixed period of performance in 7 CFR 3560.566(d).
The proposed changes would amend 7 CFR part 3560.566 to clarify the term of the grant agreement and adopt the period of performance as required by
The Agency proposes the following changes to the loan and grant rates and terms in § 3560.566 as follows:
(1) Amend § 3560.566(c) to read as follows: (c) Term of grant agreement. The grant agreement will remain in effect for as long as there is a need for the housing, as determined by the Agency.
(2) Add paragraph (d) to section 3560.566 to read as follows: (d) Grant Period of Performance. The grant period of performance
The Off-FLH Loan and Grant program is authorized by Title V of the Housing Act of 1949 (Pub. L. 81-171), as amended; 42 U.S.C. 1484; 42 U.S.C. 1486(h); and 42 U.S.C. 1480; and implemented under 7 CFR part 3560, subpart L.
This program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. RHS conducts intergovernmental consultations for each loan in accordance with 2 CFR part 415, subpart C.
This proposed rule has been determined to be non-significant and, therefore, was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12988. In accordance with this rule: (1) Unless otherwise specifically provided, all State and local laws that conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before suing in court that challenges action taken under this rule.
The policies contained in this proposed rule do not have any substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government. This proposed rule does not impose substantial direct compliance costs on State and local Governments; therefore, consultation with States is not required.
This executive order imposes requirements on RHS in the development of regulatory policies that have tribal implications or preempt tribal laws. RHS has determined that the proposed rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with RHS on this rule, they are encouraged to contact USDA's Office of Tribal Relations or RD's Tribal Coordinator at:
This document has been reviewed in accordance with 7 CFR part 1970, subpart A, “Environmental Policies.” RHS determined that this action does not constitute a major Federal action significantly affecting the quality of the environment. In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement (EIS) is not required.
This proposed rule has been reviewed regarding the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.
Title II of the 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 on the private sector. Under section 202 of the UMRA, Federal Agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and Final Rules with “Federal mandates” that may result in expenditures to State, local, or tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal Agency 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 rule.
This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal Governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The information collection requirements contained in this regulation have been approved by OMB and have been assigned OMB control number 0575-0189. This proposed rule contains no new reporting and recordkeeping requirements that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
RHS is committed to complying with the E-Government Act by promoting the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information, services, and other purposes.
Rural Development has reviewed this rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After review and analysis of the rule and available data, it has been determined that implementation of the rule will not adversely or disproportionately impact very low, low- and moderate-income populations, minority populations, women, Indian tribes, or persons with disability by virtue of their race, color, national origin, sex, age, disability, or marital or familial status. No major civil rights
The programs affected by this regulation is listed in the Assistance Listing Catalog (formerly Catalog of Federal Domestic Assistance) under number 10.405—Farm Labor Housing Loans and Grants.
In accordance with Federal civil rights laws and USDA civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at
The completed AD-3027 form or letter must be submitted to USDA by:
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Accounting, Administrative practice and procedure, Aged, Conflict of interest, Government property management, Grant programs—housing and community development, Insurance, Loan programs—agriculture, Loan programs—housing and community development, Low and moderate-income housing, Migrant labor, Mortgages, Nonprofit organizations, Public- housing, Rent-subsidies, Reporting and recordkeeping requirements, Rural areas.
For the reasons set forth in the preamble, the Rural Housing Service proposes to amend 7 CFR part 3560 as follows:
42 U.S.C. 1480.
(c)
(d)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace at Roseau, MN. The FAA is proposing this action as the result of an airspace review due to the decommissioning of the Roseau very high frequency omnidirectional range (VOR) as part of the VOR Minimum Operating Network (MON) Program. The name and geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautical database.
Comments must be received on or before October 27, 2023.
Send comments identified by FAA Docket No. FAA-2023-1786 and Airspace Docket No. 23-AGL-22 using any of the following methods:
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FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Roseau Municipal Airport/Rudy Billberg Field, Roseau, MN, to support instrument flight rule (IFR) operations at this airport.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or dely. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Class E airspace is published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates would be published subsequently in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA is proposing to amend 14 CFR part 71 by modifying the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile (decreased from a 7-mile) radius of Roseau Municipal Airport/Rudy Billberg Field, Roseau, MN; and updating the name (previously Roseau Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database.
This action is the result of an airspace review due to the decommissioning of the Roseau VOR, which provided navigation information to this airport, as part of the VOR MON Program, and to support IFR operations at this airport.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Roseau Municipal Airport/Rudy Billberg Field.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace at Mount Pleasant, MI. The FAA is proposing this action as the result of an airspace review due to the decommissioning of the Mount Pleasant very high frequency omnidirectional range (VOR) as part of the VOR Minimum Operating Network (MON) Program. The geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautical database.
Comments must be received on or before October 27, 2023.
Send comments identified by FAA Docket No. FAA-2023-1787 and Airspace Docket No. 23-AGL-23 using any of the following methods:
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Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Mount Pleasant Municipal Airport, Mount Pleasant, MI, to support instrument flight rule (IFR) operations at this airport.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or dely. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Class E airspace is published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA is proposing to amend 14 CFR part 71 by modifying the Class E airspace extending upward from 700 feet above the surface to within a 6.6-mile (decreased from a 7-mile) radius of Mount Pleasant Municipal Airport, Mount Pleasant, MI; and updating the geographic coordinates of airport to coincide with the FAA's aeronautical database.
This action is the result of an airspace review due to the decommissioning of the Mount Pleasant VOR, which provided navigation information to this airport, as part of the VOR MON Program, and to support IFR operations at this airport.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Mount Pleasant Municipal Airport.
Office of Workers' Compensation Programs, Labor.
Notice of proposed rulemaking; request for comments.
The Office of Workers' Compensation Programs (OWCP) administers the Longshore and Harbor Workers' Compensation Act and its extensions. To promote accountability and ensure fairness, OWCP proposes new rules for imposing and reviewing civil money penalties prescribed by the Longshore Act. The proposed rules would also set forth the procedures to contest OWCP's penalty determinations.
The Department invites written comments on the proposed rule from interested parties. Written comments must be received by November 13, 2023.
You may submit written comments, identified by RIN number 1240-AA17, by any of the following methods. To facilitate the receipt and processing of comments, OWCP encourages interested parties to submit their comments electronically.
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Antonio Rios, Director, Division of Federal Employees', Longshore and Harbor Workers' Compensation, Office of Workers' Compensation Programs, (202) 693-0040,
The Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 33 U.S.C. 901-50, establishes a comprehensive Federal workers' compensation system for an employee's disability or death arising in the course of covered maritime employment.
OWCP's sound administration of these programs involves periodic reexamination of the procedures used for claims processing and related issues. On April 28, 2020, OWCP hosted a public outreach webinar to solicit stakeholders' views on how OWCP could improve its processes.
OWCP requests comments on all issues related to this rulemaking, including economic or other regulatory impacts on the regulated community.
The proposed rule would add new sections and amend existing sections to implement the Act's civil money penalty provisions. The Act allows OWCP to impose a penalty when an employer or insurance carrier fails to timely report a work-related injury or death, 33 U.S.C. 930(e), or fails to timely report its final payment of compensation to a claimant, 33 U.S.C. 914(g).
The proposed rule also contains a new subpart I setting out procedures for challenging proposed penalties and penalties under both § 702.204 (for an entity's failure to timely file, or falsification of, the required report of an employee's work-related injury or death) and § 702.236 (for failing to report the termination of payments). These proposed procedures would allow an entity against whom a penalty is assessed the opportunity for a hearing before an administrative law judge, and to petition the Secretary of Labor (Secretary) for further review. After receiving the OWCP Director's final penalty order assessing the penalty, consistent with sections 554 and 556 of the Administrative Procedure Act (5 U.S.C. 551
Under 33 U.S.C. 930(e), “any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report” required by section 930 or “knowingly or willfully makes a false statement or misrepresentation in any such report” is subject to a civil penalty for each violation. Proposed § 702.204 would revise the current regulation in several ways. First, paragraphs (a)(1) and (a)(3) clarify that “knowingly” means actual knowledge or constructive knowledge—that is, that the entity knew or reasonably should have known of the violation. This is similar to the test for knowledge under the Occupational Safety and Health Act (OSH Act), 29 U.S.C. 651
Proposed paragraph (a)(1) further explains that the entity must have knowledge of “the employee's injury or death, that the injury or death is likely covered by the Act, that a report is required, and that a report was not timely filed.” The statute allows the Secretary to assess penalties when the failure, refusal, false statement, or misrepresentation is knowing, so this would clarify that knowledge includes knowledge of the employee's condition as well as of the legal requirement for a report and the fact that the report was not properly submitted. Similarly, paragraph (a)(3) explains that knowledge of a false statement or misrepresentation requires knowledge that the information in the report is untrue, incomplete, or misleading.
Proposed paragraphs (a)(2) and (a)(4) address the willfulness requirement in the statute. Proposed paragraph (a)(2) explains that an entity willfully fails or refuses to send a report when it intentionally disregards the reporting requirement or is plainly indifferent to the reporting requirement. This is similar to the definition of willfulness in other contexts. The OSH Act, 29 U.S.C. 666(a), also provides for penalties for willful violations but does not define willfulness. The Department of Labor's OSHA has provided that a willful violation exists under the OSH Act where an employer has demonstrated either an intentional disregard for the requirements of the OSH Act or a plain indifference to employee safety. OSHA Instruction CPL 02-00-164, Field Operations Manual, issued April 14, 2020, pp. 4-22—4-24. There is ample case law validating the Department's willfulness definition.
Proposed paragraph (b) provides that the number of penalties assessed in the prior two years against an entity will be considered in proposing and assessing further penalties. Proposed paragraph (b) also lists the baseline penalty amounts that will be recommended, beginning at five percent of the maximum penalty amount for a first violation, with the penalty doubling for each subsequent violation through the fifth violation. The sixth violation and subsequent violations will result in the maximum penalty. OWCP has proposed a percentage scheme because the maximum penalty amount will be adjusted every year under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, section 701. Basing the baseline proposed penalty on a percentage of the maximum penalty amount, rather than a dollar amount, will allow OWCP to rely on the table even as the maximum penalty amount changes each year. Furthermore, as the maximum penalty is set by statute and regulation, a graduated penalty scheme beginning at a low percentage will allow OWCP to increase the baseline penalty with each subsequent violation and thereby increase the deterrent effect. As expanded upon later in the explanation for § 702.208, the baseline proposed penalty amount for each violation can be adjusted higher or lower, consistent with the statutory maximum, based on relevant aggravating and mitigating factors.
Under proposed paragraph (a) of § 702.206, when OWCP receives information that indicates an injury or death has occurred on a particular date but has not received a report as required by § 702.201, the District Director will send a notice to the employer. This is consistent with the procedures set forth in chapter 08-0302 of OWCP's Longshore Procedure Manual, which instructs the District Director to send a missing form LS-202 pre-penalty letter. As explained in section 6 of chapter 08-0302, this pre-penalty letter describes the evidence OWCP has received that indicates an injury or death has occurred on a particular date; notifies the employer of its responsibility to file a report within 10 days of that date; and requests an explanation for the employer's failure to file a report within the required time limit. Furthermore, under proposed paragraph (a), the District Director's notice would specifically notify the employer that it may be subject to a penalty if its failure to timely submit a report is knowing and willful and instructs the employer
Proposed paragraph (b) provides that “if the employer does not file the required report within ten days of receipt of the notice described in paragraph (a), the District Director will send a second notice to the employer. As explained above, once the first notice has been sent to the employer, the employer is undeniably on notice of the requirement to timely file an accurate report and any future failures demonstrate a conscious disregard for the requirement. In this second notice, the District Director would notify the employer that its failure to file the required report after receipt of the notice described in paragraph (a) constitutes evidence that its failure to timely submit a report is knowing and willful; request an explanation for the failure to file a report within the required time limit and request the employer's reasons why the full baseline penalty amount under § 702.204 should not be assessed against the employer, including documentation supporting any mitigating factors claimed under § 702.208(c); and instruct the employer that its response should be filed within 30 days of receipt of the notice. This is consistent with the procedures set forth in the manual, although under the proposed rule, the information requested by the District Director is bifurcated into two notices rather than the single pre-penalty letter for a missing form LS-202 described in the manual. While the District Director may have other evidence that demonstrates knowledge and willfulness, this bifurcated notice system would ensure that by the time the District Director notifies the employer that its failure to timely submit a report is knowing and willful, the District Director has clear evidence that the employer was, at a minimum, aware of the legal requirements and yet chose to disregard them by failing to timely submit a report.
Under proposed paragraph (c), when OWCP receives a report filed more than ten days from the date of an employee's injury or death or the date an employer has knowledge of an employee's injury or death, and the District Director has not already sent a notice under paragraph (a), the District Director may notify the employer of its responsibility to file a report within ten days of the date of an employee's injury or death or the date an employer has knowledge of an employee's injury or death. This is consistent with the first part of the pre-penalty letter for a late form LS-202 and the procedure manual, which also instructs the District Director to notify the employer of their obligations when a report is filed late. Unlike with a second notice of a missing form, however, the District Director would not automatically inform the employer that it may be subject to a penalty. In certain situations, however, the District Director may have information indicating evidence of knowledge and willfulness, in which case they will inform the employer that it may be subject to a penalty for failing to timely file the report as required by section 930(a) of the Act. In such circumstances, the notice will also request an explanation for the failure to file a report within the required time limit and the employer's reasons why the full baseline penalty amount under § 702.204 should not be assessed against the employer, including documentation supporting any mitigating factors claimed under § 702.208(c), and instruct the employer that its response should be filed within 30 days of receipt of the notice.
Under proposed paragraph (d), when OWCP receives a report containing a false statement or misrepresentation, the District Director would send a notice to the employer that describes the evidence that indicates the report contains a false statement or misrepresentation; notifies the employer that it may be subject to a penalty if the false statement or misrepresentation was made knowingly or willfully; requests an explanation for the false statement or misrepresentation and the employer's reasons why the full baseline penalty amount under § 702.204 should not be assessed against the employer; and instructs the employer that its response should be filed within 30 days of the date of the letter. Unlike with missing reports, the statute only requires that the false statement or misrepresentation be made knowingly
OWCP requests comments on all aspects of proposed § 702.206, and particularly on the sources and type of information the agency should use to determine whether a failure was knowing or willful.
As described earlier, this proposed rule applies to the LHWCA and its extensions, including the Defense Base Act, which covers contractors working on military bases or U.S. government contracts outside the United States. 42 U.S.C. 1651-54. There may be special considerations when determining whether an employer acts with knowledge and willfulness when it comes to reporting injuries sustained by employees of Federal contractors abroad. For example, there may be a heightened awareness of the legal requirements, either through the procurement process or other avenues. The contracting agencies may have related reporting requirements, and such information may demonstrate the contractor-employer's state of mind. OWCP therefore seeks comment on how to address failures under the Defense Base Act in particular, in light of the additional information available to the Federal Government, that would establish knowledge and willfulness.
Proposed § 702.207 sets forth the process for considering the response and issuing the notice of proposed penalty. Under proposed paragraph (a), the District Director would consider the employer's responses, if any, to the notices described in § 702.206, as well as any other information the District Director has about the injury or the respondent, to determine whether the failure, refusal, false statement, or misrepresentation was knowing or willful as set forth in § 702.204. As with § 702.206(d), the District Director may have information about an injury or illness from many different sources, such as news reports, employee advocates, or employees themselves.
Under proposed paragraph (b), if the District Director determines that there was a violation, they will issue a notice of proposed penalty. Proposed paragraph (b) also provides that the Director has the authority and responsibility for assessing a penalty using the procedures set forth at subpart I. The notice of proposed penalty is described in detail in section 903 and the corresponding section of this preamble.
In proposed § 702.208, proposed paragraph (a) provides that the District Director and Director may consider mitigating and aggravating factors when determining the amount of the proposed and assessed penalties. This must be consistent with the statutory maximum, which is currently $28,304 as adjusted for inflation, so the penalty cannot exceed that amount.
Similarly, proposed paragraph (c) lists the mitigating factors that may be considered in lowering the amount: bringing the failure to comply with the Act or regulations to the District Director's attention; full payment of the correct amount of compensation to the claimant; timely compliance with the District Director's requests once failure to comply with the Act or regulations was brought to their attention; history of compliance with the Act and the regulations of this subchapter; a mass casualty event preventing the timely filing in all related cases; whether the respondent is a “small entity” within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601(6); and any other relevant factors. These are meant to address situations where a penalty would still have a deterrent effect at a lower level and are largely consistent with the mitigating factors listed in chapter 08-0302 of the Longshore Procedure Manual. The sixth factor, whether the respondent is a “small entity,” is listed as a proposed mitigating factor rather than a required consideration. The Regulatory Flexibility Act allows agencies to decline to consider small entity status for willful or criminal violations.
OWCP proposes to substitute the phrase “additional compensation” for the word “penalty” in § 702.233's current title (
Proposed § 702.236 revises the current rule to incorporate the penalty procedural rules proposed in new subpart I. It also clarifies that the Director, not the District Director, has the ultimate authority and responsibility for assessing the penalty. This is consistent with the process set forth in the new proposed subpart I.
The proposed changes to § 702.274 would simply (1) clarify that consequences for refusing to pay would occur only after the penalty becomes final and (2) update the outdated references to officials and offices within the Department of Labor.
Proposed § 702.901 provides that the procedures set forth in subpart I apply when the District Director imposes civil monetary penalties under § 702.204 or 702.236 and that any penalties collected are to be deposited into the special fund described in 33 U.S.C. 944.
Proposed § 702.902 defines “respondent” as the employer, insurance carrier, or self-insured employer against whom the District Director is seeking to assess a penalty. This covers the possible entities against which penalties may be assessed under the scope of this subpart. 33 U.S.C. 914(g) authorizes the Secretary to assess a penalty against an employer, and section 935 substitutes the carrier for the employer regarding any obligations and duties imposed by the Act on the employer. Section 930(a) requires the employer to send the report to the Secretary, and section 930(e) explicitly makes employers, insurance carriers, and self-insured employers subject to possible penalties.
For the purpose of this subpart, OWCP interprets insurance carriers to include self-insured employer groups. Under 20 CFR 701.301(a)(13), a carrier is an insurance carrier or self-insurer meeting the statutory requirements with respect to authorization to provide insurance fulfilling the obligation of an
Proposed § 702.903 is a new provision governing the District Director's notice of proposed penalty, the respondent's response, and the consequences of not responding. Paragraph (a) requires OWCP to serve a written notice on the respondent by a method that verifies the delivery date because date of receipt triggers the respondent's response period. If the respondent does not accept service, the receipt date will be the attempted date of delivery. This is to ensure respondents do not have an incentive to evade service. Proposed paragraph (b) prescribes the contents of the notice: the facts giving rise to the proposed penalty, the statutory and regulatory basis for the proposed penalty, the amount of the proposed penalty and explanation of the amount, instructions for including documentation in the response, and the consequences of failing to timely respond. Proposed paragraph (c) gives the respondent 30 days to respond. The response may include an explanation of why the full proposed penalty amount should not be assessed and documentation relevant to the factual basis for the penalty, including any mitigating factors claimed under proposed § 702.208. Proposed paragraph (d) provides that if the respondent does not respond within 30 days, the District Director will submit the notice of proposed penalty to the Director as a preliminary decision. This ensures the process continues without delay while still providing the respondent with a fair opportunity to provide additional information or reasons that the District Director may not have considered.
Proposed § 702.904 addresses the District Director's preliminary decision after a timely response from the respondent. If the respondent files a timely response to the notice described in § 702.903, the District Director would review the facts and any argument presented in the response, revise the proposed penalty amount, if warranted, and submit the revised notice of proposed penalty to the Director as a preliminary decision. This provision, along with proposed § 702.903, allows the respondent a meaningful opportunity to be heard before the District Director and allows the District Director time to revise the proposed penalty if appropriate.
Proposed § 702.905 addresses the Director's issuance of the penalty order and the process for requesting a hearing before the Office of Administrative Law Judges. Proposed paragraph (a) provides that the Director will consider the District Director's preliminary decision and issue a penalty order in no more than 30 days. OWCP welcomes comment on this time frame.
Under proposed paragraph (a)(1) through (3), the penalty order must contain a statement of the reasons for the assessment, including an evaluation of any mitigating or aggravating factors considered, and the amount of the penalty; a statement of the respondent's right to request a hearing on the Director's penalty order and the method for doing so; and a statement of the consequences of failing to timely request a hearing. By including the reasons for the penalty and information about how to contest it, OWCP intends to provide the respondent with fair notice and a full opportunity to contest the penalty order.
Proposed paragraph (b) provides that the respondent has 15 days from receipt of the Director's penalty order to request a hearing before an Administrative Law Judge by filing a request for hearing with the District Director.
Proposed paragraph (c) would stay the collection of the penalty until final resolution, either by the ALJ or the Secretary. This provision would ensure the respondent does not have to pay a penalty until it is fully adjudicated. Proposed paragraph (d) provides that if the respondent does not request a hearing within 15 days of receipt of the Director's penalty order, the assessment and amount of the penalty set forth in the Director's penalty order will be deemed a final decision of the Secretary. This is to ensure the decision becomes final and that OWCP can collect the penalty even if the respondent takes no action.
Proposed § 702.906 addresses referral of an assessment and penalty for a hearing before an administrative law judge and is similar to the civil money penalty provisions for failure to insure under the Black Lung Benefits Act, 20 CFR 726.309 through 311. Paragraph (a) provides that, when the District Director receives a request for hearing, the District Director will notify the Chief Administrative Law Judge, who will assign the case to an administrative law judge. The District Director will also forward the administrative record, which consists of the District Director's notice of proposed penalty and preliminary decision, the documentation upon which the District Director relied in issuing the notice of proposed penalty and preliminary decision, all written responses and documentation filed by the respondent with the District Director, the Director's penalty order, the documentation upon which the Director relied in issuing the penalty order, and the respondent's request for hearing. Limiting the administrative record to documents considered by the District Director and Director will allow the ALJ to determine the appropriateness of the penalty.
Paragraph (b) provides that the rules set forth in 29 CFR part 18 will apply to any hearing before an administrative law judge under subpart I. 29 CFR part 18 contains the existing rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges and covers, among other things, general procedures, filing, service, and hearings.
Proposed § 702.907 governs the contents, issuance, service, and finality of the administrative law judge's decision on the Director's penalty order. Proposed paragraph (a) limits the administrative law judge's determinations to whether the respondent has violated the provision under which the penalty was assessed, and whether the penalty is appropriate under the standards set forth in §§ 702.204, 702.236, and 702.903(c)(2). Limiting the judge's consideration to these issues will help streamline the hearing and decision process. Proposed
Proposed paragraph (c) requires the administrative law judge's decision to include a statement of findings and conclusions, with the reasons and bases for those findings and conclusions; instructions for filing a motion for reconsideration with the Administrative Law Judge; and instructions for filing a petition for review with the Secretary. This would allow the Secretary or a court to review the decision and determine its reasonableness if the respondent seeks further judicial review.
Proposed paragraph (d) would require the administrative law judge to deliver a copy of the decision and order to the District Director for service on the parties. This is consistent with the procedures set forth in 20 CFR 702.349, where the administrative law judge delivers the compensation order to the District Director for service on the parties and on the representatives of the parties, if any. Proposed paragraph (e) provides that any party may move for reconsideration of the decision within 30 days of the date the District Director serves the decision, and that any such motion will suspend the running of time to file a petition for review under § 702.908 until the date the motion for reconsideration is denied or 30 days after a new decision is issued. This would allow time for the ALJ to consider the motion and, if warranted, issue a new decision while still preserving the parties' rights to further appeal the decision. Proposed paragraph (f) provides that, absent a timely request for reconsideration or petition for review, or if any such motions or petitions are denied, the administrative law judge's decision will be deemed a final decision of the Secretary. Proposed paragraph (g) provides that the ALJ will forward the complete hearing record to the District Director at the conclusion of all hearing proceedings. This is consistent with 20 CFR 702.349(a), where the District Director retains custody of the record after ALJ proceedings regarding a compensation order.
Proposed § 702.908 allows any party aggrieved by an administrative law judge's decision to petition the Secretary for review. Proposed paragraph (a) requires that any petition be filed within 30 days of the date on which the District Director serves the decision. Under proposed paragraph (b), if any party files a timely motion for reconsideration with the administrative law judge, the 30-day period will not begin to run until the judge issues a decision on reconsideration and any petition for review filed earlier will be dismissed without prejudice as premature. This is to ensure the ALJ process is complete before moving to the next level in the appeal process. Proposed paragraph (c) sets out the requirements for the petition for review: that it be typewritten or legibly written, state the specific determinations in the ALJ decision with which the petitioner disagrees, be signed and dated, and include attached copies of the ALJ's decision and any other relevant documents in the record. This is to ensure the Secretary or their designee has sufficient information on which to render a decision. And proposed paragraph (d) provides the mailing address for sending the petition, notes that documents are not considered filed until actually received by the Secretary, and requires the petition to be filed in the manner specified in the ALJ's decision and order. This is to allow for future address changes and technological advancements, while avoiding confusion if information in the regulation becomes outdated.
Proposed § 702.909(a) provides that the Secretary's review of a timely petition is discretionary and that the Secretary will send written notice of their determination to all parties. Paragraph (a)(1) provides that, if the Secretary declines review, the administrative law judge's decision will be considered the final agency decision 30 days after the filing of the petition for review. Under paragraph (b)(2), if the Secretary chooses to review the decision, the Secretary will notify the parties of the issues to be reviewed and set a schedule for the parties to submit written arguments in whatever form the Secretary deems appropriate. Proposed paragraph (b) requires the District Director to forward the administrative record to the Secretary if the Secretary decides to review the administrative law judge's decision.
Proposed § 702.910 limits the Secretary's review to the hearing record. The Secretary will review findings of fact under a substantial evidence standard and conclusions of law
Proposed § 702.911 provides that the respondent and the Director or District Director may enter into a settlement at any time during the penalty proceedings. This provision would cover both proposed penalties and assessed penalties and is meant to allow flexibility and forestall further litigation if OWCP and the respondent reach agreement at any point during the proceedings. Upon settlement, the OWCP official with whom the respondent settled would transmit a copy of the settlement agreement to the Deputy Director for Longshore Claims. This is to ensure the Longshore program is aware of every settlement for the purpose of tracking collections and recovery, as well as for possible consideration as an aggravating factor under any future penalty proceedings involving the same respondent. Proposed § 702.911 also provides that penalties agreed upon in settlement agreements may be collected and recovered pursuant to § 702.912. This is to ensure that the Department has a mechanism for collecting agreed-upon payments. OWCP welcomes comment on this proposed paragraph, and specifically whether settlement agreements should be made public when transmitted to the Deputy Director for Longshore Claims.
Paragraph (a) of proposed § 702.912 provides that, when a penalty becomes final under § 702.905(d), 702.907(f), 702.909(a)(1), 702.910, or 702.911, the penalty is immediately due and payable to the Department on behalf of the special fund described in 33 U.S.C. 944. Paragraph (b) provides that, if payment is not received within 30 days after it becomes due and payable, it may be recovered by a civil action brought by the Secretary, who will be represented by the Solicitor of Labor.
Section 39(a) of the LHWCA, 33 U.S.C. 939(a)(1), authorizes the Secretary of Labor to prescribe rules and regulations necessary for the administration of the Act. The statute further allows OWCP to impose a penalty when an employer or insurance carrier fails to timely report a work-related injury or death, 33 U.S.C. 930(e), or fails to timely report its final payment of compensation to a claimant, 33 U.S.C. 914(g). This proposed rule would effectuate these statutory provisions and falls well within these statutory grants of authority.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
This proposed rule would not change any existing collections of information or generate any new collections of information. The forms for the first report of injury and notice of final payment are already approved under OMB Control Numbers 1240-0003 and 1240-0041, respectively. The information that respondents would submit to OWCP under this proposal would be in response to specific notices of proposed penalties and penalty orders. It would therefore fall under the exemption for requests for facts or opinions addressed to a single person.
Under E.O. 12866, OMB's Office of Information and Regulatory Affairs determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB.
Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. It directs agencies to, among other things, propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; that it is tailored to impose the least burden on society, consistent with obtaining the regulatory objectives; and that, in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. Executive Order 13563 recognizes that some costs and benefits are difficult to quantify and provides that, when appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
The Department has considered this proposed rule with these principles in mind and has concluded that, if adopted, the regulated community would benefit from this regulation. Promulgating procedural rules related to civil money penalties would benefit employers (and their insurance carriers) against whom OWCP may assess penalties. Currently, the regulations contain no set procedures for employers to challenge penalties, which can lead to procedural decisions being made on a case-by-case basis. The proposed rules
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
The Regulatory Flexibility Act of 1980, as amended (5 U.S.C. 601
The Department has determined that a regulatory flexibility analysis under the RFA is not required for this rulemaking. While many longshore employers and a handful of insurance carriers may be small entities within the meaning of the RFA,
The Department therefore certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Thus, an initial regulatory flexibility analysis is not required. The Department, however, invites comments from members of the public who believe the proposed rule would have a significant economic impact on a substantial number of small longshore employers or insurers. The Department has provided the Chief Counsel for Advocacy of the Small Business Administration with a copy of this certification.
The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism and has determined that it does not have “federalism implications.” The proposed rule will not “have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government” if promulgated as a final rule.
Administrative practice and procedure, Claims, Longshore and harbor workers, Workers' compensation.
For the reasons set forth in the preamble, the Department of Labor proposes to amend 20 CFR part 702 as follows:
5 U.S.C. 301, and 8171
(a) Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or refuses to send any report required by § 702.201, or who knowingly or willfully makes a false statement or misrepresentation in any report, shall be subject to a civil penalty not to exceed $28,304 for each such failure, refusal, false statement, or misrepresentation for which penalties are assessed after January 15, 2023.
(1) An entity knowingly fails or refuses to send a report required by § 702.201 when it has actual knowledge, or reasonably should have known, of the employee's injury or death, that the injury or death is likely covered by the Act, that a report is required, and that a report was not timely filed.
(2) An entity willfully fails or refuses to send a report required by § 702.201 when it intentionally disregards the reporting requirement or is plainly indifferent to the reporting requirement.
(3) An entity knowingly makes a false statement or misrepresentation in any report required by § 702.201 when it has actual knowledge, or reasonably should have known, that information it provides in the report is untrue, incomplete, or misleading.
(4) An entity willfully makes a false statement or misrepresentation in any report required by § 702.201 when it intentionally disregards or exhibits plain indifference to the truth.
(5) Proof of a false statement or misrepresentation made either knowingly or willfully in a report required by § 702.201 is sufficient to warrant imposition of a penalty under this section.
(b) In determining the penalty amount under paragraph (a) of this section, the number of penalties, if any, that have been assessed against the employer, insurance carrier, self-insured employer, or self-insured employer group in the two years preceding the most recent reporting violation will be considered. The baseline penalty will be in accordance with the following table and rounded up to the next dollar.
(a) When OWCP receives information that indicates an injury or death has occurred on a particular date but has not received a first report of injury or death as required by § 702.201, the District Director will send a notice to the employer that:
(1) Describes the evidence that indicates a covered injury or death occurred on a particular date;
(2) Notifies the employer of its responsibility to file a report within 10 days of that date;
(3) Requests an explanation for the failure to file a report within the required time limit;
(4) Notifies the employer that it may be subject to a penalty if its failure to timely submit a report is knowing and willful; and
(5) Instructs the employer that it must file the required report no later than ten days after receipt of the notice.
(b) If the employer does not file the required report within ten days of receipt of the notice described in paragraph (a) of this section, the District Director will send a second notice to the employer that:
(1) Notifies the employer that its failure to file the required report after receipt of the notice described in paragraph (a) of this section constitutes evidence that its failure to timely submit a report is knowing and willful;
(2) Requests an explanation for the failure to file a report within the required time limit and reasons why the full penalty amount should not be assessed against the employer, including documentation supporting any mitigating factors claimed under § 702.208(c); and
(3) Instructs the employer that its response should be filed within 30 days of receipt of the notice.
(c) When OWCP receives a report filed more than ten days from the date of an employee's injury or death or the date an employer has knowledge of an employee's injury or death, and the District Director has not already sent a notice under paragraph (a) of this section, the District Director may notify the employer of its responsibility to file a report within ten days of that date. If the District Director preliminarily determines the failure to timely file was knowing and willful, this notice will also request an explanation for the failure to file a report within the required time limit and request the employer's reasons why the full penalty amount should not be assessed against the employer, including documentation supporting any mitigating factors claimed under § 702.208(c), and instruct the employer that its response should be filed within 30 days of receipt of the notice.
(d) When OWCP receives a report required by § 702.201 containing a false statement or misrepresentation, the District Director will send a notice to the employer that
(1) Describes the evidence that indicates the report contains a false statement or misrepresentation;
(2) Notifies the employer that it may be subject to a penalty if the false statement or misrepresentation was made knowingly or willfully;
(3) Requests an explanation for the false statement or misrepresentation and reasons why the full penalty amount should not be assessed against the employer; and
(4) Instructs the employer that its response should be filed within 30 days of the date of the letter.
(a) The District Director will consider the employer's responses, if any, to the notices described in § 702.206, as well as any other information the District Director has about the injury or the respondent, to determine whether the failure, refusal, false statement, or misrepresentation was knowing or willful as set forth in § 702.204.
(b) If the District Director determines that the failure to file a timely report was knowing and willful, or the false statement or misrepresentation in such a report was knowing or willful, the District Director will issue a notice of proposed penalty. The Director has the authority and responsibility for assessing a penalty using the procedures set forth at subpart I of this part.
(a) In proposing and setting penalty amounts, the District Director and Director may, consistent with the maximum penalty set forth in § 702.204, consider aggravating and mitigating factors.
(b) The Director may consider the following aggravating factors in determining whether to increase the proposed penalty amount:
(1) Extent of delay in filing the report;
(2) Attempts to conceal the injury or death;
(3) Failure to timely pay compensation due the claimant;
(4) Failure to submit information sufficient to determine whether the correct compensation has been paid;
(5) Any prior settlements of penalties assessed by the Director;
(6) Any outstanding proposed penalties assessed against the entity;
(7) Any prior penalties assessed against an entity's parent company or subsidiary; and
(8) Any other factors relevant to the respondent's conduct with respect to the contents of the report.
(c) The Director may consider the following mitigating factors in determining whether to reduce the proposed penalty amount:
(1) Bringing the failure to comply with the Act or regulations to the District Director's attention;
(2) Full payment of the correct amount of compensation to the claimant;
(3) Timely compliance with the District Director's requests once failure to comply with the Act or regulations was brought to their attention;
(4) History of compliance with the Act and the regulations of this subchapter;
(5) A mass casualty event preventing the timely filing in all related cases;
(6) Whether the respondent is a “small entity” within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601(6); and
(7) Any other relevant factors.
Any employer failing to notify the District Director that the final payment of compensation has been made as required by § 702.235 shall be assessed a civil penalty in the amount of $345 for any violation for which penalties are assessed after January 15, 2023. The Director has the authority and responsibility for assessing this penalty using the procedures set forth at subpart I of this part.
In the event the employer refuses to pay the penalty assessed after it becomes final as set forth in subpart I of this part, the District Director shall refer the complete administrative file to the Deputy Director for Longshore Claims, Division of Federal Employees', Longshore and Harbor Workers' Compensation, for subsequent transmittal to the Associate Solicitor for Black Lung and Longshore Legal Services, with the request that appropriate legal action be taken to recover the penalty.
These procedures apply to the proposal, assessment, and adjudication of the civil money penalties prescribed by § 702.204 or § 702.236.
In addition to the definitions provided in §§ 701.301 and 701.302, the following definition applies to this subpart:
(a) The District Director will serve a written notice of proposed penalty through an electronic method authorized by OWCP or by trackable delivery method on each respondent against whom they are considering assessing a penalty. Where service is not accepted by a respondent, the notice will be deemed received by the respondent on the attempted date of delivery.
(b) The notice must set forth the—
(1) Facts giving rise to the proposed penalty;
(2) Statutory and regulatory basis for the proposed penalty;
(3) Amount of the proposed penalty, including an explanation for the amount proposed;
(4) Instructions for including documentation in the response, as set forth in paragraph (d) of this section; and
(5) Consequences of failing to timely respond to the notice as set forth in paragraph (e) of this section.
(c) The respondent must respond within 30 days of receipt of the notice. The response may include—
(1) Any explanation for why the full proposed penalty amount should not be assessed; and
(2) Documentation relevant to the factual basis for the penalty, including any mitigating factors under § 702.208.
(d) If the respondent does not respond within 30 days of receipt of the notice, the District Director will submit the notice of proposed penalty to the Director as a preliminary decision.
If the respondent files a timely response to the notice described in § 702.903, the District Director will review the facts and any argument presented in the response, revise the proposed penalty amount, if warranted, and submit the revised notice of proposed penalty to the Director as a preliminary decision.
(a) The Director will consider the District Director's preliminary decision and issue a Director's penalty order no more than 30 days after receipt of the District Director's preliminary decision. The Director's penalty order must—
(1) Include a statement of the reasons for the assessment, including an evaluation of any mitigating or aggravating factors considered, and the amount of the penalty;
(2) Set forth the respondent's right to request a hearing on the Director's penalty order and the method for doing so; and
(3) Set forth the consequences of failing to timely request a hearing as set forth in paragraph (d) of this section.
(b) The respondent has 15 days from receipt of the Director's penalty order to request a hearing before an Administrative Law Judge by filing a request for hearing with the District Director. The request must—
(1) Be typewritten or legibly written;
(2) State the specific determinations in the Director's penalty order with which the respondent disagrees;
(3) Be signed and dated by the respondent making the request or by the respondent's authorized representative;
(4) State both the physical mailing address and electronic mailing address for the respondent and the authorized representative for receipt of further communications.
(c) A timely hearing request will operate to stay collection of the penalty until final resolution of the penalty is reached by the Administrative Law Judge or the Secretary, as appropriate.
(d) If the respondent does not request a hearing within 15 days of receipt of the Director's penalty order, the assessment and amount of the penalty set forth in the Director's penalty order will be deemed a final decision of the Secretary.
(a) When the District Director receives a request for hearing in response to a Director's penalty order issued under § 702.905, the District Director will notify the Chief Administrative Law Judge, who will assign an Administrative Law Judge to the case. The District Director will also forward to the Office of Administrative Law Judges the following documentation, which will be considered the administrative record:
(1) The District Director's notice of proposed penalty and preliminary decision issued under §§ 702.903 and 702.904;
(2) The documentation upon which the District Director relied in issuing the notice of proposed penalty and preliminary decision;
(3) All written responses and documentation filed by the respondent with the District Director;
(4) The Director's penalty order;
(5) The documentation upon which the Director relied in issuing the penalty order; and
(6) The respondent's request for hearing.
(b) Except as otherwise provided in this subpart, the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges at 29 CFR part 18 will apply to hearings under this subpart.
(a) In reviewing the Director's penalty order, the Administrative Law Judge must limit their determinations to:
(1) Whether the respondent has violated the sections of the Act and regulations under which the penalty was assessed;
(2) The appropriateness of the penalty assessed as set forth in §§ 702.204, 702.236, 702.271, and 702.903(c)(2).
(b) Documentation not presented to the District Director may not be admitted in any further proceedings before an Administrative Law Judge unless the Administrative Law Judge finds that the failure to submit the documentation to the District Director should be excused due to extraordinary circumstances.
(c) The decision of the Administrative Law Judge must include a statement of findings and conclusions, with reasons and bases therefor, instructions for filing a motion for reconsideration with the Administrative Law Judge, and instructions for filing a petition for review with the Secretary.
(d) On the date of issuance, the Administrative Law Judge must deliver a copy of the decision and order on the District Director for service on the parties.
(e) Any party may ask the Administrative Law Judge to reconsider their decision by filing a motion within 30 days of the date the District Director serves the decision. A timely motion for reconsideration will suspend the running of the time for any party to file a petition for review under § 702.908 until the date the motion for reconsideration is denied or 30 days after a new decision is issued.
(f) If no party files a motion for reconsideration or petition for review within 30 days of the date the District Director serves the Administrative Law Judge's decision, or if any such motions or petitions are denied, the decision will be deemed a final decision of the Secretary.
(g) At the conclusion of all hearing proceedings, the Administrative Law Judge will forward the complete hearing record to the District Director who referred the matter for hearing, who will retain custody of the record.
(a) Any party aggrieved by the decision of the Administrative Law Judge may petition the Secretary for review of the decision by filing a petition within 30 days of the date on which the District Director serves the decision. Copies of the petition must be served on all parties and on the Chief Administrative Law Judge.
(b) If any party files a timely motion for reconsideration under § 702.907(e), any petition for review filed before service of a decision on reconsideration, whether filed prior to or subsequent to the filing of a timely motion for reconsideration, will be dismissed without prejudice as premature. The 30-day time limit for filing a petition for review by any party will begin upon service of a decision on reconsideration.
(c) The petition for review must—
(1) Be typewritten or legibly written;
(2) State the specific determinations in the Administrative Law Judge's decision with which the party disagrees;
(3) Be signed and dated by the party or the party's authorized representative; and
(4) Include attached copies of the Administrative Law Judge's decision and any other documents admitted into the record by the Administrative Law Judge that would assist the Secretary in determining whether review is warranted.
(d) All documents submitted to the Secretary, including a petition for review, must be filed with the Secretary of Labor, U.S. Department of Labor, 200 Constitution Ave. NW, Washington, DC 20210, in the manner specified in the Administrative Law Judge's decision and order. Documents are not considered filed with the Secretary until actually received.
(a) Following receipt of a timely petition for review, the Secretary will determine whether the Administrative Law Judge's decision warrants review. This determination is solely within the Secretary's discretion. The Secretary will send written notice of their determination to all parties.
(1) If the Secretary does not notify the parties within 30 days of the petition for review's filing that they will review the decision, the Administrative Law Judge's decision will be considered the final decision of the agency at the expiration of that 30 days.
(2) If the Secretary decides to review the decision, the Secretary will notify the parties within 30 days of the petition for review's filing of the issue or issues to be reviewed and set a schedule for the parties to submit written argument in whatever form the Secretary deems appropriate.
(b) If the Secretary decides to review the decision, the District Director must forward the administrative record compiled before the Administrative Law Judge to the Secretary.
The Secretary's review is limited to the hearing record. The findings of fact in the decision under review shall be conclusive if supported by substantial evidence in the record as a whole. The Secretary's review of conclusions of law will be
At any time during proceedings under this subpart, the Director or District Director and the respondent may enter into a settlement of any proposed or assessed penalties. Upon settlement, the District Director or Director will transmit a copy of the settlement agreement to the Deputy Director for Longshore Claims. Any settlement agreement under this subpart may be considered as an aggravating factor under any future proceedings under this subpart. Penalties agreed upon in settlement agreements may be collected and recovered pursuant to § 702.912.
(a) When the determination of the amount of the penalty becomes final (
(b) If such remittance is not received within 30 days after it becomes due and payable, it may be recovered in a civil action brought by the Secretary in any court of competent jurisdiction, in which litigation the Secretary will be represented by the Solicitor of Labor.
Coast Guard, DHS.
Supplemental notice of proposed rulemaking; extension of comment period.
The Coast Guard is extending the comment period for the supplemental notice of proposed rulemaking, “Marine Casualty Reporting on the Outer Continental Shelf,” published June 14, 2023, that seeks comments on proposed changes to reporting criteria for certain casualties on the outer continental shelf (OCS) and a proposed increase to property damage dollar threshold that triggers a casualty report for fixed facilities on the OCS. We are extending the comment period an additional 60 days to allow the public more time to comment. The
The comment period for the supplemental notice of proposed rulemaking published June 14, 2023, (88 FR 38765) is extended. Comments and related material must be received by the Coast Guard on or before November 13, 2023.
You may submit comments identified by docket number USCG-2013-1057 using the Federal eRulemaking Portal at
For information about this document call or email LCDR Laura Fitzpatrick, Office of Investigations and Casualty Analysis (CG-INV), Coast Guard; telephone 202-372-1032, email
The Coast Guard views public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments we post to
The Coast Guard issued a supplemental notice of proposed rulemaking (SNPRM) entitled “Marine Casualty Reporting on the Outer Continental Shelf,” on June 14, 2023 (88 FR 38765). In it we propose changing the reporting criteria for changing the reporting criteria for certain casualties that occur on foreign floating outer continental shelf (OCS) facilities (FOFs), mobile offshore drilling units (MODUs), and vessels engaged in OCS activities. In addition, the SNPRM proposes to raise the property damage dollar threshold that triggers a casualty report from $25,000 to $75,000 for fixed facilities on the OCS because the original regulation setting the property damage threshold amount was issued in the 1980s and has not since been updated. This SNPRM would update Coast Guard regulations to keep up with technology, improve awareness of accident trends on the OCS, improve safety on the OCS, and reduce the regulatory burden on operators of fixed OCS platforms.
We set a 90-day comment period for the SNRPM and received several requests to extend the comment period. The requesters cited need for additional time to provide constructive responses to the SNRPM and a lack of awareness about the SNPRM among members of the affected industry as reasons for the requested extension.
In response to this request, we decided to extend the public comment period by 60 days. The comment period is now open through November 13, 2023.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to implement several tolerance actions under the Federal Food, Drug, and Cosmetic Act (FFDCA) that the Agency determined were necessary or appropriate during the registration review conducted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). During registration review, EPA reviews all aspects of a pesticide case, including existing tolerances, to ensure that the pesticide continues to meet the standard for registration under FIFRA. The tolerance actions and pesticide active ingredients addressed in this rulemaking are identified in Unit I.B. and discussed in detail in Unit III. of this document.
Comments must be received on or before November 13, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2023-0254, through the Federal eRulemaking Portal at:
Robert Little, Pesticide Re-Evaluation Division (7508M), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-2234; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
EPA is proposing several tolerance actions that the Agency previously determined were necessary or
• Revising tolerance expressions;
• Modifying commodity definitions;
• Updating crop groups;
• Removing expired tolerances;
• Revoking tolerances that are no longer needed; and
• Harmonizing tolerances with Codex Maximum Residue Levels (MRLs).
Although they may not have been identified in the registration review of a particular pesticide, this rule also includes proposals to reflect the Agency's 2019 adoption of the Organization of Economic Cooperation and Development (OECD) Rounding Class Practice. Where applicable, these adjustments are proposed for specific pesticides as reflected in the proposed regulatory text section.
Pursuant to its authority under the Federal Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a, EPA is proposing the tolerance actions in this rulemaking that the Agency previously determined were necessary or appropriate during the registration review conducted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
FFDCA section 408(b) authorizes EPA to establish a tolerance, if the Agency determines that a tolerance is safe; FFDCA section 408(c) authorizes EPA to establish an exemption from the requirement of a tolerance if the Agency determines that the exemption is safe.
FFDCA section 408(e), 21 U.S.C. 346a(e), authorizes EPA to establish, modify, or revoke tolerances or exemptions from the requirement of a tolerance on its own initiative. Prior to issuing the final regulation, FFDCA section 408(e)(2) requires EPA to issue a notice of proposed rulemaking for a 60-day public comment period, unless the Administrator for good cause finds that it would be in the public interest to have a shorter period and states the reasons in the rulemaking.
Furthermore, when establishing tolerances or exemptions from the requirement of a tolerance, FFDCA sections 408(b)(3) and (c)(3) require that there be a practical method for detecting and measuring pesticide chemical residue levels in or on food, unless in the case of exemptions, EPA determines that such method is not needed and states the reasons therefor in the rulemaking. 21 U.S.C. 346a(b) and (c).
Under FIFRA section 3(g), 7 U.S.C. 136a(g), EPA is required to periodically review all registered pesticides and determine if those pesticides continue to meet the standard for registration under FIFRA.
This proposed rule provides a 60-day public comment period that allows any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives such a comment within the 60-day period, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the
After considering comments that are received in response to this proposed rule, EPA will issue a final rule. At the time of the final rule, you may file an objection or request a hearing on the action taken in the final rule. If you fail to file an objection to the final rule within the time period specified in the final rule, you will have waived the right to raise any issues resolved in the final rule. After the filing deadline specified in the final rule, issues resolved in the final rule cannot be raised again in any subsequent proceedings.
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A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on food, which includes raw agricultural commodities and processed foods and
When establishing a tolerance for residues of a pesticide, EPA must determine whether the Codex Alimentarius Commission (Codex) has established a Maximum Residue Limit (MRL) for that pesticide.
EPA periodically reviews existing registered pesticides to ensure they can continue to be used without unreasonable adverse effects on human health or the environment. The registration review program is intended to make sure that, as the ability to assess risk evolves and as policies and practices change, all registered pesticides continue to meet the FIFRA registration standard of no unreasonable adverse effects. As part of the registration review of a pesticide, EPA also evaluates whether existing tolerances are safe, whether any changes to existing tolerances are necessary or appropriate, and whether any new tolerances are necessary to cover residues from registered pesticides. Where appropriate, EPA has included a safety finding under the FFDCA for the proposed tolerance action for the pesticide, which is discussed in detail in the human health risk assessments conducted to support the registration review of each specific pesticide active ingredient or registration review case. In addition, these proposed tolerance changes are summarized in both the Proposed Interim Decision (PID), and in the Interim Decision (ID) for each pesticide active ingredient or registration review case. These documents can be found in the public docket that has been opened for each pesticide, which is available online at
EPA is proposing to take the specific tolerance actions identified in this unit.
EPA is proposing to amend the current tolerances by:
• Revising the tolerance expression for chlorsulfuron to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of chlorsulfuron not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.
• Merging the established tolerances into a single paragraph for clarity.
• Modifying tolerance values or tolerance levels for “Grass, forage”; “Grass, hay”; “Oat, forage”; and “Wheat, forage” to reflect current OECD rounding practices.
During registration review, EPA assessed the risks from exposure to chlorsulfuron, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to chlorsulfuron residues. Thus, EPA has determined that the tolerances for residues of chlorsulfuron are safe. Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expression. For further detail, see
EPA is proposing to amend the current tolerances by:
• Revising the tolerance expression for primisulfuron-methyl to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of primisulfuron-methyl not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.
EPA has determined that the proposed change to the tolerance expression would not impact EPA's previous safety findings for the established tolerances for primisulfuron-methyl, because the change has no substantive effect on the tolerances or supporting risk assessments, but rather is merely intended to clarify the existing tolerance expression. For further detail, see
EPA is proposing to amend the current tolerances by:
• Revising the tolerance expression for triasulfuron to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of triasulfuron not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.
EPA has determined that the proposed change to the tolerance expression would not impact EPA's previous safety findings for the established tolerances for triasulfuron, because the change has no substantive effect on the tolerances or supporting risk assessments, but rather is merely intended to clarify the existing tolerance expression. For further detail, see
EPA is proposing to amend the current tolerances by:
• Modifying the tolerance level for residues of halosulfuron-methyl in or on asparagus from 0.8 ppm to 1 ppm to harmonize with the Canadian MRL. There are no Codex MRLs for this pesticide chemical.
• Converting the existing crop group tolerances for “vegetable, fruiting, group 8” and “nut, tree, crop group 14” to the updated crop group tolerances for “vegetable, fruiting, group 8-10” and “nut, tree, crop group 14-12,” respectively. The tolerance levels would remain the same. 40 CFR 180.40(j) states that “[a]t appropriate times, EPA will amend tolerances for crop groups that have been superseded by revised crop groups to conform the pre-existing crop group to the revised crop group.” EPA has indicated in updates to its crop group rulemakings that registration review is one of those appropriate times.
• Removing tolerances for residues of halosulfuron-methyl in or on certain commodities. Specifically, EPA is proposing to remove the tolerance for “pea and bean, succulent shelled, subgroup 6” because it is an incorrect entry; no such crop subgroup exists. Instead, these commodities are covered under the established tolerance for “pea and bean, succulent shelled, subgroup 6B” at the same tolerance level. In addition, EPA proposes to remove tolerances for okra and pistachio as unnecessary, because they would be covered by the updated crop group tolerances for “vegetable, fruiting, group 8-10” and “nut, tree, crop group 14-12,” respectively, at the same tolerance levels.
During registration review, EPA assessed the risks from exposure to halosulfuron-methyl, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to halosulfuron-methyl residues. Thus, EPA has determined that the tolerances for residues of halosulfuron-methyl are safe. Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expression. For further detail, see
EPA is proposing to amend the current tolerances by:
• Revising the tolerance expression for sulfosulfuron to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of sulfosulfuron not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression do not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.
• Removing the tolerances for residues of sulfosulfuron in or on hog, meat (0.005 ppm); hog, fat (0.005 ppm); and hog, meat byproducts (0.05 ppm). EPA has determined that there is no reasonable expectation of finite residues of concern in swine. See 40 CFR 180.6(a)(3). Moreover, a re-evaluation of tolerance enforcement methods determined that the limits of quantitation for these methods is 0.01 ppm.
During registration review, EPA assessed the risks from exposure to sulfosulfuron, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to sulfosulfuron residues. Thus, EPA has determined that the tolerances for residues of sulfosulfuron are safe. Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expression. For further detail, see
EPA is proposing to amend the current tolerances by:
• Revising the tolerance expression for iodosulfuron-methyl-sodium to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of iodosulfuron-methyl-sodium not specifically mentioned; and (2) that compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression do not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.
EPA has determined that the proposed change to the tolerance expression would not impact EPA's previous safety findings for the established tolerances for iodosulfuron-methyl-sodium, because the change has no substantive effect on the tolerances or supporting risk assessments, but rather is merely intended to clarify the existing tolerance expression. For further detail, see
EPA is proposing to amend the current tolerances by:
• Revising the tolerance expression for trifloxysulfuron, resulting from the application of its sodium salt, to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of trifloxysulfuron not specifically mentioned; and (2) that compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression do not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.
• Revoking tolerances for residues of trifloxysulfuron in or on almond (0.02 ppm) and almond hulls (0.01 ppm). Almonds are no longer included as a use site on any trifloxysulfuron-sodium product labels; therefore, the Agency is proposing to revoke the established tolerances. In addition, to allow a reasonable interval for producers in exporting members of the World Trade Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures Agreement to adapt to these requirements in the final rule, EPA is proposing to amend the existing tolerances to include an expiration date that would be six months after the date of publication of the final rule in the
During registration review, EPA assessed the risks from exposure to trifloxysulfuron-sodium, taking into consideration all reliable data on toxicity and exposure, including for infants and children. Based on the supporting risk assessments and registration review documents, which demonstrate that the aggregate exposure is below the Agency's level of concern, EPA concludes there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to trifloxysulfuron-sodium. Thus, EPA has determined that the tolerances for residues of trifloxysulfuron, resulting from the application of its sodium salt, are safe. Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expression. For further detail, see
EPA is proposing to amend the current tolerances by:
• Revising the tolerance expression for mesosulfuron-methyl to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of mesosulfuron-methyl not specifically mentioned; and (2) that compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression do not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.
EPA has determined that the proposed change to the tolerance expression would not impact EPA's previous safety findings for the established tolerances for mesosulfuron-methyl, because the change has no substantive effect on the tolerances or supporting risk assessments, but rather is merely intended to clarify the existing tolerance expression. For further detail, see
EPA is proposing that these tolerance actions would be effective on the date of publication of the final rule in the
Additional information about these statutes and Executive Orders can be found at
This action is exempt from review under Executive Order 12866 (58 FR 51735) (October 4, 1993), as amended by Executive Order 14094 (88 FR 21879) (April 11, 2023), because it proposes to establish or modify a pesticide tolerance or a tolerance exemption under FFDCA section 408. This exemption also applies to tolerance revocations for which extraordinary circumstances do not exist. As such, this exemption applies to the tolerance revocations in this proposed rule because the Agency knows of no extraordinary
This action does not impose an information collection burden under the PRA 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601
Additionally, in a 2001 memorandum, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation.
For the pesticides named in this proposed rule, EPA concludes that there is no reasonable expectation that residues of the pesticides for tolerances listed in this proposed rule for revocation will be found on the commodities discussed in this proposed rule, and the Agency knows of no extraordinary circumstances that exist as to the present proposed rule that would change EPA's previous analyses.
Any comments about the Agency's determination for this rulemaking should be submitted to EPA along with comments on the proposed rule and will be addressed in the final rule.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255) (August 10, 1999), because it will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249) (November 9, 2000), because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
Executive Order 13045 (62 FR 19885) (April 23, 1997) directs federal agencies to include an evaluation of the health and safety effects of the planned regulation on children in federal health and safety standards and explain why the regulation is preferable to potentially effective and reasonably feasible alternatives. This action is not subject to Executive Order 13045 because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866 (See Unit V.A.), and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. However, EPA's
This rule proposes tolerance actions under the FFDCA, which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” (FFDCA 408(b)(2)(C)). Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of these proposed tolerance actions. The Agency's consideration is documented in the pesticide specific registration review decision documents. See the pesticide specific discussions in Unit III. and access the chemical specific registration review documents in each chemical docket at
This action is not subject to Executive Order 13211 (66 FR 28355) (May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
This action does not involve technical standards under the NTTAA section 12(d), 15 U.S.C. 272.
Executive Order 12898 (59 FR 7629) (February 16, 1994) directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color and/or indigenous peoples) and low-income populations. As discussed in more detail in the pesticide specific risk assessments conducted as part of the registration review for each pesticide as identified in Unit III., EPA has considered the safety risks for the pesticides subject to this rulemaking and in the context of the tolerance actions set out in this rulemaking. EPA believes that the human health and environmental conditions that exist prior to this action do not result in disproportionate and adverse effects on people of color, low-income populations, and/or indigenous peoples. Furthermore, EPA believes that this action is not likely to result in new disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples.
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, it is proposed that 40 CFR chapter I be amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
The revision reads as follows:
(a)
The revision reads as follows:
(a)
The revisions and additions read as follows:
(2) * * *
The revision reads as follows:
(a)
The revision reads as follows:
(a)
The revisions and additions read as follows:
(a)
The revision reads as follows:
(a)
Environmental Protection Agency (EPA).
Notice of filing of petition and request for comment.
This document announces the Agency's receipt of an initial filing of a pesticide petition requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before October 12, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2023-0069, through the
Madison Le, Biopesticides and Pollution Prevention Division (BPPD) (7511M), main telephone number: (202) 566-1400, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the
Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.
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21 U.S.C. 346a.
Bureau of Land Management, Interior.
Proposed supplementary rule.
The Bureau of Land Management (BLM) is proposing a supplementary rule to protect natural resources and provide for public health and safety. The proposed supplementary rule would apply to all public lands and BLM facilities in Wyoming.
You should submit your comments by November 13, 2023.
You may submit comments by the following methods: Mail or hand deliver to Deborah Sullivan, State Chief Ranger, BLM Wyoming State Office, 5353 Yellowstone Rd., Cheyenne, WY 82009. You may also submit comments via email to
Deborah Sullivan, State Chief Ranger (see address listed above), by phone at (307) 775-6268, or email at
Written comments on the proposed supplementary rule should be specific, be confined to issues pertinent to the proposed supplementary rule, and explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposed supplementary rule that the comment is addressing. The BLM is not obligated to consider or include in the Administrative Record for the final supplementary rule comments the BLM receives after the close of the comment period (see
Comments, including names, street addresses, and other contact information of respondents, will be available for public review at the address listed above, during regular business hours (7:30 a.m. to 4:30 p.m., Monday through Friday, except on Federal holidays). 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 we will be able to do so.
BLM state offices have issued various statewide supplementary rules to protect natural resources and provide for public health and safety. Individual BLM field offices have also issued various supplementary rules for travel management, protection of natural resources, and public health and safety.
This proposed supplementary rule would apply to all public lands in Wyoming. Proposed supplementary rule numbers 1 and 2 address general public conduct on public lands. Proposed supplementary rule numbers 3 through 7 address resource damage and public safety concerns involving the use of exploding targets, flammable devices, and target shooting. Proposed supplementary rule numbers 8 and 9 address the possession or use of alcohol on public lands. Proposed supplementary rule number 10 addresses the possession of drug paraphernalia in violation of state law. Proposed supplementary rule number 11 requires trailers on public land to have current registration. Proposed supplementary rule number 12 adopts Wyoming Revised Statutes regarding hunting, fishing, boating, and outfitters. Proposed supplementary rule number 13 further clarifies existing Federal regulations found in 43 CFR 9264.1(h) relating to vehicles, game animals, boating, and river outfitters.
Proposed supplementary rule number 14 addresses the burning of wood pallets containing nails or staples on public land. Campsites in popular areas on public land are used repeatedly throughout the spring, summer, and fall. As use increases, the availability of firewood decreases, leading more campers to bring construction debris or wood pallets with nails or staples in them to use as firewood. The nails and staples end up in campfire ash left at the campsite. In an effort to return campsites to a more primitive condition, many campers scatter ashes and rock rings before leaving their campsite. The nails or staples end up on the ground surface, causing flat tires. Proposed supplementary rule number 14 would reduce the risk of tire damage from discarded nails and staples in popular camping areas.
Proposed supplementary rule numbers 15 and 16 address impacts to wild horses from increased visitation, photography, and tours within their natural habitat. Wild horses can lose their wariness of humans due to acclimation with, close proximity to, and feeding by humans; this results in an increased likelihood of injury to a visitor or to a wild horse.
The proposed supplementary rule is in conformance with the following resource management plans (RMPs), as amended:
The proposed supplementary rule is not a significant regulatory action and is not subject to review by the Office of Management and Budget under Executive Order (E.O.) 12866, as amended by E.O. 14094. It does not have an annual effect of $200 million or more on the economy. It does not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. It does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. It does not materially alter the budgetary effects of entitlements, grants, user fees, loan programs, or the rights or obligations of their recipients, nor does it raise novel legal or policy issues. The proposed supplementary rule merely establishes conduct for public use of a limited area of public lands.
The BLM has found that the proposed supplementary rule comprises a category or kind of action that has no significant individual or cumulative effect on the quality of the human environment. See 40 CFR 1508.4; 43 CFR 26.210. Specifically, the promulgation of the proposed supplementary rule—which prohibits violating existing state laws or engaging in activities that fall within 43 CFR 8365.1-4's general prohibition on creating a hazard or nuisance—is an action that is of an administrative, financial, legal, technical, or procedural nature within the meaning of 43 CFR 26.210(i), and none of the extraordinary circumstances listed at 43 CFR 26.215 are applicable.
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This proposed supplementary rule merely establishes conduct for public use of a limited area of public lands. Therefore, the BLM has determined under the RFA that the proposed supplementary rule would not have a significant economic impact on a substantial number of small entities.
The proposed supplementary rule is not considered a `major rule' as defined under 5 U.S.C. 804(2). The proposed supplementary rule merely establishes conduct for public use of a limited area of public lands and does not affect commercial or business activities of any kind.
The proposed supplementary rule will not impose an unfunded mandate on State, local, or Tribal governments in the aggregate, or the private sector, of more than $100 million per year, nor will it have a significant or unique effect on small governments. The proposed supplementary rule will have no effect on governmental or Tribal entities and will impose no requirements on any of
The proposed supplementary rule is not a government action capable of interfering with constitutionally protected property rights. The proposed supplementary rule does not address property rights in any form and would not cause the impairment of constitutionally protected property rights. Therefore, the BLM has determined that the proposed supplementary rule will not cause a “taking” of private property or require further discussion of takings implications under this Executive order.
The proposed supplementary rule 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. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed supplementary rule will not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM has determined that this proposed supplementary rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 13175, the BLM has found that this proposed supplementary rule does not include policies that have Tribal implications and would have no bearing on trust lands, lands for which title is held in fee status by Indian Tribes, or U.S. Government-owned lands managed by the Bureau of Indian Affairs.
This proposed supplementary rule does not constitute a significant energy action. This proposed supplementary rule would not have an adverse effect on energy supply, production, or consumption and has no connection with energy policy.
In accordance with Executive Order 13352, the BLM has determined that the proposed supplementary rule would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; would properly accommodate local participation in the Federal decision-making process; and would provide that the programs, projects, and activities are consistent with protecting public health and safety.
This proposed supplementary rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.
The principal author of this proposed supplementary rule is Deborah Sullivan, State Chief Ranger, BLM Wyoming State Office.
For the reasons stated in the Preamble and under the authority of 43 U.S.C. 1733(a), and 1740, and 43 CFR 8365.1-6, the BLM Wyoming State Director proposes a supplementary rule for public lands and BLM facilities in Wyoming, to read as follows:
A person commits breach of peace as defined by W.S. 6-6-102 if s/he disturbs the peace of a community or its inhabitants by unreasonable loud noise or music or by using threatening, abusive, or obscene language or violent actions with knowledge or probable cause s/he will disturb the peace.
(a) That is open or has a broken seal; or
(b) The contents of which are partially removed.
Unless otherwise authorized, the following acts are prohibited on all public lands, roads, trails, facilities, or waterways administered by the BLM in Wyoming:
1. You must not engage in disorderly conduct.
2. You must not engage in public indecency.
3. You must not possess or discharge fireworks.
4. You must not possess, discharge, or use explosives, incendiary or chemical devices, or exploding targets, including but not limited to ammonium nitrate- and aluminum powder-based binary explosives.
5. All rifle and pistol target shooting activities shall be into a backstop of material that prevents further travel or ricochet of the bullet.
6. You must not shoot at materials other than paper or cardboard targets, biodegradable clay pigeons, or plastic and steel targets manufactured specifically for shooting sports. Shooting at electrical components such as televisions, computers, or computer
7. You must not possess, discharge, or use flammable devices, including but not limited to gasoline bombs commonly referred to as “Sobe Bombs” or flammable projectiles discharged from a launching tube or other device.
8. You must not drink an alcoholic beverage or possess an open alcoholic beverage container while in the passenger area of a motor vehicle, including off-highway vehicles.
9. You must not violate any State laws relating to the purchase, possession, use, or consumption of alcohol.
10. You must not possess any drug paraphernalia in violation of State law.
11. You must not tow or be in possession of a trailer requiring registration under Wyoming Revised Statues that is either unregistered or has an expired registration.
12. You must not violate any Wyoming Revised Statute regarding hunting, fishing, boating, or outfitters.
13. You must not violate any Federal or State laws or regulations concerning conservation or protection of natural resources or the environment, including but not limited to those relating to air and water quality, protection of fish and wildlife, plants, and the use of a chemical toxicant.
14. You must not burn wood pallets containing nails or staples.
15. You must not intentionally engage in any activity within any distance that disturbs, displaces, or otherwise interferes with the free unimpeded movement of wild horses.
16. You must not feed, water, or touch any wild horse.
The following persons are exempt from the supplementary rule: any Federal, State, local, or military employees or contractors acting within the scope of their official duties; members of any organized rescue or fire-fighting force performing an official duty; and persons who are expressly authorized or approved by the BLM.
Any person who violates this supplementary rule may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8560.0-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Wyoming law.
Administration for Community Living (ACL), Department of Health and Human Services (HHS).
Notice of proposed rulemaking.
The Administration for Community Living (ACL) within the Department of Health and Human Services (“the Department” or HHS) is issuing this Notice of Proposed Rulemaking (NPRM) to modify the implementing regulations of the Older Americans Act of 1965 (“the Act” or OAA) to add a new subpart (Subpart D) related to Adult Protective Services (APS).
To be assured consideration, comments must be received no later than November 13, 2023.
You may submit comments, including mass comment submissions, to this proposed rule, identified by RIN Number 0985-AA18, by any of the following methods:
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•
Do not include any personally identifiable information (such as name, address, or other contact information) or confidential business information that you do not want publicly disclosed. All comments may be posted without change to content to
We will consider all comments received or officially postmarked by the methods and due date specified above. Because of the large number of public comments we normally receive on
Please note that comments submitted by fax or email, and those submitted or postmarked after the comment period, will not be accepted.
Stephanie Whittier Eliason, Team Lead, Office of Elder Justice and Adult Protective Services, Administration on Aging, Administration for Community Living, Department of Health and Human Services, 330 C Street SW, Washington, DC 20201. Email:
The Administration for Community Living (ACL) within the Department of Health and Human Services (HHS) is issuing this Notice of Proposed Rulemaking to modify 45 CFR part 1324 of the implementing regulations of the Older Americans Act of 1965 (OAA or “the Act”) to add a new subpart (Subpart D). The proposed rules exercise ACL's authority to regulate Adult Protective Service (APS) systems under section 201 of the Act, 42 U.S.C. 3011(e)(3) and section 2042(a) of the Elder Justice Act (EJA), 42 U.S.C. 1397m-1(a). Currently, there are no Federal standards for APS systems, leading to wide variation in policies and procedures, thus resulting in inconsistent service delivery across States and confusion for APS systems and the general public, including victims of adult maltreatment. Historically, APS programs and administrators have lacked reliable information and guidance on best practices and standards for conducting case investigations and for staffing and managing APS programs. These challenges have impaired States' ability to respond in an effective and timely way to reports of adult maltreatment and to assess client outcomes and the effectiveness of the services they are providing. Nationally, this results in a fragmented and unequal system that can hinder coordination and lead to the absence of critical support for some people experiencing maltreatment. The proposed regulation will create a national standard to elevate evidence-informed practices, bring clarity and uniformity to programs, and improve the quality of service delivery for adult maltreatment victims and potential victims.
Adult maltreatment is associated with significant physical and mental health consequences as well as financial losses. Older adults and people with disabilities may also experience deteriorated family relationships, diminished autonomy, and institutionalization, all of which can impact quality of life.
APS programs often link adults subject to maltreatment to community social, physical health, behavioral health, and legal services which help them maintain independence in the settings they prefer to live. APS programs are also often the avenue through which adult maltreatment is reported to police or other agencies of the criminal justice system. As such, APS plays a critical role in the lives of adults more likely to be subjected to maltreatment, particularly older adults and adults with disabilities. APS programs receive and respond to reports of adult maltreatment, and work closely with clients and a wide variety of allied professionals to maximize safety and independence and provide a range of services to the people they serve, including:
• receiving and investigating reports of adult maltreatment;
• case planning, monitoring, evaluation, and other case work and services; and
• providing, arranging for, or facilitating the provision of medical, social service, economic, legal, housing, law enforcement, or other protective, emergency, or support services.
APS is a social and human services program. Working collaboratively and with the consent of the victim, APS caseworkers develop service plans and connect the victim to social, health, and human services. The focus of APS is entirely on assisting the victim to recover from the experience of maltreatment. As a social services program, the “findings” in an APS case are not legal determinations, either civil or criminal. Rather, if APS suspects that an act of maltreatment falls under a State's criminal statutes, APS will refer the case to law enforcement.
As discussed in greater detail in the
In 2021, ACL fielded a survey (OMB Control No. 0985-0071) of 51 APS systems (the 50 States and the District of Columbia).
As discussed in the
While the State entity establishes APS policy, conducts training, administers funding, and provides information technology infrastructure support to local APS programs in almost all APS systems,
Eligibility for APS services varies dramatically across the States, Tribal Nations, and Territories. States use age and terms such as “disability,” “dependency,” or “vulnerability” to define the populations they serve.
Responsibility for investigations involving residents in congregate residential facilities such as nursing facilities, assisted living facilities, and group homes varies across APS systems. Most APS systems investigate allegations of maltreatment that do not involve the facility or its staff, and a few APS programs investigate allegations involving the staff of the facility.
In an effort to elevate uniform evidence-informed practices across APS programs, ACL issued Voluntary Consensus Guidelines for State APS Systems (Consensus Guidelines) in 2016, which were subsequently updated in 2020.
The Consensus Guidelines represent recommendations from the field based on experience and expertise serving adults and communities. These guidelines provide a core set of principles and common expectations to encourage consistency in practice, ensure adults are afforded similar protections and APS services regardless of locale, and support interdisciplinary and interagency coordination. These recommendations enhance effective, efficient, and culturally competent APS service delivery. While the Consensus Guidelines have been commended by APS systems and the APS community, they have yet to produce measurable change in APS systems or practice, and consistency and uniformity are still lacking across and within APS systems. Our recently published National Process Evaluation Report using 2021 data and ongoing NAMRS data collection bear out gaps between current State policy and practice and the recommendations contained in the Consensus Guidelines. We have received feedback from the APS community that because the Consensus Guidelines are voluntary recommendations and not regulatory requirements, their efficacy is limited.
These proposed rules are informed by the extensive research, analysis, community input, and recommendations of our Consensus Guidelines, as well as experience and information from our NAMRS data, and the 2021 51 State National Process Evaluation Report.
APS programs have historically been administered and primarily funded by States. They have been recognized in Federal law since 1974 when the Social Security Act was amended by the Social Services Amendments of 1974 (Pub. L. 93-647), 42 U.S.C. 1397a(a)(2)(A) to permit States to use Social Services Block Grant (SSBG) funding under Title XX for APS programming. However, while most States currently use SSBG funding for their APS programs, the amount of SSBG funding allocated to APS varies and the allocations can be very small.
Through a series of legislative actions, Congress designated ACL as the Federal entity with primary responsibility for providing Federal policy leadership and program oversight for APS. This includes authority granted by the OAA to promulgate regulations, to oversee formula grants to State and Tribal APS programs, to enhance APS programs, to collect data to increase APS effectiveness, and to directly link the authorities of the EJA with those contained in the OAA.
Title VII of the OAA (Vulnerable Elder Rights Protection Activities), enacted in 1992, authorizes funding to States to address protections for vulnerable adults. Some activities are specifically identified to be conducted with Title VII funding. Section 201(e) of the OAA, 42 U.S.C. 3011(e) added in 2006, vests responsibility for a coordinated Federal and national response to elder justice issues broadly with the Assistant Secretary for Aging. ACL has rulemaking authority for elder justice activities by virtue of section 201(e)(3), 42 U.S.C. 3011(e)(3), which states, “the Secretary, acting through the Assistant Secretary, may issue such regulations as may be necessary to carry out this subsection . . .” and specifically references the responsibility of the Assistant Secretary for elder abuse prevention and services, detection, treatment and response in coordination with heads of State APS programs. Section 2042(b) of the EJA, 42 U.S.C. 1397m-1, establishes an APS grant program under which the Secretary annually awards grants to States. The Secretary of HHS has designated ACL as the grant-making agency for APS. Coupled together, the EJA and OAA provide the Assistant Secretary with broad authority to coordinate, regulate, and fund State APS systems.
Through the enactment of the EJA in 2010, Congress again recognized the need for a more coordinated national elder justice and APS system. The EJA creates a national structure to promote research and technical assistance to support Federal, State, and local elder justice efforts, as well as authorization for dedicated APS funding. A component of the EJA is specifically designed to address the need for better Federal leadership. The Federal Elder Justice Coordinating Council (EJCC) is established by the EJA
Since Fiscal Year (FY) 2015, Congress has appropriated funds to ACL in support of APS through section 2042(a) and 2401(c) of the Elder Justice Act. This funding is used to collect data, disseminate best practices, and provide discretionary elder justice demonstration grants.
On numerous occasions, the APS community has stressed the need for more Federal guidance, leadership, stewardship, resources, and support for State and local APS programs and for victims of adult maltreatment. Advocates have requested greater funding and Federal regulatory guidance for APS systems in their testimony before Congress,
The GAO conducted three studies on the topic of abuse, neglect, and exploitation between 2010 and 2013 to shed light on the need for Federal leadership. The studies' findings repeatedly recommend a coordinated, Federal response to address the gaps in public awareness, prevention, intervention, coordination, and research of elder maltreatment, as well as a Federal “home” for APS.
This proposed rule represents the first exercise of ACL's regulatory authority over APS under the OAA and the EJA. While we have issued sub-regulatory guidance, including comprehensive Consensus Guidelines in 2016 and 2020 that include APS evidence-informed practices, we believe it is necessary to codify and clarify a set of mandatory minimum national standards to ensure uniformity across APS programs and to promote high quality service delivery that thus far has not been achieved under the current Consensus Guidelines.
In determining the scope of the APS regulations, we considered modeling our regulations after the child protective services (CPS) regulations administered by the Department's Administration for Children and Families.
Instead of providing detailed and broad requirements like those that apply to CPS, our proposals require the State entity to establish written policies and procedures in areas of significant APS practice. In the interests of transparency, we considered mandating that State entities disclose such policies and procedures (for example, through publication on a State website) except where such disclosure might adversely affect law enforcement efforts, but we ultimately decided to leave such disclosure to State discretion. We welcome comment on the costs and benefits of mandating such disclosure.
Our proposed standards are a minimum floor. States may impose additional requirements on their APS systems above and beyond these proposed minimum Federal standards. ACL invites comment on both the scope and depth of topics proposed for regulatory action and the rationale presented.
Proposed § 1324.400 clarifies that eligibility for funding is conditioned on compliance with all proposed regulatory provisions. Under the proposed rules, State entities eligible for annual funding from ACL through section 2042 of the EJA, 42 U.S.C. 1397m-1(b) are required to submit a State plan in accordance with § 1324.408 detailing their activities, which ACL proposes to review and approve as a means of verifying compliance with the proposed rule. A State that failed to submit an approvable State plan would no longer be eligible for funding under section 2042(b) of the EJA.
ACL will provide States support and technical assistance in developing an approvable State plan. All States are afforded an opportunity to appeal the Assistant Secretary's disapproval of a State plan submission under proposed § 1324.408(e). If a State declines or fails to qualify for section 2042(b) funding, ACL will redistribute the funds in accordance with the EJA section 2042 formula. Further information on State plan development will be provided in sub-regulatory guidance.
We propose to define the following terms in § 1324.401 to provide clarity on the terms used and referenced in this proposed rule: “Abuse,” “Adult,” “Adult maltreatment,” “Adult Protective Services (APS), ” “Adult Protective Services (APS) program,” “Adult Protective Services (APS) system,” “Allegation,” “Assistant Secretary for Aging,” “At risk,” “Case,” “Client,” “Conflict of Interest,” “Dual Relationship,” “Emergency Protective Action,” “Exploitation,” “Inconclusive,” “Intake or pre-
Definitions of note are discussed below.
We propose that adult maltreatment encompass five categories further defined in this Section: abuse, neglect, exploitation, sexual abuse, and self-neglect. Adult maltreatment occurs when there is self-neglect or when a perpetrator commits abuse, neglect, exploitation, or sexual abuse of an adult. The adult must have a relationship of trust with the perpetrator of abuse, neglect, exploitation, or sexual abuse and be at risk of harm from the perpetrator.
This proposed rule, in alignment with most States' policies, limits the definition of abuse or maltreatment to relationships of trust where the alleged victim is at risk of harm from the perpetrator. A relationship of trust includes a caregiving relationship or other familial, social, or professional relationship where a person assumes responsibility for protecting the interests of the adult or where expectations of care or protection arise by law or social convention.
Proposed § 1324.402(a) requires APS systems to respond to reports of adult maltreatment, which include allegations of abuse, neglect, exploitation, sexual abuse, and self-neglect. Currently, all APS systems are required by State statute to investigate allegations of neglect and physical abuse, and nearly all states investigate allegations of self-neglect, sexual abuse, financial exploitation, and emotional or psychological abuse.
However, definitions of these terms vary across States. In certain States, APS programs are not required to respond to certain forms of adult maltreatment. This means that adults are not adequately protected by APS throughout the United States.
In addition to our request for comment on the definition of adult maltreatment, we seek comment as to whether a mandatory requirement for investigation based on the definitions of abuse, neglect, exploitation, sexual abuse, and self-neglect is appropriate, adequately reflects the needs and experiences of APS systems, as well as any potential State and local burden associated with such a requirement.
Proposed § 1324.402(a) also requires the State entity to adopt certain policies and procedures for receiving and responding to reports of adult maltreatment. These policies and procedures must be person-directed and rely on concepts of least restrictive alternatives. Principles of person-directedness respect the integrity and authority of adults to make their own life choices. They promote APS clients' concepts of what safety and quality of life mean, and success and positive outcomes are defined by the client, not the APS worker. This provision sets minimum requirements for States as they establish or revise policies and procedures while still leaving flexibility to best meet their unique needs.
The State entity must create precise, standardized criteria for determining or assessing eligibility for APS services. States must also create clear and specific parameters of the settings, locations, and types of alleged perpetrators for which allegations of maltreatment will be investigated by their APS system. For example, States vary on whether they conduct investigations in congregate residential settings. In addition, States must establish processes to ensure the parameters are implemented consistently across APS programs in their State.
We propose that States define processes for receiving, screening, prioritizing, and referring cases based on risk and the nature of the adult maltreatment in a uniform and consistent manner across their State. Under this proposal, the State entity would be required to establish policies and procedures to manage a tiered risk-based assessment system, differentiating response requirements for cases that represent immediate and non-immediate risks. As proposed, immediate risk would be assessed via the likelihood of death, irreparable harm, or significant loss of income, assets, or resources. Responses should occur no later than 24 calendar hours (one calendar day) after receiving the report for cases representing an immediate risk, and no later than seven calendar days for cases of non-immediate risk.
Currently, there is data on all but one APS systems' tiered report response procedures. Two State APS systems have no priority levels, and one has two priority levels. The rest have three or more. States vary widely in their response time and not all States address high priority cases within 24 hours, although most do.
For allegations of adult maltreatment outside APS jurisdiction, we propose the State entity establish appropriate referral mechanisms and information and data sharing agreements with the state and/or local entity with jurisdiction to investigate.
In proposed § 1324.402(b), we require State entities to establish policies and procedures to inform potential APS clients of their rights at first contact with client. With this provision, we seek to address concerns that APS programs do not regularly inform potential clients of their rights under existing State laws,
Proposed § 1324.402(d) requires the State entity to establish policies and procedures for the staffing of APS systems. We propose to require States to establish a minimum staff to client ratio appropriate to the circumstances in the State. We believe, consistent with the literature, that fixed staff to client ratios in APS systems will improve health and safety outcomes for adult victims of maltreatment.
We also propose to require mandatory APS training as a part of implementing the proposed policies and procedures. Findings from a 2015-2018 survey completed by 49 APS offices found that half of programs were not training on core competencies while two had no training whatsoever.
Proposed § 1324.403 requires the State entity to develop and implement a standardized set of policies and procedures for essential APS functions throughout the lifecycle of a case. The purpose of an APS investigation is to collect information about the allegations of maltreatment, determine if the alleged victim is eligible for APS services, assess the immediate risk of the situation, conduct an investigation, and ultimately make a finding as to the presence or absence of adult maltreatment. If adult maltreatment is present, APS then identifies the service needs of the client and develops a plan, including recommendations or referrals to other entities, such as social services. Many, but not all, APS systems also follow cases post-investigation. If it is found the individual seeking APS services is ineligible, the APS program may develop referrals to appropriate services.
Proposed § 1324.403 sets forth requirements for the development of standardized, specific policies and procedures governing an APS investigation from initiation to post-investigation services. Initiation of the investigation encompasses screening and triaging reports as well as decision-making processes for determining immediate safety and risk factors affecting the adult. The investigation itself includes the collection of relevant information and evidence. Policies and procedures must also detail methods to make determinations on allegations and record case findings, including consultation with outside experts when appropriate. Professional fields for such experts include: medicine, social work, behavioral health, finance/accounting, and long-term care. We likewise propose the APS worker provide referrals to other agencies and programs, as appropriate under State law, such as referrals to Area Agencies on Aging (AAAs), State Medicaid programs, or Centers for Independent Living for services. For example, the APS program may make a referral to the State Medicaid agency for home and community-based services to mitigate harm and assist the victim in recovery from the abuse. During the course of an investigation, APS may in limited circumstances take emergency protective action, which we propose to define in § 1324.401. Such action should be person-directed and taken as a last resort after exploring all other viable options, prioritizing community integration, autonomy, and individual choice. This proposed section also requires the APS investigator or supervisor to communicate results of the investigation to the client.
Post-investigation services are provided through a variety of mechanisms and funding sources. APS staff may provide services directly (
Proposed § 1324.403 draws heavily from the Consensus Guidelines.
Proposed § 1324.404 requires the State entity to establish policies and procedures to prevent, recognize, and promptly addresses both real and perceived conflicts of interest at the organizational and individual level. Trust in APS by individuals receiving services and the broader community is essential to the ability of APS programs to effectively perform their functions. APS programs form partnerships and referral relationships with allied organizations and professionals to provide necessary services and supports to victims of adult maltreatment before, during, and after intake and investigation. Conflicts of interest may arise when a State employee, APS worker, or APS system's financial or personal interests influence, or are at odds with, the interests of a client or cohort of clients.
Many APS programs that provide services for victims of adult
Individual APS workers may face conflicts of interest if they are in a “dual relationship” serving multiple roles for a single client. For example, an individual who serves as both an APS worker and a long-term services and supports options counselor for the same client may be unable to make objective findings of adult maltreatment in a case where a caregiver is an alleged perpetrator of adult maltreatment against the client. The individual serving as APS worker and options counselor may, in their role as APS worker, choose not to substantiate findings of adult maltreatment against the caregiver because, as an options counselor, they know the client chooses the alleged perpetrator as their caregiver. We propose these dual relationships be permitted only when unavoidable and that conflicts of interest be appropriately mitigated.
We further propose that APS programs have policies and procedures that ensure conflicts of interests are avoided and, if found, remedied. These procedures could include firewalls and disclosure requirements. We seek comment on whether our proposal reflects the universe of actual and potential conflicts of interest, those who may be a party to a conflict, and ways in which we may strengthen these requirements while not placing undue programmatic or administrative burden on APS systems.
Proposed § 1324.405 requires the State entity to have policies and procedures for accepting reports of adult maltreatment. We propose such policies and procedures require prompt receipt of reports of alleged maltreatment, including multiple methods for receiving reports 24 hours a day, 7 calendar days a week in manners that are fully accessible (
APS receives reports from both the general public and individuals mandated by the State to report suspected adult maltreatment. Mandatory reporting is an essential tool in combating adult maltreatment; 49 States currently have mandatory reporting statues.
Proposed § 1324.406(a) requires the State APS system to coordinate with other State and local governmental agencies, community-based organizations, and other entities engaged in activities to promote the health and wellbeing of older people and adults with disabilities for the purposes of addressing the needs of the adult experiencing the maltreatment. These entities include, but are not limited to, the Long-Term Care Ombudsman, State offices that handle scams and frauds, State and local law enforcement, State Medicaid agencies and other State agencies responsible for home and community-based services (HCBS) programs, and financial services providers. Such coordination maximizes the resources of APS systems, improves investigation capacity, and ensures post-investigation services are effective. We have chosen to require States coordinate with these specific entities to ensure coordination with critical partners in the investigation of abuse, neglect, and exploitation. Various non-APS entities have authority to investigate maltreatment based on who the victim and perpetrator of the maltreatment are, and where the maltreatment took place. An effective, holistic response to adult maltreatment must include all enumerated entities working in coordination with APS. Currently, the research suggests this is not taking place.
Proposed § 1324.406(b) requires the State APS system to develop policies and procedures to address coordination and information sharing with several governmental and private entities both within a State and across State lines for the purpose of carrying out investigations. Coordination could include development of memoranda of understanding (
State authority to investigate alleged maltreatment of adults resides in different entities. Therefore, it is imperative to have a clear understanding of which entities are responsible for which types of investigations. Which entity is responsible for an investigation will depend upon various factors including: the location or setting of the maltreatment; the category of adult maltreatment; the relationship between an alleged perpetrator and an alleged victim; and the characteristics of the alleged victim. To help resolve confusion within States, we propose in § 1324.406(b) that the APS programs develop and implement information and data sharing agreements to ensure coordination of investigations and that appropriate referrals are made when APS receives a report that is outside their jurisdiction to investigate, including with law enforcement, the State Medicaid office, and State licensing and certification agencies. Coordination between entities reduces the imposition of multiple investigations on adults who have been harmed and helps prevent future maltreatment. Such agreements will allow one program to share with the other information about alleged maltreatment by someone who works with, or who has a relationship of trust with, individuals being served by both organizations. Additionally, such agreements will allow the sharing of information between these entities on the outcome of individual investigations, as permissible under State law. For example, this could include communication of the results to State Medicaid agencies in instances in which a Medicaid provider or direct care worker is determined by APS to be a perpetrator of the maltreatment. We seek comment on our proposals.
We also believe it is critical to address coordination across States given that perpetrators may move a victim to another jurisdiction or may move to another jurisdiction themselves where they engage in the same practices investigated in the first State. We request comments and examples of best practices on how coordination and collaboration with other States and local jurisdictions may be effectively achieved, minimizing administrative burden.
Proposed § 1324.407 requires the APS State entity to collect and report aggregated data annually to ACL.
We also propose that the State entity develop policies and procedures regarding the maintenance of individual APS case data. We propose that APS systems keep the individual data set for at least five years. We believe five years is an appropriate timeframe to allow APS programs to assess clients across time to determine whether repeated abuse or recidivism is occurring, providing APS knowledge critical to prevent future instances of maltreatment. In developing our proposal, we considered a requirement of ten years; while a longer timeframe would improve data accuracy, it would increase burden for States. We seek comment on whether five years is an appropriate timeframe or whether a greater or lesser duration is optimal.
Proposed § 1324.407 requires each APS State entity to develop a State plan consistent with 45 CFR 75.206(d) and requirements set forth in the EJA and by the Assistant Secretary for Aging.
State plans also can be used to translate activities, data, and outcomes into proven best practices, which can be used to leverage additional resources. State plans promote coordination and collaboration to better serve the people of a State by providing a blueprint that describes what the State will undertake to meet the needs of the population it serves. The State plan should be developed in conjunction with the APS programs and with input from interested parties and updated at least every five years or as frequently as every three years at State option..
ACL has administrative oversight responsibility with respect to the expenditures of Federal funds pursuant to the EJA. As a condition of approval and receipt of Federal funding, APS systems must include assurances in their State plans that they will develop and adhere to policies and procedures as defined by these regulations. ACL will provide technical assistance to States regarding the preparation of State plans and are responsible for reviewing those that are submitted for compliance. Annual State program performance data collected and submitted to ACL pursuant to § 1324.407 will be used to measure performance and assess the extent to which State systems are meeting State plan objectives.
State plans will be reviewed and approved by the Director of the Office for Elder Justice and Adult Protective Services (OEJAPS), the position designated by Sec. 201(e)(1) of the OAA, 42 U.S.C. 3011(e)(1). A State entity dissatisfied with the Director of OEJAPS' final determination may appeal to the Deputy Assistant Secretary for review not later than 30 calendar days after the date of the determination. The State entity will then be afforded an opportunity for a hearing before the
We seek comment on our proposals for the development of State plans as well as ACL oversight and monitoring of State plan objectives.
The proposed regulations seek to bring States into alignment with evidence-informed practices while recognizing that States should have the flexibility and discretion to tailor policies and procedures to their circumstances. In general, we have provided broad guidelines for the required policies and procedures but leave States to fill in the details and set their own standards as they develop new, or amend current, policies and procedures. In several areas, we have taken a more proscriptive approach to establish a uniform national baseline. Where we have been more directive, we have done so because we believe it is critical to the safety of maltreatment victims or potential victims, is foundational to the functioning of an APS system, or because the APS community has requested granular policy direction. These proscriptive requirements have been drawn from the evidence-informed Consensus Guidelines and represent promising practices for APS service delivery. We invite comment as to whether we have struck the appropriate balance between setting a proscriptive minimum floor for essential policies and procedures and leaving general implementation of the policies and procedures to State discretion.
We propose an effective date for these provisions of three years from date of issuance of the final rule.
ACL seeks comment on all issues raised by this proposed regulation as detailed above.
We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Orders 12866 and 13563 direct agencies to assess all 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). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
Under Executive Order 12866, “significant” regulatory actions are subject to review by the Office of Management and Budget (OMB). As amended by Executive Order 14094 entitled “Modernizing Regulatory Review” section 3(f) of the Executive order defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that may:
(1) have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, Territorial, or Tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.
It has been determined that this proposed rule is significant. Therefore, OMB has reviewed this proposed rule.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $177 million, using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This proposed rule would not result in impacts that exceed this threshold.
Compared to the baseline scenario wherein APS systems continue to operate under State law with no Federal regulation, we identify several impacts of this proposed rule. We anticipate that the proposed rule will: require the revision of State policies and procedures, require training on new rules for APS staff, require the submission of new State plans, require data sharing agreements between APS systems and other State entities, require APS systems create a feedback loop to provide information to mandatory reporters, require data reporting to ACL, inform potential APS clients of their rights under State law, and require new or updated record retention systems for certain States. We anticipate that the final rule will result in improved consistency in implementation of APS systems within and across States, clarity of obligations associated with Federal funding for administrators of APS systems, and will result in better and more effective service delivery within and across States with better quality investigations in turn leading to more person-directed outcomes.
This analysis describes costs associated with issuing APS regulations and quantifies several categories of costs to grantees (State entities) and sub-grantees (APS programs), collectively referred to as APS systems, and to ACL under the proposed rule. Specifically, we quantify costs associated with APS systems (1) revising policies and procedures, (2) conducting trainings, (3) implementing policies and procedures (3) reporting data to ACL (4) maintaining records retention system (5) developing State plans. The proposed effective date of this rulemaking is three years from the date of final publication. This is to allow for variation in the timing of State legislative sessions. We anticipate that all States will have fully implemented the rule by its effective date and impacts will be measurable by that time. We conclude the proposed rule would result in a cost of $3,532,916.99 to fully implement. This cost will be offset by improved investigations and better outcomes for the victims of adult maltreatment. This represents significant value, particularly given the widespread and egregious nature of adult maltreatment in the United States.
The analysis also includes a discussion of the potential benefits under the rule that we do not quantify. We request comments on our estimates
A detailed discussion of costs and benefits associated with the rulemaking follows.
This analysis anticipates that the proposed rule would result in one-time costs to State entities and APS programs to revise policies and procedures. The majority of APS systems currently maintain policies and procedures, often based on State statute. Data from our National Process Evaluation Report of Adult Protective Services (OMB Control Number 0985-0054) and State experiences incorporating concepts from the Consensus Guidelines suggest our proposed rules will establish a minimum standard that may reflect current practice in many States. For example, while all States currently require a screening process for intake, there is no uniformity or standardization in this process across or within States and detail contained in policies and procedures (if present) varies. Therefore, in requiring standard policies and procedures for APS systems, ACL anticipates that all APS programs may create new or revise their current policies and procedures under the proposed rule; however, the level of revision will vary by State. There is currently no data on the total number of APS programs. Our estimates reflect our understanding of the structure of State APS systems and the assumption that there is one program per county in local-level systems, totaling 928 APS programs nationwide.
We estimate that roughly half of these entities will require more extensive revisions, with the rest requiring limited revisions to their current policies and procedures. We estimate that programs with more extensive revisions will spend twenty (20) total hours on revisions per entity. Of these, fifteen (15) would be spent by a mid-level manager equivalent to a first-line supervisor (Occupation code 43-1011), at a cost of $30.47 unadjusted hourly wage, $60.94 per hour adjusted for non-wage benefits and indirect costs (15 × $60.94), while an average of five (5) hours would be spent by executive staff equivalent to a general and operations manager (Occupation code 11-1021), at a cost of $55.41 per hour unadjusted hourly wage, $110.82 per hour adjusted for non-wage benefits and indirect costs (5 × $110.82).
We monetize the time that would be spent by APS programs on revising policies and procedures by estimating a total cost per entity of $1,468.02 or $1,163.50, depending on the extent of the revisions. For the approximately 464 programs with less extensive revisions, we estimate a cost of approximately $539,864. For the 464 programs with more extensive revisions, we estimate a cost of approximately $681,244.80.28. We estimate the total cost associated with revisions with respect to the proposed rule for APS systems of $1,221,108.80.
The above estimates of time and number of State entities or APS programs that would revise their policies under the regulation are approximate estimates based on ACL's extensive experience working with APS systems, including providing technical assistance, and feedback and inquiries that we have received from State entities and APS programs. Due to variation in the types and sizes of State entities and incomplete data on local programs, the above estimates of time and number of entities that would revise their policies under the regulation is difficult to calculate precisely.
Senior ACL staff will train State entities by the ten (10) HHS regions assisted by its technical assistance provider the APS Technical Assistance Resource Center (TARC). We assume for each of the ten (10) regions that trainings will take three (3) hours of staff time for one Federal GS-14 equivalent
We monetize the time spent by Federal employees and contractors to prepare and conduct trainings for State entities by estimating a total cost per regional training of $2,562.54. For ten trainings a total of $25,625.40.
We monetize the time spent by State entities to prepare and conduct trainings for local APS programs at $121.88 per training. For 15 State entities we anticipate a total of $1,828.20.
We monetize the time spent by APS staff to receive a one-hour training at $379,496.
We monetize the total amount of time spent to give and receive trainings at $576,606.56. Of this, $550,981.16 is State expense and $25,625.40 is Federal expense.
The proposed rule requires several changes in APS practice which may represent a cost to States.
81 percent APS programs do not currently require a feedback loop for mandatory reporters.
In our proposed regulations, we require States to collect and report specific data to ACL. As in our NAMRS data collection system, this data collection uses existing State administrative information systems. Therefore, States will not incur new data collection costs as the result of this rulemaking. Most of the data collected are standard data used by the agency. Operating costs of the information systems are part of State agency operations and would not maintained solely for the purpose of submitting data in compliance with the proposed rules.
For data reporting from the State to ACL under the proposed regulations, we anticipate a similar system as NAMRS case component data currently reported voluntarily by States. We performed a burden estimate prior to launching this reporting system. We estimated for 35 States staff cost would be a total annual burden of 675 hours at $46.00 per hour (675 × $46.00) for a total of $31,050. IT staff total annual burden was estimated at 3,075 hours at $69.00 (3,075 × $69.00) per hour for a total of $212,175. Using this measure as a proxy, we estimate the proposed rule's data reporting requirements will cost a total of $339,480 annually for all 56 State entities.
The proposed rule imposes a new requirement that APS programs retain case data for five years. Many, but not all, programs currently retain case data for a number of years, but comprehensive information does not exist on State retention policies. We can extrapolate from data reporting in the NAMRS that most States retain case data for an average of two years.
This will be the first times State entities are required to develop and submit State plans under section 2042 of the Elder Justice Act, 42 U.S.C. 1397m-1(b). However, States develop spending plans under 45 CFR 75.206(d) every three to five years and, based on our extensive experience working with APS systems and OAA grantees on their State plans, we do not anticipate a significantly greater level of detail for the development of State plans. We anticipate for each State the equivalent of two (2) hour of executive staff equivalent to a general and operations manager (Occupation code 11-1021), at a cost of $55.41 per hour unadjusted adjusted hourly wage, $110.82 adjusted for non-wage benefits and indirect costs (2 × $110.82), and four (4) hours of a first-line supervisor (Occupation code 43-1011), at a cost of $30.47 per hour unadjusted hourly wage, $60.94 adjusting for non-wage benefits and indirect costs (4 × $60.94). State plans will be updated every three to five years. We monetize the cost of drafting one State plan at $465.40. We monetize 56 State plans at $26,062.40.
Older adults who experience maltreatment are three times more likely to experience adverse consequences to health, living arrangements, or financial arrangements than their counterparts who do not experience maltreatment.
While this proposed rule does not directly affect the underlying causes of maltreatment, which are complex and multifactorial, it does establish a national baseline of quality in APS practice to intervene in maltreatment and mitigate harm as it is occurring. We anticipate this could reduce the number of deaths that may occur during the course of an APS investigation.
Generally speaking, the benefits of the rule are difficult to quantify. The minimum standards proposed by the NPRM are in direct response to requests from APS systems for more guidance and uniformity in policy within and among States. We anticipate that if implemented, the rule would elevate evidence-informed practices, bring clarity and consistency to programs, and improve the quality of service delivery for adult maltreatment victims and potential victims. For example, if all States implemented 24 hour per day, 7 days per week reporting acceptance protocols, an individual experiencing maltreatment may be identified earlier, and an investigation could commence and intervene sooner. Staffing ratios can promote adequate staffing, allowing a worker to devote more time to a case. Training requirements allow caseworkers to better handle and resolve cases. It may also decrease repeat abuse through post-investigation services.
Similarly, proposals on APS coordination with other entities maximize the resources of APS systems, improve investigation capacity, ensure post-investigation services are effective, reduce the imposition of multiple investigations on adults who have been harmed, and help prevent future maltreatment.
Another example of a difficult to quantify benefit is a standardized timeframe for case record retention. There are currently no minimum requirements for States to retain their records. The proposed rule's five-year minimum retention period facilitates States' ability to track victims and perpetrators across time to deter abuse and identify recidivism while minimizing administrative burden.
The proposed rules were informed by expert-developed evidence-informed practices as articulated in our Consensus Guidelines. These evidence-informed practices, when implemented, will result in higher quality investigations allowing APS to apprehend perpetrators of adult maltreatment with greater frequency and accuracy, in turn protecting the health and wellbeing of older adults and adults with disabilities.
Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 601
APS is a State-based social services program controlled centrally by a State office. Thirty-nine APS systems are State-administered, meaning State staff operate programs out of locally placed State offices.
In State-administered systems, no small entities are implicated. State Government employees and offices are not small entities as defined by 5 U.S.C. 601. In the 15 county and hybrid administered systems, there are 459 counties of less than 50,000 people.
Much of the cost of implementation will be borne by State entities in both State-administered and county and hybrid-administered States. In both such systems, the State entity exercises significant control; the State entity receives and distributes Federal funding and is responsible for revising policies and procedures, training local entities, and reporting data to ACL. We monetize the average cost per State APS system to be $63,087.80. As an example, Colorado has an estimated 48 counties under 50,000 people. Assuming the State entity absorbs the 25 percent of the cost of implementation, each entity would incur $985.75 in implementation expenses per year. Much of this would be a one-time expense. North Carolina has ten counties under 50,000 people. On average, assuming the State entity absorbs 25 percent of the cost burden of the rule, each small entity would incur $4,731.58 in expense per year, much of this representing a one-time expense.
Furthermore, many small entities may already be in compliance with significant portions of these proposed regulations whether as written in policies and procedures or as informal practice.
Consequently, we have examined the economic implications of the proposed rule and find that if finalized, it will not have a significant economic impact on a substantial number of small entities.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement describing the agency's considerations. Policies that have federalism implications include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
The proposed rule requires State APS systems to implement policies and procedures reflecting evidence-based practices. Receipt of Federal funding for APS systems under the EJA Sec. 2042, 42 U.S.C. 1397m-1(b) is contingent upon compliance with these proposed rules. Many States are already in substantial compliance with this proposal, however, some may need to revise or update their current APS policies, develop new policies or, in some cases, pass new laws or amend existing State statutes.
Executive Order 13132 requires meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. As detailed in the preamble, the proposed regulations closely mirror the
The Consensus Guidelines were developed with extensive input from the APS community, including State and local officials. Interested parties were invited to provide feedback for the proposed updates to the Consensus Guidelines through a public comment period and five webinars. A Request for Information was posted on ACL's website and the comment period ran from March until May 2019. Five webinars were held during April and May 2019 hosting approximately 190 participants, representing 39 states and the District of Columbia. Participants represented ten fields, with most participants representing the APS network (66 percent). The vast majority of these APS programs are administered and staffed by State and local government entities.
The goals of the outreach and engagement process were to hear from all interested entities, including State and local officials, the public, and professional fields about their experiences with APS. The engagement process ensured affected parties understood why and how ACL was leading the development of the Consensus Guidelines and provided an opportunity to give input into the process and content of the Consensus Guidelines. ACL will also review comments on the proposed rule from State and local officials and consider any additional concerns in developing a final rule.
Community members welcomed the Consensus Guidelines and were generally in support of the process by which they were created and updated as well as the substantive content, noting that they “help set the standard and support future planning and State legislative advocacy.”
We received comments that the Consensus Guidelines were “aspirational” and would be challenging to implement absent additional funding. We seriously considered these views in developing this proposed rule. We also completed a regulatory impact analysis to fully assess costs and benefits of the new requirements. We recognize that some of the new proposed regulatory provisions will create administrative and monetary burden in updating policies and procedures as well as potential changes to State law. However, much of this burden will be a one-time expense and States will have significant discretion to implement the proposed provisions in the manner best suited to State needs.
In FY 2021, Congress provided the first dedicated appropriation to implement the Elder Justice Act section 2042(b), 42 U.S.C. 1397m-1(b), formula grants to all States, the District of Columbia, and the Territories to enhance APS, totaling $188 million, and another $188 million in FY 2022. The recent Consolidated Appropriations Act of 2023 included an annual appropriation of $15 million to ACL to continue providing formula grants to APS programs under EJA section 2042(b), 42 U.S.C. 1397m-1(b). This funding is available to States for the implementation of the proposed regulation and meet the concerns commenters raised in 2019 around dedicated funding for APS systems. Additionally, the regulatory changes we propose have already been implemented by many States, and we believe the benefit of the proposed requirements will be significant.
ACL will fulfill its responsibilities under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to establish procedures for meaningful consultation and coordination with tribal officials in the development of Federal policies that have Tribal implications. ACL will solicit input from affected Federally recognized Tribes as we develop these updated regulations and will conduct a Tribal consultation meeting [exact date to be specified in NPRM when NPRM publication date is known].
Section 202 of the Unfunded Mandates Reform Act of 1995 requires that a covered agency prepare a budgetary impact Statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a covered agency must prepare a budgetary impact Statement, section 205 further requires that it select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with the statutory requirements. In addition, section 203 requires a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. We have determined that this rulemaking would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year.
Pursuant to Executive Order 13563 of January 18, 2011, and Executive Order 12866 of September 30, 1993, Executive Departments and Agencies are directed to use plain language in all proposed and final rules. ACL believes it has used plain language in drafting the proposed rule and would welcome any comment from the public about how to make this rulemaking easier to read and understand.
The proposed rule contains new information collection requirements under 5 CFR part 1320. These new burdens include: new State plans, new program performance data collection and reporting, a requirement that States generate, maintain, and retain written policies and procedures, a requirement that State APS systems disclose information to clients regarding their rights under State law, and a requirement that States generate, maintain, and retain information and data sharing agreements (while also disclosing data through such agreements).
As detailed in the regulatory impact analysis, we estimate the following total burden across all States and Territories for such requirements:
(1) State plans: $26,062.40 (renewed every three to five years);
(2) Program performance data collection: $339,480.00 (annually);
(3) Creation of written policies and procedures: $1,221,108.00 (one-time expense);
(4) Disclosure to potential clients their rights under State law: $195,378.21 ($9,947.84 in one-time expense and $185,430.37 annually);
(5) Creation and maintenance of data sharing agreements: $168,378.00 (one-time expense).
ACL will submit information to the OMB for review, as appropriate. The State plans, program performance data, written policies and procedures, disclosure to potential clients of their rights under State law, and the creation and maintenance of data sharing agreements will be submitted for approval as part of a generic clearance package for information collections related to ACL Administration on Aging programs. ACL intends to update applicable guidance as needed.
Adult Protective Services, Elder Rights, Grant programs to States, Older Adults.
For the reasons discussed in the preamble, ACL proposes to amend 45 CFR part 1324 as follows:
42 U.S.C. 3011(e)(3); 42 U.S.C. 1397m-1.
To be eligible for funding under 42 U.S.C. 1397m-1(b) State entities are required to adhere to all provisions contained herein.
As used in this part, the term—
(1) Receiving reports of adult abuse, neglect, exploitation, sexual abuse, and self-neglect;
(2) Investigating the reports described in paragraph (1) of this definition;
(3) Case planning, monitoring, evaluation, and other case work and services, and;
(4) Providing, arranging for, or facilitating the provision of medical, social services, economic, legal, housing, law enforcement, or other protective, emergency, or supportive services.
(1) Thorough documentation of all investigation and case management activities;
(2) Review and approval of case closure; and
(3) Conducting a case review process.
(1) Obtaining essential food, clothing, shelter, and medical care;
(2) Obtaining goods and services necessary to maintain physical health, mental health, or general safety, or;
(3) Managing one's own financial affairs.
(a) The State entity shall create and implement policies and procedures for APS systems to receive and respond to reports of adult maltreatment in a standardized fashion. Such policies and procedures, at a minimum, shall:
(1) Incorporate principles of person-directed services and planning and reliance on least restrictive alternatives, as well as other policies identified by the Assistant Secretary for Aging;
(2) Define the populations eligible for APS services;
(3) Define the settings, locations, and types of alleged perpetrator for each adult maltreatment type that are subject to APS investigations in the State;
(4) Define processes for receiving, screening, prioritizing, and referring cases based on risk and type of adult maltreatment consistent with § 1324.403, including:
(i) Creation of at least a two-tiered response system for initial contact with the alleged victim based on risk of death, irreparable harm, or significant loss of income, assets, or resources.
(A) For immediate risk, response should occur in person no later than twenty-four hours after receiving a report of adult maltreatment.
(B) For non-immediate risk, response should occur no more than seven calendar days after report of adult maltreatment is received.
(5) Define investigation and post-investigation procedures, as identified in § 1324.403.
(b) At first contact APS systems shall provide to potential APS clients an explanation of their rights, including:
(1) The right under State law to confidentiality of personal information;
(2) The right under State law to refuse to speak to APS;
(3) The right under State law to refuse APS services, and;
(4) Such other explanations of rights as determined by the Assistant Secretary for Aging.
(c) Information shall be provided in a format and language understandable by the individual, and in alternative formats as needed.
(d) The State entity shall establish policies and procedures for the staffing of APS systems that include:
(1) Staff training and on-going education, including training on conflicts of interest;
(2) Staff supervision, and;
(3) Staff to client ratios.
(e) The State entity shall establish such other program administration policies and procedures and provide other information to APS clients as established by the Assistant Secretary for Aging.
The State entity shall adopt standardized and systematic policies and procedures for APS investigation and post-investigation activities across and within the State including, at a minimum:
(a) Screening, triaging, and decision-making criteria or protocols to review and assign adult maltreatment reports for APS investigation, and to report to other authorities;
(b) Tools and/or decision-making processes for APS to review reports of adult maltreatment for any emergency needs of the adult and for immediate safety and risk factors affecting the adult or APS worker when responding to the report and;
(c) Practices during investigations to collect information and evidence to inform allegation disposition and service planning that will:
(1) Recognize acceptance of APS services is voluntary, except where limited by State law;
(2) Ensure safety of APS client and worker;
(3) Ensure the preservation of an adult's rights;
(4) Integrate principles of person-directedness and trauma-informed approaches;
(5) Maximize engagement with the APS client, and;
(6) Permit APS to seek emergency protective action only as appropriate and necessary as a measure of last resort to protect the life and wellbeing of the client from self-harm or harm from others.
(d) Methods to make determinations on allegations and record case findings, including:
(1) Ability for APS programs to consult with appropriate experts, other team members, and supervisors;
(2) Protocols for the standards of evidence APS should apply when making a determination on allegations.
(e) Provision of APS post-investigation services, as appropriate, that:
(1) Respect the autonomy and authority of clients to make their own life choices;
(2) Respect the client's views about safety, quality of life, and success;
(3) Hold perpetrators accountable for the adult maltreatment and for stopping the abusive behavior;
(4) Develop any service plan or referrals in consultation and agreement with the client;
(5) Engage community partners through referrals for services or purchase of services where services are not directly provided by APS, and;
(6) Monitor the status of client and services, and the impact of services.
(f) Case handling criteria that:
(1) Establish timeframes for on-going review of open cases;
(2) Establish length of time by which investigations should be completed, and determinations be made; and
(3) Documents, at a minimum:
(i) The APS interventions and services delivered;
(ii) Significant changes in client status;
(iii) Assessment of the outcome and efficacy of intervention and services;
(iv) Assessment of safety and risk at case closure; and
(v) The reason or decision to close the case.
The State entity shall establish standardized policies and procedures to avoid both actual and perceived conflicts of interest for APS. Such policies and procedures must include mechanisms to identify, remove, and remedy any existing conflicts of interest at organizational and individual levels, including to:
(a) Ensure that employees and agents engaged in any part of an APS investigation do not also provide direct services to, or oversee the direct provision of services, to the client;
(b) Ensure that employees and agents administering APS programs do not have a personal financial interest in an entity to which an APS program they refer clients to services recommended by the APS program;
(c) Ensure that no APS employee or agent, or member of an employee or agent's immediate family, is subject to conflict of interest;
(d) Prohibit dual relationships unless unavoidable and ensure appropriate safeguards are established should such relationships occur;
(e) Establish robust monitoring and oversight, to identify conflict of interest, and;
(f) Remove and remedy actual, perceived, or potential conflicts that arise.
(a) The State entity shall establish standardized policies and procedures for receiving reports of adult maltreatment 24 hours per day, 7 calendar days per week, using multiple methods of reporting to ensure accessibility.
(b) The State entity shall establish standardized policies and procedures for APS to accept reports of alleged adult maltreatment by mandatory reporters that:
(1) Shares information regarding a report to APS with the mandated reporter which shall include, at a minimum:
(i) Whether a case has been opened as a result of the report, and;
(ii) The disposition or finding of the allegation in the report.
(c) The State entity shall establish and adhere to standardized policies and procedures to maintain the confidentiality of reporters and information provided in a report.
(a) State entities shall establish policies and procedures, consistent with State law, to ensure coordination and to detect, prevent, address, and remedy adult maltreatment with other appropriate entities, including but not limited to:
(1) Other APS programs in the state, when authority over APS is divided between different jurisdictions or agencies;
(2) Other governmental agencies that investigate allegations of adult maltreatment, including, but not limited to, the State Medicaid agency, State nursing home licensing and certification, State department of health and licensing and certification, and tribal governments;
(3) Law enforcement agencies with jurisdiction to investigate suspected crimes related to adult maltreatment; State or local police agencies, tribal law enforcement, State Medicaid Fraud Control Units, and Federal law enforcement agencies;
(4) Organizations with authority to advocate on behalf of individuals who experienced the alleged adult maltreatment, such as the State Long-Term Care Ombudsman Program and/or investigate allegations of adult maltreatment such as the Protection and Advocacy Systems;
(5) Emergency management systems, and;
(6) Banking and financial institutions.
(b) Policies and procedures must, at a minimum:
(1) Address coordination and collaboration to detect, prevent, address, and remedy adult maltreatment during all stages of an adult maltreatment investigation conducted by APS or by other agencies and organizations with authority and jurisdiction to investigate reports of adult maltreatment;
(2) Address information sharing on the status and resolution of investigations between the APS system and other entities responsible in the state or other jurisdiction for investigation, to the extent permissible under applicable State law, and;
(3) Allow for the establishment of memoranda of understanding, where appropriate, to facilitate information exchanges, quality assurance activities, cross-training, development of formal multidisciplinary and cross agency adult maltreatment teams, co-location of staff within appropriate agencies, and other activities as determined by the State entity.
The State entity shall develop policies and procedures for APS for the collection and maintenance of data on investigations conducted by APS systems. They shall:
(a) Collect and report annually to ACL such APS system-wide data as required by the Assistant Secretary for Aging.
(b) Develop policies and procedures to ensure that the APS system retains individual case data obtained from APS investigations for a minimum of 5 years.
(a) State entities must develop and submit to the Director of the Office of Elder Justice and Adult Protective Services, the position designated by 42 U.S.C. 3011(e)(1), a State APS plan that meets the requirements set forth by the Deputy Assistant Secretary for Aging.
(b) The State plan shall be developed by the State entity in collaboration with APS programs.
(c) The State plan shall be updated at least every five years but as frequently as every three years.
(d) The State plan shall contain an assurance that all policies and procedures described herein will be developed and adhered to by the State APS system;
(e) State plans will be reviewed and approved by the Director of the Office of Elder Justice and Adult Protective Services. Any State dissatisfied with the final decision of the Director of the Office of Elder Justice and Adult Protective Services may appeal to the Deputy Assistant Secretary for Aging within 30 calendar days of the date of the Director of the Office of Elder Justice and Adult Protective Services' final decision and will be afforded the opportunity for a hearing. If the State is dissatisfied with the final decision of the Deputy Assistant Secretary for Aging, it may appeal to the Assistant Secretary for Aging within 30 calendar days of the date of the Deputy Assistant Secretary for Aging's decision.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearing, extension of comment period.
We, NMFS, have rescheduled a public hearing related to the proposed rule to designate critical habitat for the Rice's whale under the Endangered Species Act (ESA). We are also extending the public comment period for this proposed rule to October 6, 2023.
A virtual public hearing on the proposed rule will be held online on September 28, 2023, from 3 p.m. to 5 p.m. (Eastern Daylight Time).
The proposed rule to designate critical habitat for the Rice's whale under the ESA was published on July 24, 2023 (88 FR 47453), and provided for a public comment period to September 22, 2023. The comment period is now extended to October 6, 2023. Comments must be received by October 6, 2023. Comments received after this date may not be accepted.
The public hearing will be conducted as a virtual meeting, and any member of the public can join by internet or phone regardless of location. You may join the virtual meeting using a web browser, a mobile app on a phone (app installation required), or—to listen only—using just a phone call, as specified at this link:
You may submit comments verbally at the public hearing. You may also submit comments in writing by any of the following methods:
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•
Details on the virtual public hearing will be made available on our website at:
Grant Baysinger, NMFS Southeast Region, (727) 551-5790; or Lisa Manning, NMFS Office of Protected Resources, (301) 427-8466.
On July 24, 2023, NMFS published a proposed rule to designate critical habitat for the endangered Rice's whale (
The public hearing on September 28, 2023, will be conducted online as a virtual meeting, as specified in
Written comments may also be submitted during the public comment period as described under
People needing accommodations so that they may attend and participate at the public hearing should submit a request for reasonable accommodations as soon as possible, and no later than 7 business days prior to the hearing date, by contacting Grant Baysinger (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Federal Crop Insurance Corporation and Risk Management Agency, Department of Agriculture (USDA).
Notice of request for information; reopening of comment period.
The Federal Crop Insurance Corporation (FCIC) is reopening the comment period for 30 days to allow the public additional time to provide comments on the prevented planting provisions of the Common Crop Insurance Policy (CCIP), Basic Provisions published on May 23, 2023. Prevented planting is a feature of many crop insurance plans that provides a payment to cover certain pre-plant costs for a crop that was prevented from being planted due to an insurable cause of loss. FCIC is interested in public input on the following: additional prevented planting coverage based on harvest prices in situations when harvest prices are higher than established prices initially set by FCIC prior to planting; the requirement that acreage must have been planted to a crop, insured, and harvested, in at least 1 of the 4 most recent crop years; additional levels of prevented planting coverage; prevented planting coverage on contracted crops; and other general prevented planting questions.
The comment period for the Request for Information on Prevented Planting published on May 23, 2023, (at 88 FR 33081) is reopened. We will consider comments that we receive by October 12, 2023.
We invite you to submit comments in response to this notice. Send your comments through the method below:
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All comments will be posted without change and will be publicly available on
Francie Tolle; telephone (816) 926-7829; or email
FCIC is reopening the comment period for the Request for Information on Prevented Planting that was published on May 23, 2023, (at 88 FR 33081-33084). The comment period for the original notice closed on September 1, 2023. Based on requests received during the initial comment period, FCIC is reopening the comment period for an additional 30 days to allow the public to comment on the prevented planting provisions.
FCIC serves America's agricultural producers through effective, market-based risk management tools to strengthen the economic stability of agricultural producers and rural communities. FCIC is committed to increasing the availability and effectiveness of Federal crop insurance as a risk management tool. The Risk Management Agency (RMA) administers the FCIC regulations. The Approved Insurance Providers (AIP) sell and service Federal crop insurance policies in every state through a public-private partnership. FCIC reinsures the AIPs who share the risk associated with losses due to natural causes. FCIC's vision is to secure the future of agriculture by providing world class risk management tools to rural America.
Prevented planting coverage pays when a producer is unable to plant an insured crop due to an insured cause of loss. The payment is intended to assist in covering the normal costs associated with preparing the land up to the point of the seed going in the ground (pre-plant costs). These pre-plant costs can include seed, purchase of machinery, land rent, fertilizer, actions taken to ready the field, pesticide, labor, and repairs. Coverage is calculated as a percent of the producer's insurance guarantee (for example, 60 percent for soybeans).
FCIC is interested in all general prevented planting comments but requests public input from stakeholders on the following specific topics:
Revenue protection is a plan of insurance that provides protection against loss of revenue due to a production loss, price decline or increase, or a combination of both. Under the revenue protection plan of insurance, yield losses are compensated using the harvest-time price if it is higher than the price FCIC projected prior to planting. This compensates producers for the replacement value of lost bushels. This type of coverage was intended to help producers mitigate the risk of having to buy out of delivery contracts they are unable to fulfill due to production losses. Currently, the prevented planting calculation for revenue protection is based on the projected price and does not increase with the harvest price.
Revenue protection is the most popular insurance coverage in the crop insurance program. Under revenue protection, producers may elect a harvest price exclusion option which removes the protection against loss of revenue due to harvest price increase. Over 99 percent of revenue protection policies maintain harvest price coverage.
Following the volume of prevented planting payments for 2019 and 2020, a consistent suggestion emerged to allow prevented planting payments to increase with the harvest price, as is currently done for lost production. Allowing the harvest price for prevented planting payments would not impact most years as there needs to be both an increase in the harvest price and a prevented planting claim. Historical data suggests the additional coverage would increase prevented planting payments by approximately 6 percent on average for those policies with harvest price revenue coverage. Consequently, there would need to be a corresponding increase in premium for these policies.
The following are questions for input regarding prevented planting coverage based on the harvest price:
1. Should prevented planting payments be based on the harvest price or the price used to establish the insurance guarantee (projected price)?
2. What specific advantages or disadvantages do you see for allowing prevented planting coverage to be based on the harvest price?
3. When a producer is prevented from planting, what additional loss does a producer suffer when the harvest price increases and what should be considered to estimate the value of the loss?
4. Do you have any concerns about allowing prevented planting coverage to be based on the harvest price?
Beginning with the 2021 crop year, FCIC revised the prevented planting provisions to implement the “1 in 4” requirement nationwide. The “1 in 4” requirement states that acreage must have been planted to a crop, insured, and harvested (or if not harvested, adjusted for claim purposes due to an insurable cause of loss) in at least 1 out of the previous 4 crop years. This was meant to reduce prevented planting payments on land that is not generally available to plant, thus lowering insurance costs for all producers. Prior to the 2021 crop year, the “1 in 4” requirement was only applicable to the Prairie Pothole National Priority Area and required that the acreage must be physically available for planting.
In late 2022, FCIC announced the “1 in 4” requirement would be removed from western states that have experienced significant ongoing drought in recent years. The purpose of removing the requirement in these states was to give FCIC more time to better understand the unique needs of western producers and to also ensure all parties can provide input on the change.
The following are questions regarding the prevented planting “1 in 4” requirement:
1. Since the nationwide implementation of the “1 in 4” requirement, what situations have created challenges due to this requirement for producers that have been prevented from planting?
2. Do you have recommendations that would make the requirement more flexible for producers while protecting the integrity of the Federal Crop Insurance Program?
3. Are there specific situations that should exempt land from the “1 in 4” requirement and why?
4. Should the requirement be removed from specific areas and why?
5. A portion of the “1 in 4” requirement allows crops that have been adjusted for claims purposes due to an insured cause of loss to be considered harvested. However, this allowance excludes claims adjusted due to the following causes of loss: flood, excess moisture, and drought. Should the requirement exclude specific causes of loss adjusted for claims purposes and why?
6. Are you aware of additional program integrity measures or safeguards that should be considered beyond what is in place today?
7. Do you believe there should be a limit on the number of consecutive years that a producer is eligible to receive a prevented planting payment on the same acreage? If so, what do you believe the limit should be?
Insureds with additional coverage, a coverage level greater than catastrophic risk protection, may elect an additional level of prevented planting coverage, commonly referred to as buy-up coverage, on or before the sales closing date. The additional coverage level allows producers to better tailor their coverage to match their actual prevented planting costs. The additional level of prevented planting coverage also requires the producer pay additional premium. Prior to the 2018 crop year, two additional prevented planting coverage levels were available, 5 percent (+5) and 10 percent (+10). FCIC removed the +10 additional coverage option beginning in the 2018 crop year. Removing the +10 additional coverage option maintained the balance between providing coverage to producers and the cost to taxpayers. While FCIC has removed the +10 additional coverage option, the +5 additional coverage option is still available.
RMA is considering reinstating the +10 additional coverage option. The following are questions regarding the +10 additional coverage option:
1. What specific advantages or disadvantages do you see regarding reinstating the +10 additional coverage option?
2. If you believe reinstating the +10 additional coverage option will provide needed protection for producers, why is it needed in addition to the current +5 additional coverage option?
3. Do you have any concerns about reinstating the +10 additional coverage option?
For several crops, crop types, or specific practices grown under a contract with a processor, a contract price option allows a producer to use their contract price to determine the insurance guarantee. For example, the Contract Price Addendum allows organic certified and transitional producers of many crops to use the price contained in their organic contract for insurance. Currently, when the contract price option is elected, the prevented planting coverage is based on the contract price. However, it has been suggested that prevented planting costs may be the same regardless of whether the producer had a contract. FCIC is requesting input on whether the prevented planting guarantee should use the RMA established price (price election or projected price), regardless of if the contract price option has been elected.
The price election is the amount contained in the actuarial documents that is the value per pound, bushel, ton, carton, or other applicable unit of measure for the purposes of determining premium and indemnity under the policy. The projected price is the price for each crop determined in accordance with the Commodity Exchange Price Provisions.
The following are questions regarding prevented planting coverage on contracted crops that can elect the contract price option:
1. Are pre-planting costs higher for contracted crops? If so, explain.
2. Should prevented planting payments be based on the contract price or RMA's established price (price election or projected price)? Please explain why.
3. If a contract price is used for prevented planting guarantee purposes, should there be any limitations as to when the contract is secured, specifically when a cause of loss is present that may prevent planting?
1. Do you believe all producers will support paying higher premiums to cover the costs of expanded prevented planting benefits?
2. Are pre-planting costs the same for all causes of loss? For example: Does a multi-year drought leading to failure of irrigation supply have the same pre-planting costs as unexpected flooding prior to planting?
Food and Nutrition Service (FNS), USDA.
Notice.
Cooperative agreement recipients of the United States Department of Agriculture's (USDA) Food and Nutrition Service (FNS) plan to collect additional information from sub-grantee applicants associated with the Healthy Meals Incentive Initiative (HMI 2) related to School Food System Transformation. FNS already has approval from the Office of Management and Budget (OMB) for the collection of information associated with the original cooperative agreement under the Uniform Grant Application for Non-Entitlement Discretionary Grants, as approved under OMB Control Number: 0584-0512 (Expiration Date: July 31, 2025). This notice solicits public comment on the additional information proposed for collection.
To be assured of consideration, written comments must be submitted or postmarked on or before October 12, 2023.
Comments must be submitted through one of the following methods:
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Bethany Showell of Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, Alexandria, Virginia 22314, 703-457-6783, or email
Four cooperative agreement recipients of the United States Department of Agriculture's (USDA) Food and Nutrition Service (FNS) will be soliciting requests for funding applications in the Fall of 2023 for sub-grantee proposals associated with the Healthy Meals Incentives Initiative (HMI 2) related to School Food System Transformation.
The Healthy Meals Incentives Initiative (HMI) is already addressed under OMB Approval No. 0584-0512 as the Child Nutrition Healthy Meals Incentive. FNS submitted a non-substantive change request to the Office of Management and Budget (OMB) to provide coverage under the Paperwork Reduction Act (PRA) for the request for proposals from sub-grantees. Out of an abundance of caution and to ensure the public is fully aware upfront of the proposed sub-grantee submittals, FNS is also simultaneously issuing this 30-day
Four FNS cooperative agreement recipients will ask for sub-grantee applications beyond the uniform grant application package discussed in OMB control 0584-0512. The sub-grantee proposals to be submitted will, in general, address projects that support the development of innovative solutions for K-12 food service transformation. The projects will support collaborative partnerships between non-governmental entities, school food authorities, and the school food industry to encourage new approaches for the improvement of the K-12 food system and to develop creative solutions to provide nutritious foods for school meals. The projects will balance a regional and national focus.
The burden hours associated with the request for applications from sub-grantees and the submittal of proposals, which we're referring to as HMI 2, are delineated in this
There are burden hours associated with the cooperative agreement recipients' future drafting and posting of a request for applications from sub-grantees on each cooperator's website and associated communication efforts. The estimate is 10 hours for each of the four cooperators, for a total of 40 hours. These 40 hours would be taken from the existing competitive pre-award burden hours of approximately 4,823 already set aside for miscellaneous grants not explicitly identified in OMB approval number 0584-0512.
There are burden hours associated with the potential for up to 250 sub-grantee applicants to submit one proposal each. The associated burden would be 250 times 4 hours equals 1,000 hours. These 1,000 hours would be taken from the existing competitive pre-award total of 4,823 burden hours set aside for miscellaneous competitive grants in OMB approval number 0584-0512.
There are burden hours for sub-grantees' submittal of a progress report; there is a potential for up to 150 sub-grantees to submit a progress report which is equivalent to up to 150 sub-grantees times 3 hours or 450 reporting hours. These 450 hours would be taken from the post-award total of 770 hours set aside for miscellaneous competitive grants in OMB approval number 0584-0512.
FNS' cooperative agreement recipients who will be requesting project proposals from sub-grantees will utilize comments to be submitted to adjust the collection of additional information as necessary.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of the currently approved collection for the applications, periodic reporting, and notices burden calculations for the Supplemental Nutrition Assistance Program (SNAP).
Written comments must be received on or before November 13, 2023.
Comments may be sent to: Certification Policy Branch, Program Development Division Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, 5th Floor, Alexandria, VA 22314. Comments may also be submitted via fax to the attention of the Certification Policy Branch at 703-305-2022 or via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Muhammad Kara by telephone at 703-305-2022.
Additionally, State agencies are limited in the use or disclosure of information obtained from SNAP application forms or contained in case files of participating SNAP households to certain persons, specifically those directly connected with: the administration of SNAP; the administration of other Federal or Federally assisted means-tested programs; the verification of immigration status of aliens; the Office of the Comptroller General of the U.S. for audit and examination authorized by any other provisions of law; local, State, or Federal law enforcement for the purpose of investigating an alleged violation of the Act or SNAP regulations; local, State, or Federal law enforcement for the purpose of investigating if a household member is a fleeing felon or a parole violator; and agencies of the Federal Government for the purposes of collecting the amount of an over issuance from Federal pay.
The Federal procedures for implementing the application and certification procedures, as well as third-party disclosure requests, in the Act are in Parts 271, 272, and 273 of the Title 7 of the Code of Federal Regulations (CFR). Part 271 contains general information and definitions, Part 272 contains requirements for participating State agencies, and Part 273 contains procedures for the certification of eligible households.
In the process of renewing this information collection, FNS modified the burden of some of its reporting and recordkeeping requirements to reflect current SNAP caseload levels and more recent or accurate data sources, where possible. These adjustments represent an increase of 14,957,613.94 total annual burden hours. In addition, FNS added burden hours to reflect program changes related to two final rules, described in more detail below. The burden associated with these rules represents an increase of 827,239.41 total annual burden hours. Together, these updates represent an increase of 85,968,762.93 total annual responses and 15,784,853.36 total annual burden hours for 53 State agencies, 2,724 Local agencies, and 18,802,000 Individuals/Households compared to the last to the burden in the currently approved information collection.
On January 5, 2021, FNS published the final rule, “Employment and Training Opportunities in the Supplemental Nutrition Assistance Program” (84 FR 358). This rule requires State agencies to consult with their State workforce development boards on the design of their employment and training (E&T) programs and to document in their E&T State plans the extent to which their E&T programs will be carried out in coordination with activities under title I of the Workforce Innovation and Opportunity Act (WIOA). The final rule also made changes to E&T components including: replacing job search with supervised job search as a component; eliminating job finding clubs; replacing job skills assessments with employability assessments; adding apprenticeships and subsidized employment as allowable activities; requiring a 30-day minimum for provision of job retention services; and allowing those activities from the E&T pilots authorized under the Agricultural Act of 2014 (Pub. L. 113-79) that have had the most demonstrable impact on the ability of participants to find and retain employment that leads to increased
1. Review and modify list of available E&T Services (7 CFR 273.14(b)(5)): Under this requirement, 53 State agencies will each review and modify one list of available E&T opportunities annually. Thus, the information collection activities associated with this requirement results in 53 responses for State agencies. FNS estimates that it will take State agencies approximately 24 hours per response, resulting in 1,272 burden hours. This program change to the burden reflects an increase of 53 total annual responses and 1,272 total annual burden hours for State agencies.
2. Provide list of available Employment and Training (E&T) services (7 CFR 273.14(b)(5)): Under this requirement, 53 State agencies will each send, on average, 103,698.11 lists advising SNAP households not otherwise exempt from the general work requirements in writing of available employment and training (E&T) opportunities at the time of recertification if these individuals are members of households that contain at least one adult, with no elderly or disabled individuals, and with no earned income at their last certification or required report. Thus, the information collection activities associated with this requirement result in 5,496,000 responses for State agencies. FNS estimates that it takes States approximately one minute (0.0200 hours) per response, resulting in 109,920 burden hours. This program change to the burden reflects an increase of 5,496,000 total annual responses and 109,920 total annual burden hours for State agencies. FNS also estimates that 5,496,000 individuals will each receive and read one list of available E&T services. Thus, the information collection activities associated with this requirement results in 5,496,000 responses for individuals. FNS estimates that it takes individuals approximately one minute (0.0200 hours) per response, resulting in 109,920 burden hours. This adjustment to the burden reflects an increase of 5,496,000 total annual responses and 109,920 total annual burden hours for households. FNS notes that while the household burden associated with this requirement is outlined in the final rule published January 5, 2021, FNS has not previously delineated the State agency burden associated with this requirement. In this information collection renewal, FNS chose to delineate the State agency burden associated with this requirement to reflect the process of State agencies sending the list of available E&T services and associated burden more accurately.
3. Inform Able-Bodied Adults without Dependents (ABAWD) of the ABAWD work requirement (7 CFR 273.7(c)(1)(ii) & (iii) & 273.24(b)(8)): Under this requirement, 53 State agencies will each send, on average, 50,943.40 notices informing able-bodied adults without dependents (ABAWD) about the ABAWD work requirement and time limit. Thus, the information collection activities associated with this requirement result in 2,700,000 responses for State agencies. FNS estimates that it will take each State agency approximately 5 minutes (0.0830 hours) per response, resulting in 224,100 burden hours. This program change to the burden reflects an increase of 2,700,000 total annual responses and 224,100 total annual burden hours for State agencies. FNS also estimates that 2,700,000 individuals subject to the ABAWD work requirement and time limit will each read one notice. Thus, the information collection activities associated with this requirement results in 2,700,000 responses for households. FNS estimates that it takes households approximately 5 minutes (0.0830 hours) per response, resulting in 224,100 burden hours. This program change to the burden reflects an increase of 2,700,000 total annual responses and 224,100 total annual burden hours for households.
4. Inform Employment and Training (E&T) Participants of Provider Determination (7 CFR 273.7(c)(18)(i)): Under this requirement, 53 State agencies will each send, on average, 867.92 notifications to E&T participants who receive a provider determination by an E&T provider. Thus, the information collection activities associated with this requirement result in 46,000 responses for State agencies. FNS estimates it will take State agencies approximately 5 minutes (0.0830 hours) per response, resulting in 3,818 burden hours. This program change to the burden reflects an increase of 46,000 total responses and 3,818 burden hours for State agencies. FNS also estimates that 46,000 E&T participants will each read one provider determination. Thus, the information collection activities associated with this requirement result in 46,000 responses for households. FNS estimates that it takes households approximately 5 minutes (0.0830 hours) per response, resulting in 3,818 burden hours. This adjustment to the burden reflects an increase of 46,000 total annual responses and 3,818 total annual burden hours for households.
On October 3, 2022, FNS published the interim final rule, “Supplemental Nutrition Assistance Program: Requirement for Interstate Data Matching to Prevent Duplicate Issuances” (87 FR 59633). This rule requires State agencies to provide information to the National Agency Clearinghouse (NAC) regarding individuals receiving SNAP benefits in their States to ensure they are not already receiving benefits in another State. It also requires State agencies to take appropriate action with respect to each indication from the NAC that an individual may already be receiving SNAP benefits from another State agency. FNS is merging most of the burden associated with this rule with this collection by updating existing verification and noticing burden estimates for both State agencies and individuals/households. The estimates below are solely related to the program changes related to the rule, but FNS notes that it also made adjustments to the following line items related to SNAP caseload levels and participation. These adjustments are delineated further in the burden table, but for purposes of this notice, FNS is focusing on the program changes specifically. The burden associated with this program change is listed below:
1. Verification: Questionable Information (7 CFR 273.2(f)(1)&(2)): Under this requirement, 53 State agencies will each send, on average, 4,611.57 notifications to households who have questionable and/or unclear information following a positive NAC match. Thus, the information collection activities associated with this requirement result in 244,413.10 responses for State agencies. FNS estimates that it takes States approximately 6 minutes (0.1002 hours) per response, resulting in 24,490.19 burden hours. This program change to the burden reflects an increase of 244,413.10 total annual responses and 24,490.19 total annual burden hours for States agencies. FNS also estimates that 244,413.10 households will each read one notification. Thus, the information collection activities associated with this requirement result in 244,413.10 responses for households. FNS estimates that it takes households approximately 4 minute (0.0668 hours) per response, resulting in 16,326.79 burden hours. This program change to the burden reflects an increase of
2. Notice of Adverse Action (7 CFR 273.13(a)): Under this requirement, 53 State agencies will be required to issue a combined notice for a match on an individual during the certification period prior to a change in SNAP benefit allotment to a participant as a result of a match found through the NAC. Thus, the information collection activities associated with this requirement results in 409,709.52 responses for State agencies. FNS estimates that it takes States approximately 3 minutes (0.0501 hours) per response, resulting in 20,526.45 annual burden hours. This program change to the burden reflects an increase of 409,709.52 total annual responses and 20,526.45 total annual burden hours for States agencies. FNS also estimates that 409,709.52 households will each receive a combined notice of match results and notice of adverse action as a result of a positive NAC match received during the certification period. Thus, the information collection activities associated with this requirement result in 409,709.52 responses for households. FNS estimates that it takes households approximately 5 minutes (0.0835 hours) per response, resulting in 34,210.75 burden hours. This program change to the burden reflects an increase of 409,709.52 total annual responses and 34,210.75 total annual burden hours for households.
3. Notice of Match Results (7 CFR 237.12(c)(3)(iii)): Under this requirement, 53 State agencies will be required to issue a notice of match results, as necessary, to a household following a positive NAC match on an applicant, recertifying individual, or a newly added household member. Thus, the information collection activities associated with this requirement results in 409,709.52 responses for State agencies. FNS estimates that it takes States approximately 3 minutes (0.0501 hours) per response, resulting in 20,526.45 annual burden hours. This program change reflects an increase of 409,709.52 total annual responses and 20,526.45 total annual burden hours for States agencies. FNS also estimates that 409,709.52 households will each receive a notice of match results. Thus, the information collection activities associated with this requirement results in 409,709.52 responses for households. FNS estimates that it takes households approximately 5 minutes (0.0835 hours) per response, resulting in 34,210.75 burden hours. This program change to the burden reflects an increase of 409,709.52 total annual responses and 34,210.75 total annual burden hours for households.
Inclusive of all burden adjustments and program changes made as part of this renewal, FNS is requesting an overall burden of 1,023,763,956 total annual responses and 139,973,104 total annual burden hours. These burden estimates include 866,533,635 total annual responses and 135,372,295 total annual burden hours for reporting by State agencies and Individuals/Households. The estimates also include 157,228,413 total annual responses and 4,599,855 total annual burden hours for recordkeeping by Local agencies. Finally, the estimates include 1,908 total annual responses and 954 total annual burden hours for third- party disclosures by State agencies.
The currently approved burden for this information collection is 937,795,193 total annual responses and 124,188,251 total annual burden hours. Thus, when compared to the burden in the currently approved information collection, the adjustments and program changes in this renewal represent an increase of 15,784,853.36, rounded to 15,784,853, total annual responses and 1,023,763,955.93, rounded to 1,023,763,956, total annual burden hours.
A breakdown of the burden estimates per type of affected public is provided below.
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Agricultural Surveys Program. Revision to burden hours will be needed due to changes in the size of the target population, sampling design, and/or questionnaire length.
Comments on this notice must be received by November 13, 2023 to be assured of consideration.
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•
•
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Kevin L. Barnes, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from Richard Hopper, NASS—OMB Clearance Officer, at (202) 720-2206 or at
Revisions to burden are needed due to changes in the size of the target population, sample design, and minor changes in questionnaire design.
These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985, as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995 Public Law 104-13 (44 U.S.C. 3501,
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the Rural Business-Cooperative Service, Rural Housing Service, and the Rural Utilities Service, agencies of the Rural Development mission area within the U.S. Department of Agriculture (USDA), hereinafter collectively referred to as the Agency to request approval for a new information collection in support of compliance with applicable acts for planning and performing construction and other development work.
Comments on this notice must be received by November 13, 2023.
Comments may be submitted by the following method:
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Lynn Gilbert, Rural Development Innovation Center—Regulations Management Division, USDA, 1400 Independence Avenue SW, South Building, Washington, DC 20250-1522. Telephone: (202) 690-2682. Email
The Office of Management and Budget's (OMB) regulation (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that Rural Development is submitting to OMB for a new collection.
RD will be collecting information to assure that those participating in this program remain eligible to proceed with loan closing and to ensure that loans are made with Federal funds are legally secured. The respondents are individuals or households, businesses and non-profit institutions. The information required is used by the USDA personnel to verify that the required lien position has been obtained. The information is collected at the field office responsible for processing a loan application through loan closing. The information is also used to ensure the program is administered in manner consistent with legislative and administrative requirements. If not collected, the Agency would be unable to determine if the loan is adequately and legally secure. RD continually strives to ensure that information collection burden is kept to a minimum.
Information for the RD forms and their usage in this collection package are included in this supporting statement.
Comments from interested parties 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.
United States Chemical Safety and Hazard Investigation Board (CSB).
30-Day notice of submission of information collection request (ICR) approval and request for comments.
The proposed information collection request (ICR) renewal described below will be submitted to the Office of Management and Budget (OMB) for review and approval, as required by the Paperwork Reduction Act of 1995. The Chemical Safety Board (CSB) is soliciting public comments on this proposed collection renewal. The purpose of this notice is to allow for an additional 30 days of public comment.
Comments should be sent no later than 5 p.m. EDT on Friday, October 13, 2023.
Interested persons are invited to submit comments regarding this proposal. When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions within 30 days of publication of this notice: OMB, Office of Information and Regulatory Affairs, Attention: Chemical Safety Board Desk Officer, Fax Number: (202) 395-5806
Additionally, written comments and recommendations for the proposed information collection can be sent within 30 days of publication of this notice to
Requests for information, including copies of the information collection proposed and supporting documentation should be directed to: Tamara Qureshi, Assistant General Counsel, U.S. Chemical Safety and Hazard Investigation Board, at
Tamara Qureshi, Assistant General Counsel, U.S. Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW, Suite 910, Washington, DC 20006,
In August 2000, the CSB initiated a review of reactive hazards nationwide. The purpose of the investigation was to develop recommendations to reduce the number and severity of such incidents. The CSB published Hazard Investigation: Improving Reactive Hazard Management on September 17, 2002. The CSB issued a total of 24 recommendations to 15 organizations. Only two recommendations remain.
This information collection request will assist the CSB in updating its 2002 study, “Hazard Investigation: Improving Reactive Hazard Management.” On behalf of the CSB, the Federal Research Division (FRD) within the Library of Congress is conducting the study to reflect the current research, data, and company safety policies concerning reactive chemical incidents.
For this study, FRD on behalf of CSB will collect survey data from 15 randomly selected small, medium, and large companies that use reactive chemicals. FRD will also conduct interviews with nine stakeholders, who may include industry representatives, regulatory agencies, professional safety organizations, trade associations, trade unions, and/or public advocacy groups.
Researchers will use quantitative and qualitative mixed methods to analyze the collected industry information. The analysis will identify trends and present insights which will enhance the CSB's capacity to respond to future reactive chemical incidents and to inform industry stakeholders of the best practices in process safety protocols.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. As of the time of this notice, the CSB has not received any comments. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Census Bureau, Department of Commerce.
Notice, corrections.
On December 29, 2022, the Bureau of the Census (Census Bureau) published a
This notice is effective upon publication.
Rikki Wortham, Geography Division, U.S. Census Bureau, via email at
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Complete Errata and a list of 2020 Census Urban Area applications and products affected by these corrections can be found in the “2020 Census Urban Area Errata” on the Census Urban and Rural page:
Robert L. Santos, Director, Census Bureau, approved the publication of this notice in the
On January 12, 2022, in the U.S. District Court for the Southern District of Florida, Peter Sotis (“Sotis”) was convicted of violating 18 U.S.C. 371, the International Emergency Economic Powers Act (50 U.S.C. 1701,
Pursuant to section 1760(e) of the Export Control Reform Act (“ECRA”),
BIS received notice of Sotis conviction for violating 18 U.S.C. 371, IEEPA and 18 U.S.C. 554. As provided
Based upon my review of the record and consultations with BIS's Office of Exporter Services, including its Director, and the facts available to BIS, I have decided to deny Sotis's export privileges under the Regulations for a period of 10 years from the date of Sotis's conviction. The Office of Exporter Services has also decided to revoke any BIS-issued licenses in which Sotis had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export, reexport, or transfer (in-country) to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On November 3, 2022, in the U.S. District Court for the Western District of Texas, Ruben Beltran Pedroza (“Pedroza”) was convicted of violating 18 U.S.C. 554(a). Specifically, Pedroza was convicted of smuggling a Smith & Wesson M&P Shield .40 pistol, SN: HDY2067 from the United States to Mexico. As a result of his conviction, the Court sentenced Pedroza to 34 months of confinement, with credit for time served, three years of supervised release and a $100 assessment.
Pursuant to section 1760(e) of the Export Control Reform Act (“ECRA”),
BIS received notice of Pedroza's conviction for violating 18 U.S.C. 554. As provided in section 766.25 of the Export Administration Regulations (“EAR” or the “Regulations”), BIS provided notice and opportunity for Pedroza to make a written submission to BIS. 15 CFR 766.25.
Based upon my review of the record and consultations with BIS's Office of Exporter Services, including its Director, and the facts available to BIS, I have decided to deny Pedroza's export privileges under the Regulations for a period of five years from the date of Pedroza's conviction. The Office of Exporter Services has also decided to revoke any BIS-issued licenses in which Pedroza had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export, reexport, or transfer (in-country) to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On October 25, 2022, in the U.S. District Court for the Western District of Texas, Jonathan Santiago (“Santiago”) was convicted of violating 18 U.S.C. 554(a). Specifically, Santiago was convicted of smuggling a Smith & Wesson M&P Shield .40 pistol, SN: HDY2067 from the United States to Mexico. As a result of his conviction, the Court sentenced Santiago to 42 months of confinement, with credit for time served and three years of supervised release.
Pursuant to section 1760(e) of the Export Control Reform Act (“ECRA”),
BIS received notice of Santiago's conviction for violating 18 U.S.C. 554. As provided in section 766.25 of the Export Administration Regulations (“EAR” or the “Regulations”), BIS provided notice and opportunity for Santiago to make a written submission to BIS. 15 CFR 766.25.
Based upon my review of the record and consultations with BIS's Office of Exporter Services, including its Director, and the facts available to BIS, I have decided to deny Santiago's export privileges under the Regulations for a period of seven years from the date of Santiago's conviction. The Office of Exporter Services has also decided to revoke any BIS-issued licenses in which Santiago had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export, reexport, or transfer (in-country) to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On November 16, 2022, in the U.S. District Court for the Southern District of Florida, Nicholas Ayala (“Ayala”) was convicted of violating 18 U.S.C. 371 and 18 U.S.C. 554. Specifically, Ayala was convicted of conspiring to smuggle various handguns and firearms from the United States to Ecuador. As a result of his conviction, the Court sentenced him to 36 months in prison, three years of supervised release, and a $400 special assessment.
Pursuant to section 1760(e) of the Export Control Reform Act (“ECRA”),
BIS received notice of Ayala's conviction for violating 18 U.S.C. 371 and 18 U.S.C. 554. As provided in section 766.25 of the Export Administration Regulations (“EAR” or the “Regulations”), BIS provided notice and opportunity for Ayala to make a written submission to BIS. 15 CFR 766.25.
Based upon my review of the record and consultations with BIS's Office of Exporter Services, including its Director, and the facts available to BIS, I have decided to deny Ayala's export privileges under the Regulations for a period of 10 years from the date of Ayala's conviction. The Office of Exporter Services has also decided to revoke any BIS-issued licenses in which Ayala had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export, reexport, or transfer (in-country) to or on behalf of the Denied
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that sales of silicon metal from Malaysia were not sold in the United States at less than normal value (NV) during the period of review (POR), February 1, 2021, through July 31, 2022. Interested parties are invited to comment on these preliminary results.
Applicable September 12, 2023.
Rachel Jennings, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1110.
On August 19, 2021, Commerce published in the
On April 21, 2023, Commerce extended the time limit for completing the preliminary results of this review until August 31, 2023.
The merchandise covered by the scope of this
Commerce is conducting this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying these preliminary results,
We preliminarily determine that the following estimated weighted-average dumping margin exists during the period February 1, 2021, through July 31, 2022:
As provided in section 782(i)(3) of the Act, Commerce intends to verify the information relied upon here in advance of the final results of this review.
Commerce intends to disclose to interested parties the calculations performed for these preliminary results within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this administrative review. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs. Parties who submit case briefs or rebuttal briefs in this proceeding 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, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. Hearing requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. An electronically filed hearing request must be received successfully in its entirety by Commerce's electronic records system, ACCESS by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in the case briefs, no later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act, unless otherwise extended.
Upon issuance of the final results of this administrative review, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
In accordance with Commerce's “automatic assessment” practice, for entries of subject merchandise during the POR produced by PMB Silicon for which PMB Silicon did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate those entries at the all-others rate established in the original less-than-fair-value (LTFV) investigation (
Commerce intends to issue instructions to CBP no earlier than 35 days after the publication date of the final results of this review in the
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the finals results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for PMB Silicon in the final results of review will be equal to the weighted-average dumping margin established in the final results of this administrative review except if the rate is less than 0.50 percent and, therefore,
Unless otherwise extended, Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1).
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
Commerce is issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that Yinfeng Imp & Exp Trading Co., Ltd./Fujian Province Youxi City Mangrove Wood Machining Co., Ltd. (Yinfeng/Mangrove), Fujian Jinquan Trade Co., Ltd./Fujian Province Youxi County Baiyuan Wood Machining Co., Ltd. (Jinquan/Baiyuan) and 29 non-individually examined exporters of wood mouldings and millworks products (WMMP) from the People's Republic of China (China) did not sell subject merchandise to the United States at prices below normal value (NV) during the period of review (POR), August 12, 2020, through January 31, 2022. Commerce further determines that Fujian Shunchang Shengsheng Wood Industry Limited Company (Shunchang Shengsheng), Xiamen Jinxi Building Material Co., Ltd. (Xiamen Jinxi), and Zhangzhou Green Wood Industry and Trade Co., Ltd. (Greenwood) made no shipments of subject merchandise during the POR and that Gaomi Hongtai Home Furniture Co., Ltd. has not established eligibility for a separate rate and, therefore, is part of the China-wide entity. Additionally, we are rescinding this administrative review with respect to three companies that are not eligible for review because they either had no reviewable entries during the POR or are U.S. resellers.
Applicable September 12, 2023.
Samantha Kinney or Brian Smith, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2285 or (202) 482-1766, respectively.
On March 7, 2023, Commerce published the
The merchandise covered by the
All issues raised by interested parties in briefs are addressed in the Issues and Decision Memorandum. A list of the issues addressed in the Issues and Decision Memorandum is provided in Appendix I to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our verification findings, review of the record, and comments received from interested parties regarding our
In the
In the
In the
In our
The statute and our regulations do not address the establishment of a rate to be assigned to respondents not selected for individual examination when we limit our examination of companies subject to the administrative review pursuant to section 777A(c)(2)(B) of the Tariff Act of 1930, as amended (the Act). Generally, we look to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents not individually examined in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted average of the estimated weighted average dumping margins established for exporters and producers individually investigated, excluding any zero and
In the
For companies subject to this review which established their eligibility for a separate rate, Commerce determines that the following weighted-average dumping margins exist for the period August 12, 2020, through January 31, 2022:
We intend to disclose the calculations performed to parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b), Commerce has determined, and U.S Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with these final results of review. Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of these final results. If a timely summons is filed at the U.S. Court of International Trade, the assessment instructions will direct CBP not to liquidate relevant entries until the time for parties to file a request for a statutory injunction has expired (
For Yinfeng/Mangrove, Jinquan/Baiyuan and the other respondents which were not selected for individual examination and which qualified for a separate rate, we will instruct CBP to liquidate the appropriate entries without regard to antidumping duties.
For the company identified as part of the China-wide entity, Gaomi Hontai, we will instruct CBP to apply the China-wide rate (
For Shunchang Shengsheng, Xiamen Jinxi, and Green Wood, which Commerce determined had no shipments of the subject merchandise during the POR, any suspended entries that entered under that exporter's case number (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) for Jinquan/Baiyuan, Yinfeng/Mangrove, and the other companies which were found eligible for a separate rate, the cash deposit rate will be zero; (2) for previously investigated or reviewed Chinese and non-Chinese exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recently completed segment of this proceeding in which they were reviewed; (3) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be equal to the weighted-average dumping margin for the China-wide entity (
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties has occurred and the subsequent assessment of double antidumping duties, and/or increase in the amount of antidumping duties by the amount of the countervailing duties.
This notice also serves as a reminder to parties subject to an APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results of administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) is postponing the deadline for issuing the final determination in the less-than-fair-value (LTFV) investigation of tin mill products from the People's Republic of China (China) until January 4, 2024, and is extending the provisional measures from a four-month period to a six-month period.
Applicable September 12, 2023.
Samuel Frost, AD/CVD Operations V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-8180.
On February 14, 2023, Commerce initiated an LTFV investigation of imports of tin mill products from China.
Section 735(a)(2) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(b)(2) provide that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters or producers who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners.
On August 31, 2023, Shougang Jingtang United Iron & Steel Co., Ltd. (Shougang Jingtang), an exporter and producer accounting for a significant proportion of exports of subject merchandise, requested that Commerce postpone the deadline for final determination and extend the application of the provisional measures from a four-month period to a period of not more than six months.
This notice is issued and published pursuant to section 735(a)(2) of the Act and 19 CFR 351.210(g).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) order on certain steel nails (steel nails) from the United Arab Emirates (UAE) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United
Applicable August 31, 2023.
Kelsie Hohenberger, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2517.
On May 10, 2012, Commerce published in the
On August 31, 2023, the ITC published its determination, pursuant to sections 751(c) and 752(a) of the Act, that revocation of the
The merchandise covered by the
Certain steel nails subject to the
Excluded from the scope of the
Also excluded from the scope of the
• non-collated (
• non-collated (
• wire collated steel nails, in coils, having a galvanized finish, a smooth, barbed or ringed shank, an actual length of 0.500″ to 1.75″, inclusive; an actual shank diameter of 0.116″ to 0.166″, inclusive; and an actual head diameter of 0.3375″ to 0.500″, inclusive;
• non-collated (
• corrugated nails. A corrugated nail is made of a small strip of corrugated steel with sharp points on one side;
• thumb tacks, which are currently classified under HTSUS 7317.00.10.00;
• fasteners suitable for use in powder-actuated hand tools, not threaded and threaded, which are currently classified under HTSUS 7317.00.20 and 7317.00.30;
• certain steel nails that are equal to or less than 0.0720 inches in shank diameter, round or rectangular in cross section, between 0.375 inches and 2.5 inches in length, and that are collated with adhesive or polyester film tape backed with a heat seal adhesive; and
• fasteners having a case hardness greater than or equal to 50 HRC, a carbon content greater than or equal to 0.5 percent, a round head, a secondary reduced-diameter raised head section, a centered shank, and a smooth symmetrical point, suitable for use in gas-actuated hand tools.
While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the
As a result of the determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return, destruction, or conversion to judicial protection order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply is a violation of the APO which may be subject to sanctions.
This five-year sunset review and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published in accordance with section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the countervailing duty (CVD) order on carbon and alloy steel wire rod (wire rod) from Italy would likely lead to the continuation or recurrence of countervailable subsidies, and material injury to an industry in the United States, Commerce is publishing a notice of continuation of this CVD order.
Applicable August 2, 2023.
Scarlet K. Jaldin or James R. Hepburn, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4275, or (202) 482-1882, respectively.
On May 21, 2018, Commerce published in the
On August 2, 2023, the ITC published its determination, pursuant to sections 751(c) and 752(a) of the Act, that revocation of the
The scope of the
The products under the
As a result of the determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice also serves as a final reminder to parties subject to an APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This five-year sunset review and this notice are in accordance with sections 751(c) and 751(d)(2) of the Act and published in accordance with section 777(i) of the Act, and 19 CFR 351.218(f)(4).
National Institute of Standards and Technology, Department of Commerce.
Notice of research consortium.
The National Institute of Standards and Technology (NIST), an agency of the United States Department of Commerce, in support of efforts to establish the measurement science required for development of the standards and industry for Additive Construction by Extrusion (ACE), is establishing the Additive Construction by Extrusion (ACE) Consortium (“Consortium”). The Consortium will bring together stakeholders to identify and address gaps in current standards related to materials, methods, structural performance, and engineering design. The Consortium efforts are intended to study the measurement science needs for the successful adoption of ACE by the construction industry, and to identify and propose new standards to address industry needs not met by existing standards. Participation fees will be at least $10,000 annually or in-kind contributions of equivalent value. Participants will be required to sign a Cooperative Research and Development Agreement (CRADA). At NIST's discretion, entities which are not permitted to enter into CRADAs pursuant to law or other governmental constraint may be allowed to participate in the Consortium pursuant to a separate non-CRADA agreement.
The Consortium's activities will commence on October 15, 2023 (“Commencement Date”). NIST will accept letters of interest to participate in this Consortium on an ongoing basis.
Completed letters of interest or requests for additional information about the Consortium can be directed via mail to the Consortium Manager, Dr. Shawn Platt, Materials and Structural Systems Division of NIST's Engineering Laboratory, 100 Bureau Drive, Mail Stop 8615, Gaithersburg, Maryland 20899, or via electronic mail to
J'aime Maynard, Consortia Agreements Officer, National Institute of Standards and Technology's Technology Partnerships Office, by telephone at (301) 975-8408, by mail to 100 Bureau Drive, Mail Stop 2200, Gaithersburg, Maryland 20899, or by electronic mail to
Additive construction by extrusion (ACE) technology has the potential to revolutionize the construction industry by eliminating the need for formwork and enabling architectural and structural designs that cannot be achieved through current standard practices. As ACE remains in the early stages of development, this Consortium will study the measurement science needs for the successful adoption of ACE by the construction industry. The objective of this Consortium is to identify and then translate cementitious material measurements to in-line or in-process measurements for quality control and quality assurance in the ACE process. Participants in the Consortium will work with NIST toward the following goals:
A focus will be on correlating off-line measurements of fresh and hardening ink to a measure of print quality. The objectives are to determine material performance characteristics that are critical to the success of ACE.
A focus will be on developing in-situ and in-process measurements that may be used to provide feedback into the control of the ACE process. The objective is to implement material property measurements in line to the ACE process.
A focus will be on measurements at the structural scale, including a proper consideration of in-field issues. This includes, but is not limited to, hardened property measurements; studies on curing practices and finishing procedures; and development of numerical simulations of material deposition. The objectives are to develop measurement techniques to assess hardened properties of 3-D printed structures and investigate how early age properties and measurements may inform ACE through the use of numerical simulations.
NIST is soliciting responses from all sources, including other Federal Government agencies, State or local governments, foreign government agencies, industrial organizations (including corporations, partnerships, and limited partnerships, and industrial development organizations), public and private foundations, and nonprofit organizations (including universities). Eligibility will be determined by NIST based on the information provided by prospective participants in response to this notice. NIST will evaluate the submitted responses from prospective participants to determine eligibility to participate in this Consortium. Prospective participants should provide letters of interest with the following information to NIST's Consortium Manager:
1. Narrative of interest in ACE and description of related experience and expertise to contribute to the Consortium.
2. List of anticipated participating individuals.
3. If proposing in-kind participation instead of a fee contribution, description of anticipated in-kind donation and its equivalent value to fee.
Letters of interest must not include business proprietary information. NIST will not treat any information provided in response to this notice as proprietary information. NIST will notify each organization of its eligibility. In order to participate in this Consortium, each eligible organization must sign a CRADA for this Consortium. Entities which are not permitted to enter into CRADAs pursuant to law or other governmental constraint may be allowed to participate in the Consortium, at NIST's discretion, pursuant to separate non-CRADA agreements with terms that may differ, as necessary, from the Consortium CRADA terms.
Participants will contribute US $10,000 annually in funds or equivalent in-kind contributions to be members of the Consortium. NIST does not guarantee participation in the Consortium to any organization submitting a letter of interest. This phase of the Consortium will be for up to five years.
CHIPS Research and Development Office (CHIPS R&D Office), National Institute of Standards and Technology (NIST), Department of Commerce.
Notice of public meeting.
The National Institute of Standards and Technology (NIST) announces that the CHIPS Research and Development Office (CHIPS R&D Office) will hold a Standards Summit on Tuesday, September 26, 2023 and Wednesday, September 27, 2023, from 8:30 a.m. to 5:30 p.m. Eastern Time each day. The CHIPS R&D Standards Summit will be held as an in-person and virtual event. This event will bring together CHIPS R&D leaders, standards setting organizations, and industry alliances, domestic and abroad, in the semiconductor domain to identify community priorities for semiconductor and microelectronics standards activities. The summit will be a place to foster collaboration, coordination, and innovation within the semiconductor industry's standards community. This event will facilitate discussions on standards needs, opportunities for standards innovation, and enabling a diverse standards-capable workforce. Registration information, summit updates, and the agenda can be found at
The CHIPS R&D Standards Summit will take place on Tuesday, September 26, 2023, and Wednesday, 27, 2023, from 8:30 a.m. to 5:30 p.m. Eastern Time each day. The summit will require prior registration and is open to the public. Registration for both virtual and in-person will close on Tuesday, September 19, 2023 at 11:59 p.m. Eastern Time.
The CHIPS R&D Standards Summit will be held in person and virtually via web conference from the Capitol Hilton located at 1001 16th St. NW, Washington, DC 20036. Registration is required to participate either in person or virtually, and members of the public should register in accordance with the information provided in the
For more information about the CHIPS R&D Standards Summit, please contact Chris Greer by telephone at (301) 975-5919 or by email at
The CHIPS R&D Standards Summit will bring together thought leaders within the semiconductor industry and academia to shape the future of semiconductor and microelectronics standards and drive innovation. The summit will offer sessions that facilitate consensus building on the top priority areas within the industry, ways to accelerate strategic efforts across these priority areas, and cover concepts from incubators and accelerators as practiced in the technology sector that might be adapted for use in standards development and enabling a diverse, standards-capable workforce. The summit's first day will consist of plenary and panel sessions with exemplary keynote and guest speakers in the semiconductor and microelectronics standards space. The following day will consist of breakout sessions where attendees will collaborate and discuss key topics that will help shape future semiconductor and microelectronics standards activities.
Participants will explore ways to improve the agility and efficiency of the standards process, ensuring its continued growth in the rapidly evolving semiconductor industry. The scope of the summit includes the full range of standards types—including best practices, de facto, and formal standards—while spanning the semiconductor and microelectronics sector, from materials and design to fabrication, packaging, and testing and certification. Featured speakers include CHIPS R&D leaders, representatives of standards setting organizations, and leading industry alliances and consortia.
Co-hosted by the CHIPS R&D Office, the American National Standards Institute (ANSI), the IEEE Industry Standards and Technology Organization (IEEE-ISTO), the International Electronics Manufacturing Initiative (iNEMI), IPC International, the Joint Development Foundation (JDF), the Networking and Information Technology Research and Development Program (NITRD), the National Nanotechnology Coordination Office (NNCO), SEMI North America, and the Semiconductor Industry Association (SIA), the summit will bring together key stakeholders and experts to exchange ideas on focusing and accelerating strategic efforts across the full spectrum of standards development pathways.
The outcomes of the CHIPS R&D Standards Summit will shape future stakeholder meetings and inform strategies for the CHIPS R&D Office. They will also provide input to standards and measurement programs supporting the needs of the semiconductor industry, enhancing innovation and technology advancement. These outcomes will be published in a post-summit report and will inform standards planning efforts across the semiconductor innovation ecosystem and within the CHIPS R&D Office.
We encourage interested stakeholders, industry representatives, and standards setting organizations to participate actively in this pivotal event. We also invite international attendees, as fostering global collaboration and enriching the discussions on advancing semiconductor standards and innovation is paramount to success. Join us at the CHIPS R&D Standards Summit as we collaboratively shape the future of semiconductor and microelectronics standards, foster innovation, and advance the industry as a whole.
CHIPS for America includes the CHIPS Program Office, responsible for semiconductor incentives, and the CHIPS Research and Development Office, responsible for R&D programs. Both sit within the National Institute of Standards and Technology (NIST) at the Department of Commerce.
National Institute of Standards and Technology, Department of Commerce.
Notice of open briefing session.
The National Institute of Standards and Technology (NIST) announces that the National Artificial Intelligence Advisory Committee (NAIAC or Committee) will hold a virtual briefing session. This session will be held on Friday, September 29, 2023 from 12:00 p.m. to 1:00 p.m. Eastern Time. The purpose of this session is for invited experts to brief the Committee on topics of interest related to the Committee's year two efforts. Additional information, including the final agenda and link to register, will be available online at:
The session will be held on Friday, September 29, 2023 from 12:00 p.m. to 1:00 p.m. Eastern Time. Additional information will be available on
This session will be held virtually. For instructions on how to attend the session, please see the
Alicia Chambers, Designated Federal Officer, National Institute of Standards and Technology, 100 Bureau Drive, MS 1000, Gaithersburg, MD 20899,
In accordance with the Federal Advisory Committee Act, 5 U.S.C. 1001
The NAIAC is authorized by section 5104 of the National Artificial Intelligence Initiative Act of 2020 (Pub. L. 116-283), in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. 1001
National Institute of Standards and Technology (NIST), Department of Commerce.
Notice of open meeting.
The Internet of Things (IoT) Advisory Board will meet Tuesday, October 24 and Wednesday October 25, 2023 from 11 a.m. until 5 p.m., Eastern Time. Both sessions will be open to the public.
The Internet of Things (IoT) Advisory Board will meet Tuesday, October 24 and Wednesday October 25, 2023 from 11 a.m. until 5 p.m., Eastern Time.
The meeting will be virtual via Webex webcast hosted by the National Cybersecurity Center of Excellence (NCCoE) at NIST. Please note registration instructions under the
Barbara Cuthill, Information Technology Laboratory, National Institute of Standards and Technology, Telephone: (301) 975-3273, Email address:
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the IoT Advisory Board will hold open meetings on Tuesday, October 24 and Wednesday October 25, 2023 from 11 a.m. until 5 p.m., Eastern Time. Both sessions will be open to the public. The IoT Advisory Board is authorized by section 9204(b)(5) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283) and advises the IoT Federal Working Group convened by the Secretary of Commerce pursuant to section 9204(b)(1) of the Act on matters related to the Federal Working Group's activities. Details regarding the IoT Advisory Board's activities are available at
The agenda for the October meeting is expected to focus on establishing consensus on the recommendations to be included in the IoT Advisory Board's report for the IoT Federal Working Group as well as continued refinement of that report.
The recommendations and discussions are expected to focus on the specific focus areas for the report cited in the legislation and the charter:
In addition, the IoT Advisory Board may discuss other elements that the legislation called for in the report:
• Whether adequate spectrum is available to support the growing Internet of Things and what legal or regulatory barriers may exist to providing any spectrum needed in the future;
• Policies, programs, or multi-stakeholder activities that—
○ Promote or are related to the privacy of individuals who use or are affected by the Internet of Things;
○ May enhance the security of the Internet of Things, including the security of critical infrastructure;
○ May protect users of the Internet of Things; and
○ May encourage coordination among Federal agencies with jurisdiction over the Internet of Things
Note that agenda items may change without notice. The final agendas will be posted on the IoT Advisory Board web page:
Each IoT Advisory Board meeting agenda will include a period, not to exceed sixty minutes, for oral presentation of comments from the public. Oral presentation of comments from the public during this sixty-minute period will be accommodated on a first-come, first-served basis and limited to five minutes per person for oral presentation if requested by the commenter.
Members of the public who wish to expand upon their submitted comments, those who had wished to present comments orally but could not be accommodated on the agenda, and those who were unable to attend the meeting via webinar, are invited to submit written statements. In addition, written statements are invited and may be submitted to the IoT Advisory Board at any time. All written statements should be directed to the IoT Advisory Board Secretariat, Information Technology Laboratory by email to:
National Institute of Standards and Technology, Commerce.
Notice.
The fall 2023 meetings of the regional weights and measures associations will be held in September and October 2023. The Central Weights and Measures Association (CWMA) Interim meeting will be held September 11-14, 2023, in Dubuque, Iowa; the Western Weights and Measures Association (WWMA) Annual meeting will be held September 17-21, 2023, in Sparks, Nevada; the Southern Weights and Measures Association (SWMA) Annual meeting will be held October 8-11, 2023 in Annapolis, Maryland; and the Northeastern Weights and Measures Association (NEWMA) Interim meeting will be held October 16-19, 2023, in Norwich, Connecticut. This notice contains information about significant items on the committee agendas of the four regional weights and measures associations but does not include all agenda items. As a result, the items are not consecutively numbered.
The CWMA Interim meeting will be held September 11-14, 2023, and the meeting schedule will be available on the CWMA website at
The CWMA Interim meeting will be held in Dubuque, Iowa, with registration and other meeting details available on the CWMA website at
Dr. Katrice Lippa, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600. You may also contact Dr. Lippa at (301) 975-3116 or by email at
The regional weights and measures associations are organizations of weights and measures officials of the states, counties, and cities representing four regions (Central, Western, Southern, and Northeast) of the United States, and include representatives from the private sector and federal agencies. These meetings bring together government officials and representatives of business, industry, trade associations, and consumer organizations on subjects related to the field of weights and measures technology, administration, and enforcement. The regional weights and measures associations operate Standing Committees to conduct open hearings on new items and for all carryover items from the preceding 2023 Annual Meeting of the National Conference on Weights and Measures (NCWM). The regional meetings provide a forum for the further development of regional consensus for these items and serve as the gateway for moving any new items onto the national agenda of the NCWM.
NIST also participates in the regional weights and measures associations providing technical insight and to encourage cooperation between the private sector, federal agencies, and the states in the development of legal metrology requirements. NIST also
Comments will be taken by the respective standing committees in each region on agenda items during the open hearing portion of the regional weights and measures association meetings. The committees then deliberate on these comments which are used to develop recommendations to be forwarded to the national-level standing committees of the NCWM. The sessions are open to registered attendees of the regional weights and measures association meetings and can include both association members and non-members that represent a range of stakeholder groups. These recommendations are intended to amend NIST Handbook 44, “Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices” (NIST HB 44), NIST Handbook 130, “Uniform Laws and Regulations in the areas of Legal Metrology and Fuel Quality” (NIST HB 130), and NIST Handbook 133 Checking the Net Contents of Packaged Goods (NIST HB 133). These NIST Handbooks are regularly adopted by states either by reference or through their administrative procedures.
The following are brief descriptions of some of the significant agenda items that will receive further consideration by the Standing Committees at the upcoming regional weights and measures associations meetings. Comments will be taken on these and other issues during several public comment sessions. At this stage, the items are proposals.
These notices are intended to make interested parties aware of these development projects and to make them aware that reports on the status of the project will be given at the January 2024 NCWM Interim Meeting. The notices are also presented to invite the participation of manufacturers, experts, consumers, users, and others who may be interested in these efforts.
WIM-23.1. Remove Tentative Status and Amend Numerous Sections Throughout. The S&T Committees will consider a proposal to convert the current
EVF 23.4. This proposal submitted by Power Measurements, LLC is intended to update the existing required tests in NIST HB 44 (Section 3.40. Electric Vehicle Fueling Systems) specified for use to determine the accuracy of alternating current (AC) and direct current (DC) systems. The proposal has a Developing status and will expand the number of test points over a specific range of operating conditions for the test of an electric vehicle supply equipment (EVSE) system. The NIST United States National Work Group on Measuring Systems for Electric Vehicle Fueling and Submetering: Electric Vehicle Fueling Equipment Subgroup has also kept the Submitter and NCWM S&T Committee apprised of its ongoing work to develop a more suitable minimum set of test procedures to determine the performance of both AC and DC EVSE systems.
EVF 23.6. The proposal submitted by Florida Department of Agriculture and Consumer Services, Electrify America, Tesla, EVGo, and Siemens was revised by the NCWM S&T Committee after comments during the 2023 NCWM Interim and Annual Meetings. The proposal would amend NIST HB 44, Section 3.40 to require either a physical or digitally formatted marking of accuracy for DC systems meeting ± 5% accuracy requirements. The proposed dual tolerance structure that would permit the wider ± 5% accuracy tolerance is permitted up through 2034. It also includes revisions to acceptance and maintenance tolerances for DC fast charging (DCFC) EV chargers that will be based on the pre- or post-2024 installation and placed into service date of this equipment. The current NIST HB 44 enforcement date of January 1, 2028, for DC systems tolerances adopted in July 2022 remains in effect. The proposal was voted on at the 2023 NCWM Annual Meeting but did not receive enough votes to be adopted and was returned to the NCWM S&T Committee for further consideration and deliberation by stakeholders.
EVF 23.7. The proposal submitted by Electrify America has a Developing status and would amend NIST HB 44, Section 3.40 to establish a larger range of test points that are usable for performing the light load tests, remove the requirement that the load be determined either through the pilot signal (AC systems) or digital communication (DC systems), and add a new definition for the term maximum deliverable amperes which is the value that the NIST HB 44 test procedures use to establish the range of points where tests are performed to determine an electric vehicle fueling system's accuracy. The NCWM S&T Committee requested this proposal and Item EVF 23.4 be considered in the ongoing work to develop a more suitable single set of minimum of test procedures for use in determining the performance of both AC and DC EVSE systems.
LPG—23.1 This proposal submitted by the National Propane Gas Association and U-Haul International addresses practical issues that propane retailers encounter when trying to comply with zero-set-back interlock requirements in NIST HB 44 for electronic stationary and electronic vehicle-mounted propane meters and stationary retail motor-fuel devices used to dispense propane. The intent of the proposal is to exempt the required use of zero-set-back interlock systems in a device used to both dispense liquified petroleum gas for use as a vehicle motor-fuel and in filling containers/cylinders for other than motor-fuel applications. The NCWM S&T Committee at the 2023 NCWM Annual Meeting downgraded the status of the item from Voting to Informational to allow more time to better understand how the proposed changes will impact stakeholders.
OTH 16.1. The NIST United States National Work Group on Measuring Systems for Electric Vehicle Fueling and Submetering: Watthour-Type Electric Meters Subgroup has worked to develop a proposed comprehensive set of legal metrology requirements for electric watthour meters used in submeter applications in residences and businesses (not intended to address utility metering under the authority of entities such as the local utility commission). The NCWM S&T Committee downgraded the proposed new code under consideration at the 2023 NCWM Annual Meeting from a Voting status to Informational status following comments heard during open hearings. Current and new recommendations to language for this proposed new code will be heard at the fall 2023 regional weights and measures association meetings.
National Institute of Standards and Technology, Department of Commerce.
Revised notice of open meeting.
The National Institute of Standards and Technology (NIST) announces that the National Artificial Intelligence Advisory Committee's Law Enforcement Subcommittee (NAIAC-LE or Subcommittee) will hold an open meeting via web conference on September 12, 2023, from 1 p.m. to 2 p.m. Eastern time. The primary purpose of this meeting is for the Subcommittee members to share and discuss updates on goals and deliverables. The final agenda will be posted to the NAIAC website:
The meeting will be held on Tuesday, September 12, 2023 from 1 p.m. to 2 p.m. Eastern time.
The meeting will be held via web conference. Please see the
Alicia Chambers, Committee Liaison Officer, National Institute of Standards and Technology, 100 Bureau Drive, MS 1000, Gaithersburg, MD 20899,
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. 1001
The NAIAC-LE is authorized by Section 5104 of the National Artificial Intelligence Initiative Act of 2020 (Pub. L. 116-283). The Subcommittee advises the President through NAIAC on matters related to the development of artificial intelligence relating to law enforcement. Additional information on the NAIAC-LE is available at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; Issuance of one Endangered Species Act incidental take permit; availability of the Final Environmental Assessment and Finding of No Significant Impact.
Notice is hereby given that NMFS issued an Incidental Take Permit
The ITP (No. 26729) was issued to Port Blakely on September 8, 2023, and the necessary countersignatures by the applicants were received on September 8, 2023. The expiration date of the ITP is September 1, 2073. The issued ITP is subject to certain conditions set forth therein.
The permit, the Final EA and FONSI, and other related documents are available on the NMFS West Coast Region website at:
Annie Birnie, NMFS, via phone at 503-230-5407 or via email at
• Chinook salmon (
• Coho salmon (
• Steelhead (
• Bull trout (
• Gray wolf (
• Northern spotted owl (
• Pacific lamprey (
• Cascades frog (
• Coastal tailed frog (
• Cascade torrent salamander (
• Oregon slender salamander (
• Western/North Pacific pond turtle (
• Northern goshawk (
• Pacific Fisher (
• Townsend's big-eared bat (
• Hoary bat (
• Silver-haired bat (
• Fringed myotis bat (
• Long-eared myotis bat (
• Long-legged myotis bat (
Section 10(a)(1)(B) of the ESA, as amended (16 U.S.C. 1531
On June 14, 2022, NMFS published a Notice of Receipt and Notice of Availability in the
Section 9 of the ESA and Federal regulations prohibit the taking of a species listed as endangered or threatened. The ESA defines “take” to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS may issue permits, under limited circumstances to take listed species incidental to, and not the purpose of, otherwise lawful activities. Section 10(a)(1)(B) of the ESA provides for authorizing incidental take of listed species. NMFS regulations governing permits for threatened and endangered species are promulgated at 50 CFR 222.307
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for nominations.
As required by the Marine Mammal Protection Act (MMPA), the Secretary of Commerce established three independent regional scientific review groups (SRGs) to provide advice on a range of marine mammal science and management issues. NMFS conducted a membership review of the Alaska, Atlantic, and Pacific SRGs, and is soliciting nominations for new members to fill vacancies and gaps in expertise (see below).
Nominations must be received by October 12, 2023.
Nominations can be emailed to
Dr. Zachary Schakner, Office of Science and Technology, 301-427-8106,
Section 117(d) of the MMPA (16 U.S.C. 1386(d)) directs the Secretary of Commerce to establish three independent regional SRGs to advise the Secretary (authority delegated to NMFS). The Alaska SRG advises on marine mammals that occur in waters off Alaska that are under the jurisdiction of the United States. The Pacific SRG advises on marine mammals that occur in waters off the U.S. West Coast, Hawaiian Islands, and the U.S. Territories in the Central and Western Pacific that are under the
SRG members are highly qualified individuals with expertise in marine mammal biology and ecology, population dynamics and modeling, commercial fishing technology and practices, and stocks taken under section 101(b) of the MMPA. The SRGs provide expert reviews of draft marine mammal stock assessment reports and other information related to the matters identified in section 117(d)(1) of the MMPA, including:
A. Population estimates and the population status and trends of marine mammal stocks;
B. Uncertainties and research needed regarding stock separation, abundance, or trends, and factors affecting the distribution, size, or productivity of the stock;
C. Uncertainties and research needed regarding the species, number, ages, gender, and reproductive status of marine mammals;
D. Research needed to identify modifications in fishing gear and practices likely to reduce the incidental mortality and serious injury of marine mammals in commercial fishing operations;
E. The actual, expected, or potential impacts of habitat destruction, including marine pollution and natural environmental change, on specific marine mammal species or stocks, and for strategic stocks, appropriate conservation or management measures to alleviate any such impacts; and
F. Any other issue which the Secretary or the groups consider appropriate.
SRG members collectively serve as independent advisors to NMFS and the U.S. Fish and Wildlife Service and provide their expert review and recommendations through participation in the SRG. Members attend annual meetings and undertake activities as independent persons providing expertise in their subject areas. Members are not appointed as representatives of professional organizations or particular stakeholder groups, including government entities, and are not permitted to represent or advocate for those organizations, groups, or entities during SRG meetings, discussions, and deliberations.
SRG membership is voluntary, and, except for reimbursable travel and related expenses, service is without pay. The term of service for SRG members is 3 years, and members may serve up to three consecutive terms if reappointed.
NMFS annually reviews the expertise available on the SRG and identifies gaps in the expertise that is needed to provide advice pursuant to section 117(d) of the MMPA. In conducting the reviews, NMFS attempts to achieve, to the maximum extent practicable, a balanced representation of viewpoints among the individuals on each SRG.
For the Alaska SRG, NMFS seeks individuals with expertise in one or more of the following areas (not in order of priority): Abundance estimation, especially distance sampling and mark-recapture methods and survey design; Passive acoustic data collection and analysis; Climate and oceanographic changes impacting marine mammals, particularly in the Arctic; Quantitative ecology, population dynamics, modeling, and statistics, especially as related to abundance, bycatch, and distribution; Anthropogenic impacts, particularly fisheries bycatch and depredation; vessel strikes; effects of anthropogenic sound; Marine mammal health and ecotoxicology; contaminants and algal blooms, toxicology, pollutants; Pinnipeds; genetics as a method of identifying population structure; offshore oil impacts.
For the Pacific SRG (including waters off the Pacific coast, Hawaiian Islands and the U.S. Territories in the Central and Western Pacific), NMFS seeks individuals with expertise in one or more of the following areas (not in order of priority): Population structure based on genetic data, incorporation of new methodological or technological advancements for data collection/analysis (
For the Atlantic SRG (including waters off the Atlantic coast, Gulf of Mexico, and U.S. Territories in the Caribbean), NMFS seeks individuals with expertise in one or more of the following highest priority areas: Large whale (especially North Atlantic right whales) population dynamics, biology and ecology; Small cetacean population dynamics and ecology with a focus on pelagic species and estuarine and nearshore bottlenose dolphins; Marine mammal—fishery interactions including fishing gear, fishing practices, and bycatch reduction; Impacts of oceanographic & ecosystem changes such as climate change, energy (renewable/non-renewable), or marine aquaculture on marine mammal populations; Quantitative skills relevant to marine mammal population assessment including, mark-recapture population estimation methods, bycatch estimation, and population dynamics modeling; Quantitative skills relevant to marine mammal habitat modeling; Ecology of Caribbean marine mammals especially humpback and sperm whales; Manatee population dynamics and ecology.
Nominations for new members should be sent to Dr. Zachary Schakner in the NMFS Office of Science & Technology (see
Although the MMPA does not explicitly prohibit Federal employees from serving as SRG members, NMFS interprets MMPA section 117(d)'s reference to the SRGs as “independent” bodies that are exempt from Federal Advisory Committee Act requirements to mean that SRGs are intended to augment existing Federal expertise and are not composed of Federal employees or contractors.
When reviewing nominations, NMFS, in consultation with the U.S. Fish and Wildlife Service, will consider the following six criteria:
(1) Ability to make time available for the purposes of the SRG;
(2) Knowledge of the species (or closely related species) of marine mammals in the SRG's region;
(3) Scientific or technical achievement in a relevant discipline, particularly the areas of expertise identified above, and the ability to serve as an expert peer reviewer for the topic;
(4) Demonstrated experience working effectively on teams;
(5) Expertise relevant to current and expected needs of the SRG, in particular, expertise required to provide adequate review and knowledgeable feedback on current or developing stock assessment issues, techniques,
(6) No conflict of interest with respect to their duties as a member of the SRG.
Following review, nominees who are identified by NMFS as potential new members must be vetted and cleared in accordance with Department of Commerce policy. NMFS will contact these individuals and ask them to provide written confirmation that they are not registered Federal lobbyists or registered foreign agents, and to complete a confidential financial disclosure form, which will be reviewed by the Ethics Law and Programs Division within the U.S. Department of Commerce's Office of General Counsel. All nominees will be notified of a selection decision in advance of the 2023 SRG meetings.
Per 45 CFR Chapter XXI § 2102.3, the next meeting of the U.S. Commission of Fine Arts is scheduled for September 21, 2023, at 9:00 a.m. and will be held via online videoconference. Items of discussion may include buildings, infrastructure, parks, memorials, and public art.
Draft agendas, the link to register for the online public meeting, and additional information regarding the Commission are available on our website:
88 FR 60442, September 1, 2023.
9:00 a.m. EDT, Friday, September 8, 2023.
The meeting has been canceled.
Christopher Kirkpatrick, Secretary of the Commission, 202-418-5964.
Notice of availability of Record of Decision.
On August 15, 2023, the Department of the Air Force (DAF) signed the Record of Decision (ROD) for Comprehensive Airspace Initiative at Moody Air Force Base, Georgia, Environmental Impact Statement.
Mr. Lorence Busker, 23rd Civil Engineer Squadron, 3485 Georgia Street, Moody Air Force Base, Georgia 31699-1707, Telephone: (229) 257-2396;
The DAF has selected Modified Alternative 1: Create the Corsair North Low, Corsair South Low, Mustang Low, and Warhawk Low Military Operations Areas (MOAs) with a floor of 1,000 ft above ground level (AGL) and a ceiling of 7,999 ft above mean sea level (MSL) beneath and within the lateral confines of the existing Corsair North, Corsair South, Mustang and Warhawk MOAs, respectively; create the Thud Low MOA with a floor of 4,000 ft AGL and a ceiling of 7,999 ft MSL beneath and within the lateral confines of the existing Thud MOA; create Grand Bay MOA with a floor of 100 ft AGL and a ceiling of 499 ft AGL beneath and within the lateral confines of the existing Restricted Area R-3008C; and lower the floor of Moody 2 North MOA from 500 ft AGL to 100 ft AGL. Based on this decision, the DAF will request the Federal Aviation Administration modify the low-altitude airspace floors to enhance low-altitude training within the Moody Airspace Complex.
The DAF decision documented in the ROD was based on matters discussed in the Final Environmental Impact Statement, inputs from the public and regulatory agencies, and other relevant factors. The Final Environmental Impact Statement was made available to the public on May 19, 2023, through a Notice of Availability in the
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 joint ownership agreement with an Exclusive Patent License to Licensee, Battelle Memorial Institute having a place of business at 505 King Avenue, Columbus, Ohio 43201.
Written objections must be filed no later than fifteen (15) calendar days after the date of publication of this Notice.
Submit written objections to Dr. Griffin Romigh, Lead, Office of Research and Technology Applications (ORTA), AFRL/RY—Sensors Directorate, Bldg. 600, 2nd Floor, 2241 Avionics Circle, Wright-Patterson AFB, OH 45433; Phone (937) 713-3494; or Email:
Dr. Griffin Romigh, Lead, Office of Research and Technology Applications (ORTA), AFRL/RY—Sensors Directorate, Bldg. 600, 2nd Floor, 2241 Avionics Circle, Wright-Patterson AFB, OH 45433; Phone (937) 713-3494; or Email:
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 and request for public comments.
On behalf of the U.S. Government, DoD is contemplating negotiating and concluding a new Reciprocal Defense Procurement Agreement with the Federative Republic of Brazil. DoD is requesting industry feedback regarding its experience in public defense procurements conducted by or on behalf of the Brazilian Ministry of Defence or Armed Forces.
Comments must be received by October 12, 2023.
Submit comments by email to
Mr. Jeff Grover, telephone +1-703-380-9783.
DoD has concluded Reciprocal Defense Procurement (RDP) Agreements with 28 qualifying countries, as defined in the Defense Federal Acquisition Regulation Supplement (DFARS) 225.003, at the level of the Secretary of Defense and his counterpart. The purpose of an RDP Agreement is to promote rationalization, standardization, interchangeability, and interoperability of conventional defense equipment with allies and other friendly governments. These Agreements provide a framework for ongoing communication regarding market access and procurement matters that enhance effective defense cooperation.
RDP Agreements generally include language by which the Parties agree that their defense procurements will be conducted in accordance with certain implementing procedures. These procedures relate to—
• Publication of notices of proposed purchases;
• The content and availability of solicitations for proposed purchases;
• Notification to each unsuccessful offeror;
• Feedback, upon request, to unsuccessful offerors concerning the reasons they were not allowed to participate in a procurement or were not awarded a contract; and
• Provision for the hearing and review of complaints arising in connection with any phase of the procurement process to ensure that, to the extent possible, complaints are equitably and expeditiously resolved.
Based on the Agreement, each country affords the other country certain benefits on a reciprocal basis consistent with national laws and regulations. The benefits that the United States accords to the products of qualifying countries include—
• Offers of qualifying country end products are evaluated without applying the price differentials otherwise required by the Buy American statute and the Balance of Payments Program;
• The chemical warfare protection clothing restrictions in 10 U.S.C. 4862 and the specialty metals restriction in 10 U.S.C. 4863 do not apply to products manufactured in a qualifying country; and
• Customs, taxes, and duties are waived for qualifying country end products and components of defense procurements.
If DoD (for the U.S. Government) concludes a new RDP Agreement with the Federative Republic of Brazil and DoD executes a blanket public interest determination, as intended, Brazil will be listed as one of the qualifying countries at DFARS 225.872-1(a).
While DoD is evaluating Brazil's laws and regulations in this area, DoD would benefit from U.S. industry's experience in participating in Brazilian public defense procurements. DoD is, therefore, asking U.S. firms that have participated or attempted to participate in procurements by or on behalf of Brazil's Ministry of Defence and Armed Forces to let us know if the procurements were conducted with transparency, integrity, fairness, and due process in accordance with published procedures, and if not, the nature of the problems encountered.
DoD is also interested in comments relating to the degree of reciprocity that exists between the United States and Brazil when it comes to the openness of defense procurements to offers of products from the other country. Further, DoD would like to understand the degree to which U.S. industry feels that it would have equal and proportional access to the Brazilian defense market as Brazil would have under an RDP Agreement.
Department of the Navy (DoN), Department of Defense (DoD).
Amendment to notice of open meeting.
The Board of Visitors of the Marine Corps University (BOV MCU) will meet to review, develop and provide recommendations on all aspects of the academic and administrative policies of the University; examine all aspects of professional military education operations; and provide such oversight and advice, as is necessary, to facilitate high educational standards and cost effective operations. The Board will be focusing primarily on the internal procedures of Marine Corps University.
The meeting will be held on Monday, 18 September 2023, from 8:00 a.m. to 4:30 p.m. and 19 September from 08:30 a.m. to 12:00 p.m. Pacific Time Zone.
The meeting will be held at Camp Pendleton, California. The address is: Education Center, Building 23195, Marine Corps Air Station, Camp Pendleton, CA 92055. All sessions of the meeting will be open to the public via Microsoft Teams:
Dr. Kim Florich, Director of Faculty Development and Outreach, Marine Corps University Board of Visitors, 2076 South Street, Quantico, Virginia 22134, telephone number 703-432-4837.
Due to circumstances beyond the control of the Designated Federal Officer, the Board of Visitors, Marine Corps University was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its September 18-19, 2023 meeting. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
Institute of Education Sciences (IES), 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 12, 2023.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Amy Johnson, 303-844-4490.
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.
IES requests clearance for activities to support the recruitment of school districts to participate in an efficacy study of a Toolkit to Support Evidence-Based Algebra Instruction in Middle and High School as part of the REL
Even prior to the COVID-19 pandemic, Algebra I proved challenging for many students because of the extensive abstract thinking it requires (Katz, 2007; Susa et al., 2014). To help students succeed in Algebra I, REL Central is developing a toolkit of professional learning supports to help Algebra I teachers learn about, make sense of, plan for, and implement three evidence-based Algebra I teaching practices that were identified in the related What Work Clearinghouse (WWC) Practice Guide, “Teaching Strategies for Improving Algebra Knowledge in Middle and High School Students.” The toolkit contains the following three parts: (1) Initial Diagnostic and On-going Monitoring Instruments, (2) Professional Development Resources, and (3) Steps for Institutionalizing Supports for Evidence-Based Practice.
This study will assess whether implementing the toolkit improves teacher and student outcomes and will describe the implementation of the toolkit in study schools that use it. Using a school-level randomized controlled trial during the 2024-2025 school year, the study will estimate the impact of the toolkit on teachers' self-efficacy and their understanding and use of the promising practices, as well as on students' algebraic content knowledge, self-efficacy, and mathematical mindsets. To provide context for the impact estimates and inform future use of the toolkit, the study will also describe the implementation of the toolkit. The study plans to include 20 schools from three districts. To disseminate these findings, REL Central will produce a report for school leaders and teachers who are potential users of the toolkit.
Office of Special Education and Rehabilitative Services (OSERS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before November 13, 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 Diana Yu, (202) 245-6061.
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.
Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a revision of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before October 12, 2023.
Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link
For specific questions related to collection activities, please contact Stephanie Valentine, 202-987-1805.
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.
Surveys to be considered under this generic will only include those surveys that improve customer service or collect feedback about a service provided to individuals or entities directly served by ED. The results of these customer surveys will help ED managers plan and implement program improvements and other customer satisfaction initiatives. Focus groups that will be considered under the generic clearance will assess customer satisfaction with a direct service or will be designed to inform a customer satisfaction survey ED is considering. Surveys that have the potential to influence policy will not be considered under this generic clearance.
ED will also launch challenges or prize competitions on occasion in a short turnaround. The information collected for challenges and prize competitions will generally include the submitter's or other contact person's first and last name, organizational or school affiliation; email address or other contact information (to follow up if the submitted entry is selected as a finalist or winner); street address (to confirm that the submitter or affiliated school or organization for eligibility purposes); and a video or a narrative description for the specific challenge or contest. ED may also request information indicating the submitter's educational level, ethnicity, age range, gender, and race (to evaluate entrants' diversity and backgrounds). Finally, ED may ask for additional information tailored to the challenge or prize competition through structured questions. This information will enable the Department to create and administer challenges and prize competitions more effectively.
Upon entry or during the judging process, entrants under the age of 18 will be asked to confirm parental consent, which will require them to obtain and provide a parent or guardian signature in a format outlined in the specific criteria of each challenge or prize competition to qualify for the contest. To protect online privacy of minors, birthdate may be required by the website host to ensure the challenge platform meets the requirements of all privacy laws.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for a new license to continue to operate and maintain the Hinckley (Gregory B. Jarvis) Hydroelectric Project (Jarvis Project). The Jarvis Project is located on West Canada Creek, near the Hamlet of Hinckley in the counties of Oneida and Herkimer, New York.
On June 27, 2022, the Commission issued a notice indicating that staff intended to prepare a multi-project Environmental Assessment (EA) for both the Jarvis Project and Erie Boulevard Hydropower, L.P.'s West Canada Creek Hydroelectric Project, because the projects are located adjacent to each other. However, the Fiscal Responsibility Act of 2023 now requires that an EA “shall not exceed 75 pages, not including any citations or appendices” (Fiscal Responsibility Act of 2023, Pub. L. 118-5, 107, 137 Stat 42 (2023)). A multi-project EA would have exceeded the page limit established in the Act, so staff has prepared a stand-alone draft Environmental Assessment (EA) for the Jarvis Project.
The draft EA contains staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the draft EA via the internet through the Commission's Home Page (
You may also register online 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
Any comments should be filed within 45 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Andy Bernick at (202) 502-8660 or by email at
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 comments, motions to intervene, and protests 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.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
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
On September 5, 2023, the Montana Department of Natural Resources and Conservation 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 Quality (Montana DEQ), in conjunction with the above captioned project. Pursuant to section 401 of the Clean Water Act
If Montana DEQ fails or refuses to act on the water quality certification request on or before September 1, 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 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
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 Commission has received the following Natural Gas and Oil Pipeline Rate and Refund Report filings:
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 (
For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. 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 Commission has received the following Natural Gas and Oil Pipeline Rate and Refund Report filings:
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.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. 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 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:
For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. 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 during the month of August 2023, the status of the above-captioned entities as Exempt Wholesale Generators became effective by operation of the Commission's regulations. 18 CFR 366.7(a) (2022).
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for a new license to continue to operate and maintain the West Canada Creek Hydroelectric Project (West Canada Creek Project). The West Canada Creek Project is located on West Canada Creek, in the counties of Oneida and Herkimer, New York.
On June 27, 2022, the Commission issued a notice indicating that staff intended to prepare a multi-project Environmental Assessment (EA) for both the West Canada Creek Project and Power Authority of the State of New York's Hinckley (Gregory B. Jarvis) Hydroelectric Project, because the projects are located adjacent to each other. However, the Fiscal Responsibility Act of 2023 now requires that an EA “shall not exceed 75 pages, not including any citations or appendices” (Fiscal Responsibility Act of 2023, Pub. L. 118-5, 107, 137 Stat 42 (2023)). A multi-project EA would have exceeded the page limit established in the Act, so staff has prepared a stand-alone draft Environmental Assessment (draft EA) for the West Canada Creek Project.
The draft EA contains staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the draft EA via the internet through the Commission's Home Page (
You may also register online 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
Any comments should be filed within 45 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Laurie Bauer at (202) 502-6519 or by email at
This is a supplemental notice in the above-referenced proceeding of Mammoth North LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426,
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 25, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
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
On June 28, 2023, Littoral Power Systems, Inc. filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Upper Cook Inlet Tidal Energy Project to be located in Cook Inlet, Alaska approximately 17 miles north-northwest of Kenai, Alaska and 9.5 miles northwest of Nikiski, Alaska. The sole purpose of a preliminary permit is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The project would consist of axial hydrokinetic turbines installed underwater at or proximate to one or more of four existing decommissioned natural gas drilling platforms (Baker, Shell-A, Shell-C, and Dillon) located within the Upper Cook Inlet. The drilling platforms, which are owned and operated by Hilcorp Alaska, LLC, would be the prime anchoring structures for the hydrokinetic equipment that would convert the energy of Cook Inlet's tidal currents into electrical power. The electrical energy would be transmitted via a new 25kV submarine cable to an existing onshore substation (the Bernice Lake substation owned by the Homer Electric Association, Inc.) located about 1.5 miles east-northeast of the East Foreland Lighthouse on the Kenai Peninsula. The length of the subsea cable from the drilling platforms to land would be between 3.5 and 5 miles, depending on the selected route, and the length of the land transmission line to the substation would be between 2 and 3 miles. Each hydrokinetic turbine would have a generating capacity of 1 megawatt (MW). The project would produce from 5,000 to 6,000 megawatt-hours (MWh) per year initially.
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 filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can
Take notice that on August 28, 2023, MIGC LLC (MIGC) requested that the Federal Energy Regulatory Commission (Commission) grant an extension of time (2023 Extension of Time Request), until September 10, 2024, to abandon certain compressor facilities and associated mainline capacity at its Python Compressor Station located in Converse County, Wyoming, in the Prior Notice Request for Authorization Under Blanket Certificate (Prior Notice) under Docket No. CP22-480-000. The Prior Notice requested authorization to abandon certain compressor facilities and associated mainline capacity at its Python Compressor Station located in Converse County, Wyoming. On July 11, 2022, the Commission issued a Notice of Request Under Blanket Authorization, which established a 60-day comment period, ending on September 9, 2022, to file protests. No protests were filed during the comment period, and accordingly the project was authorized on September 10, 2022 and by Rule should have been completed within one year.
In its 2023 Extension of Time Request, MIGC states that it is determining whether retention of all or a portion of the facilities and associated capacity authorized for abandonment may be necessary to meet changing market demands. MIGC explains that a recent shift in market conditions was unanticipated and presents an extenuating circumstance that may require the continued use of MIGC's compressor facilities at its Python Compressor Station. Although, MIGC stated in the Prior Notice request that local production of natural gas in the area that MIGC operates in Wyoming has been steadily declining over the past ten years, recent market conditions suggest that retaining the capacity associated with the Python Compressor Station may be the most efficient way to serve changing market needs while providing the least amount of environmental impact.
This notice establishes a 15-calendar day intervention and comment period deadline. Any person wishing to comment on MIGC'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 Natural Gas Act (18 CFR 157.10).
As a matter of practice, the Commission itself generally acts on requests for extensions of time to complete construction for Natural Gas Act 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, protests and interventions in lieu of paper using the “eFiling” link at
This supplemental notice in the above-referenced proceeding of Redonda PV LLC's filing includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 12, 2023.
The Commission encourages electronic submission of protests and
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
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
On August 11, 2023, Hypower, Inc., (transferor) filed an application for a transfer of license of the 14.5-megawatt Forks of Butte Project No. 6896.
The applicant seeks Commission approval to convert the license for the Forks of Butte Project from Hypower, Inc., to a limited liability company (Hypower, LLC or transferee). The transferee will be required by the Commission to comply with all the requirements of the license as though it were the original licensee.
Shannon E. O'Neil, Derek D. Green, Davis Wright Tremaine LLP, Suite 500 East, 1301 K Street NW, Washington, DC 20005-3317, Phone: 202-973-4209, and 503-778-5264, Email:
In lieu of electronic filing, you may submit a paper copy. Submissions sent via 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. The first page of any filing should include docket number P-6896-079. Comments emailed to Commission staff are not considered part of the Commission record.
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
On April 14, 2023, Alabama Power Company (Alabama Power) filed a Notice of Intent (NOI) for the proposed 1,600-megawatt Chandler Mountain Pumped Storage Project. The project would have been located on Little Canoe Creek East and Chandler Mountain in Etowah and St. Clair Counties, near the town of Steele, Alabama. On August 17, 2023, Alabama Power filed a notice of withdrawal of the NOI for the above-referenced project.
No motion in opposition to the notice of withdrawal has been filed, and the Commission has taken no action to disallow the withdrawal. Pursuant to
This is a supplemental notice in the above-referenced proceeding of Northeastern Power & Gas, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 25, 2023.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
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
Environmental Protection Agency (EPA).
Notification of a public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), the U.S. Environmental Protection Agency (EPA) hereby provides notice that the White House Environmental Justice Advisory Council (WHEJAC) will meet on the date and time described below. Due to unforeseen administrative circumstances, EPA is announcing this meeting with less than 15 calendar days public notice. The meeting is open to the public. The meeting is open to the public. For additional information about registering to attend the meeting or to provide a public comment, please see REGISTRATION under
The WHEJAC will convene a virtual public meeting on Tuesday, September 26, 2023, from approximately 3 to 8 p.m. EDT. Meeting discussions will focus on several topics including, but not limited to, workgroup activities, proposed recommendations for the Council on Environmental Quality (CEQ) and the White House Environmental Justice Interagency Council (IAC), CEQ briefings, and a new formal charge for the WHEJAC. A public comment period relevant to current WHEJAC charges will be considered by the WHEJAC at the meeting on Tuesday, September 26, 2023, (see
Audrie Washington, WHEJAC Designated Federal Officer, U.S. EPA; email:
The Charter of the WHEJAC (available at
Individual registration is required for the public meeting. Information on how to register is located at
The WHEJAC is interested in receiving public comments relevant to the following charges, topics, and questions currently under consideration: (1) the Climate and Economic Justice Screening Tool; (2) the Environmental Justice Scorecard; (3) carbon management; (4) ways that the WHEJAC could recommend advancing environmental justice through a whole-of-government approach; and (5) environmental justice issues affecting Indigenous Peoples and Tribal Nations. With respect to environmental justice issues affecting indigenous peoples and tribal nations, the WHEJAC Indigenous Peoples and Tribal Nations Workgroup is particularly interested in receiving comments on: Examples of environmental hazards of particular concern for indigenous peoples and tribal nations (for example, environmental hazards related to Federal activities that may affect sacred sites and areas of cultural significance, cultural or other traditions or practices, subsistence, and ways of life); ways in which the Federal Government can address community impacts on, and concerns of, indigenous peoples and tribal nations; and ways in which the incorporation of indigenous knowledge into Federal decision-making could help address environmental hazards and environmental justice concerns. More information on WHEJAC workgroup charges is located online at:
Priority to speak during the meeting will be given to public commenters with comments relevant to the topics and questions listed above. Every effort will be made to hear from as many registered public commenters during the time specified on the agenda. Individuals or groups making remarks during the public comment period will be limited to three (3) minutes. Please be prepared to briefly describe your issue and your recommendation relevant to the current charges, topics, and questions under consideration by the WHEJAC. Submitting written comments for the record is strongly encouraged. You can submit your written comments in three different ways: (1) by creating comments in the Docket ID No. EPA-HQ-OEJECR-2023-0099 at
To request special accommodations for a disability or other assistance, please submit your request at least five (5) working days prior to the meeting to give EPA sufficient time to process your request. All requests should be sent to the email listed in the
Environmental Protection Agency (EPA).
Notice of availability.
The Environmental Protection Agency (EPA) is announcing the availability of the latest MOtor Vehicle Emission Simulator model major release (MOVES4) for official purposes outside of California. MOVES4 is the latest version of EPA's state-of-the science modeling tool for estimating emissions from cars, trucks, buses, and motorcycles based on the latest data and regulations. MOVES4 is available for use in state implementation plans (SIPs) and transportation conformity analyses outside of California. This notice starts a two-year grace period before MOVES4 will need to be used as the latest EPA emissions model for transportation conformity determinations outside of California, both in new regional emissions analyses and in new hot-spot analyses.
EPA's announcement of the MOVES4 emissions model for SIPs and transportation conformity analyses in states other than California is effective September 12, 2023. This announcement starts a two-year transportation conformity grace period that ends on September 12, 2025. After this date, MOVES4 will need to be used as the latest EPA emissions model for new transportation conformity analyses outside of California in both regional emissions analyses and in hot-spot analysis.
For technical model questions regarding the official release or use of MOVES4, please email EPA at
The contents of this notice are as follows:
Entities potentially impacted by the approval of MOVES4 are those that adopt, approve, or fund transportation plans, transportation improvement programs (TIPs), or projects as defined in 40 CFR 93.101 under title 23 U.S.C. or title 49 U.S.C. chapter 53 and those that develop and submit SIPs to EPA. Regulated categories and entities affected by today's action include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the release of MOVES. Other entities not listed in the table could also be affected. To determine whether your organization is affected by this action, you should carefully examine the transportation conformity applicability requirements in 40 CFR 93.102. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding
The official version of the MOVES4 model and supporting documentation are available on EPA's MOVES website:
Available guidance on how to apply MOVES4 for SIPs and transportation conformity purposes can be found on EPA's transportation conformity website,
EPA will continue to update these websites as other MOVES support materials and guidance are developed or updated.
MOVES4 is EPA's latest motor vehicle emissions model for state and local agencies to estimate volatile organic compounds (VOCs), nitrogen oxides (NO
MOVES4 includes new regulations, features, and significant new data, as detailed in the MOVES4 technical reports. Notably, MOVES4 incorporates:
• The emission impacts of the EPA heavy-duty low NO
• The ability to model heavy-duty battery-electric and fuel-cell vehicles, as well as CNG long-haul combination trucks.
• Improved modeling of light-duty electric vehicles.
• New tools to make the model easier to use and updates for compatibility with newer software.
• Updated data and forecasts on vehicle populations (including electric vehicle fractions), travel activity, and emission rates, as well as updated fuel supply information at the county level.
• The latest data on ammonia emission rates for light-duty and heavy-duty vehicles.
• A number of limited-impact updates to specific emissions rates and adjustments.
Like its predecessors, MOVES4 includes the capability to estimate vehicle exhaust and evaporative emissions as well as brake wear and tire wear emissions for criteria pollutants and precursors. However, like previous versions, MOVES4 does not include the capability to estimate emissions of re-entrained road dust. To estimate emissions from re-entrained road dust, practitioners should continue to use the latest approved methodologies.
The structure of MOVES4 is fundamentally the same as MOVES3, although there are new format options for some inputs, and the model run time may differ depending on the type of run and user inputs and computer configuration. As for emissions, EPA performed a comparison of MOVES4 to MOVES3 using default information in MOVES4 at the national level, and for three sample urban counties with different local travel patterns and ambient conditions. In general, compared to MOVES3, MOVES4 will produce notable decreases in NO
EPA has articulated its policy regarding the use of MOVES4 in SIP development in its “MOVES4 Policy Guidance: Use of MOVES for State Implementation Plan Development, Transportation Conformity, General Conformity, and Other Purposes” (EPA-420-B-23-009, August 2023). Today's notice highlights certain aspects of the guidance, but state and local governments should refer to the guidance for more detailed information on how and when to use MOVES4 in reasonable further progress SIPs, attainment demonstrations, maintenance plans, inventory updates, and other SIP submissions.
MOVES4 should be used in ozone, CO, PM, and nitrogen dioxide (NO
States should use the latest version of MOVES that is available at the time that a SIP is developed. All states other than California should use MOVES4 for SIPs that will be submitted in the future so that they are based on the most accurate estimates of emissions possible. However, state and local agencies that have already completed significant work on a SIP with a version of MOVES3 (
The Clean Air Act does not require states that have already submitted SIPs or will submit SIPs shortly after the release of a new model to revise these SIPs simply because a new motor vehicle emissions model is now available.
Incorporating MOVES4 into the SIP now could assist areas in mitigating possible transportation conformity difficulties in the future after the MOVES4 conformity grace period ends. New regional emissions analyses using EPA's emissions model that are started after the grace period is over must be based on MOVES4 (40 CFR 93.111), so having MOVES4-based SIP budgets in place at that time could provide more consistency with transportation conformity determinations.
In today's notice, EPA is announcing the availability of MOVES4 for use in transportation conformity analyses outside of California. EPA is also establishing a two-year grace period before MOVES4 will need to be used in regional emissions analysis for transportation conformity determinations and in hot-spot analyses for project-level transportation conformity determinations which use EPA's emissions model. The MOVES4 grace period for regional emissions and hot-spot analyses applies to the use of MOVES4 and any future minor revisions that occur during the grace period.
Transportation conformity is a Clean Air Act requirement to ensure that federally supported highway and transit activities are consistent with (“conform to”) the SIP. Conformity to a SIP means that a transportation activity will not cause or contribute to new air quality violations; worsen existing violations; or delay timely attainment of national ambient air quality standards or any interim milestones. Transportation conformity applies in nonattainment and maintenance areas for transportation-related pollutants: ozone, CO, PM
The remainder of this section describes how the transportation conformity grace period was determined and summarizes how it will be implemented, including those circumstances when the grace period could be shorter than two years for regional emissions analyses. However, for complete explanations of how MOVES4 is to be implemented for transportation conformity, including details about using MOVES4 during the grace period, refer to “MOVES4 Policy Guidance: Use of MOVES for State Implementation Plan Development, Transportation Conformity, General Conformity, and Other Purposes.” (EPA-420-B-23-009).
Section 176(c)(1) of the Clean Air Act states that “. . .[t]he determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel, and congestion estimates. . .”. Additionally, the transportation conformity rule (40 CFR 93.111) requires conformity analyses to be based on “the latest emissions estimation model available,” and further states that this requirement is satisfied if the most current version of EPA's motor vehicle emissions model is used. When EPA announces a new emissions model, such as MOVES4, we establish a grace period before the model needs to be used for transportation conformity purposes (40 CFR 93.111(b)). In consultation with DOT, EPA must consider the degree of change in the emissions model and the effects of the new model on the transportation planning process (40 CFR 93.111(b)(2)). The transportation conformity rule provides that EPA will establish a grace period for new emissions models of between three and 24 months (40 CFR 93.111(b)(1)).
EPA articulated its intentions for establishing the length of a conformity grace period in the preamble to the 1993 transportation conformity rule (November 24, 1993; 58 FR 62211):
“EPA and DOT [the Department of Transportation] will consider extending the grace period if the effects of the new emissions model are so significant that previous SIP demonstrations of what emission levels are consistent with attainment would be substantially affected. In such cases, States should have an opportunity to revise their SIPs before MPOs must use the model's new emissions factors.”
In consultation with DOT, EPA considered the degree of change in MOVES4 and the effects of the new model on the transportation planning process (40 CFR 93.111(b)(2)). EPA considered the time it will take state and local transportation and air quality agencies to conduct and provide technical support for analyses. State and local agencies will need to become familiar with the MOVES4 emissions model and may need to convert existing data for use in MOVES4. Since 1993, the fundamental purpose of section 93.111(b) of the transportation conformity rule has been to provide a sufficient amount of time for MPOs and other state and local agencies to learn and employ new emissions models. The transition to a new emissions model for conformity involves more than learning to use the new model and preparing input data and model output. After model start-up is complete, state and local agencies also need to consider how the model affects regional emissions analysis results and whether SIP and/or transportation plan/TIP changes are
The two-year conformity grace period also provides sufficient time for state and local agencies to learn and apply new technical guidance and training that reflect MOVES4. EPA is working to update guidance documents and training materials as quickly as possible. EPA will notify MOVES4 users when these important materials are available. Training materials will address different levels of state and local expertise.
In addition, many agencies will be implementing the transition to MOVES4 for PM and CO hot-spot analyses for applicable projects in those nonattainment and maintenance areas, with each analysis potentially involving multiple state and local agencies. States with CO hot-spot protocols that were previously approved into the SIP (40 CFR 93.123(a)(1)) that are based on a previous model will need time to revise them. Additional time is necessary to revise previously approved CO hot-spot protocols, and the SIP revision process and state requirements can vary. Finally, EPA considered the general time and monetary resource constraints in which state and local agencies currently operate. Upon considerations of all these factors, EPA is establishing a two-year grace period, which begins today and ends on September 12, 2025, before MOVES4 needs to be used for new transportation conformity analyses outside of California.
The grace period for regional emissions analyses will be shorter than two years for a given pollutant if an area revises its SIP and motor vehicle emissions budgets with MOVES4 and such budgets have been found adequate or approved into the SIP prior to the end of the two-year grace period. In this case, the new regional emissions analysis must use MOVES4 if the conformity determination is based on a MOVES4-based budget (40 CFR 93.111).
Areas that are designated nonattainment or maintenance for multiple pollutants may rely on both MOVES4 and MOVES3 to determine conformity for different pollutants during the grace period. For example, if an area revises a previously submitted (but not approved) MOVES3-based PM
In addition, in most cases, if the state revises previously approved budgets based on an earlier EPA emissions model, the revised MOVES4 budgets could not be used for conformity purposes until EPA approves them,
However, 40 CFR 93.118(e)(1) allows an approved budget to be replaced by an adequate budget if EPA's approval of the initial budgets specifies that the budgets being approved may be replaced in the future by new adequate budgets. This flexibility has been used in limited situations in the past. In such cases, the MOVES4-based budgets would be used for conformity purposes once they have been found adequate, if requested by the state in its SIP submission and specified in EPA's SIP approval. States should consult with their EPA Regional Office to determine if this flexibility applies to their situation.
During the conformity grace period, areas should use interagency consultation to examine how MOVES4 will impact their future transportation plan and TIP conformity determinations, including regional emissions analyses. Isolated rural areas should also consider how future regional emissions analyses will be affected when the MOVES4 grace period ends. Areas should carefully consider whether the SIP and budgets should be revised with MOVES4 or if transportation plans and TIPs should be revised before the end of the conformity grace period, since doing so may be necessary to ensure conformity in the future.
Finally, the transportation conformity rule provides flexibility for completing conformity determinations based on regional emissions analyses that use MOVES3 that are started before the end of the grace period. Regional emissions analyses that are started during the grace period can use either MOVES3 or MOVES4. The interagency consultation process should be used if it is unclear if a MOVES3-based analysis was begun before the end of the grace period. If there are questions about which model should be used in a conformity determination, the EPA Regional Office can be consulted.
When the grace period ends on September 12, 2025, MOVES4 will become the only EPA motor vehicle emissions model for regional emissions analyses for transportation conformity in states other than California. In general, this means that all new transportation plan and TIP conformity determinations started after the end of the grace period must be based on MOVES4, even if the SIP is based on MOVES3 or an older version of the MOVES model.
The MOVES4 grace period also applies to the use of MOVES4 for CO, PM
EPA encourages sponsors to use the consultation process to determine which option may be most appropriate for a given situation. Any new CO, PM
Any new, quantitative CO, PM
FHWA released the most recent CO categorical hot-spot finding for intersection projects on January 31, 2023, that was based on MOVES3.
Section 93.123(a)(1) of the transportation conformity regulation allows areas to develop alternate procedures for determining localized CO hot-spot analyses, when developed through interagency consultation and approved by the EPA Regional Administrator. Some states have chosen in the past to develop such procedures based on previous EPA emissions models.
During the MOVES4 grace period, areas with previously approved CO hot-spot protocols based on MOVES3 may continue to rely on these protocols. Once the MOVES4 two-year grace period ends, new CO hot-spot analyses for conformity purposes will need to be based on MOVES4. Previously approved SIP CO hot-spot protocols that are based on emissions models prior to MOVES3 can no longer be used for transportation conformity purposes.
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.
Comments must be received on or before October 12, 2023.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2023-0070, through the
Madison Le, Biopesticides and Pollution Prevention Division (BPPD) (7511M), main telephone number: (202) 566-1400, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
1.
2.
EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products.
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 December 7, 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; correction.
The Federal Communications Commission published a document in the
Lori Alexiou, (202) 418-2001, or
In the
Written comments are due on or before September 28, 2023. This computer matching program will commence on October 15, 2023, and will conclude on April 14, 2025.
Federal Mediation and Conciliation Service (FMCS).
Notice of senior executive service performance review board.
The Federal Mediation and Conciliation Service (FMCS) is issuing this notice to inform the public of the names of the members of the Agency's Senior Executive Service (SES) Performance Review Board.
This SES Performance Review Board is effective September 12, 2023.
Anna Davis, General Counsel, 202-606-3737,
Sec. 4314(c)(1) through (5) of title 5, U.S.C., requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more performance review boards. The board shall review and evaluate the initial appraisal of a senior executive's performance by the supervisor, along with any recommendations to the appointing authority relative to the performance of the senior executive.
The members of FMCS's Performance Review Board are:
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 27, 2023.
1.
Board of Governors of the Federal Reserve System.
Public Buildings Service (PBS), General Services Administration (GSA).
Notice of availability, Finding of No Practicable Alternative (FONPA).
This notice announces the availability of the revised Draft Environmental Impact Statement (DEIS), which examines the potential environmental impacts from the expansion and modernization of the Raul Hector Castro (RHC) Land Port of Entry (LPOE) in Douglas, Arizona and construction of a new Commercial LPOE to address various operational, capacity, and safety issues associated with the existing facility. Following issuance of the original DEIS in January 2023, GSA identified a third action alternative—Alternative 3—through internal scoping. Due to the change in the analysis, GSA is re-issuing a revised DEIS for public review during a 45-day comment period. The DEIS describes the purpose and need for the project; alternatives considered; the existing environment that could be affected; the potential impacts resulting from each of the alternatives; and proposed best management practices and/or mitigation measures. The revised DEIS also includes the revised Draft Finding of No Practicable Alternative (FONPA), which provides a floodplain assessment and statement of findings as a result of construction in a floodplain at the RHC LPOE.
•
•
Osmahn Kadri, NEPA Program Manager, GSA at 415-522-3617 or
The views and comments of the public are necessary in helping GSA in its decision-making process with impacts to environmental, cultural, and economic impacts. The meeting will be an informal open house, where visitors may speak with GSA representatives and provide written comments. No formal presentation will be provided. All comments received will be considered equally and will become part of the public record. Further information on the project, including an electronic copy of the revised DEIS, may also be found online at the following websites:
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
Notice is hereby given of a change in the meeting of the Board of Scientific Counselors, National Center for Injury Prevention and Control (BSC, NCIPC); September 20, 2023, first session from 1 p.m. to 2:30 p.m., EDT (OPEN), and second session from 2:30 p.m. to 4:30 p.m., EDT (CLOSED), in the original
Christopher R. Harper, Ph.D., Designated Federal Officer, Board of Scientific Counselors, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 4770 Buford Highway NE, Mailstop S-1069, Atlanta, Georgia 30341. Telephone: (404) 718-8330; Email:
The virtual meeting was published in the
This meeting is being canceled in its entirety.
The Director, Office of Strategic Business Initiatives, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Pursuant to 5 U.S.C. 1009(d), 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, and the Determination of the Director, Office of Strategic Business Initiatives, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463. 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.
The Director, Office of Strategic Business Initiatives, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by November 13, 2023.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
This revision package supports evaluation of the technical assistance provided by the QINQIO Program to nursing homes and outpatient clinicians in community settings, and Hospital Quality Improvement Contractors (HQIC) Program activities to support hospitals. This ICR is part of a larger evaluation of the overall impact of the NQIIC Program.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) permanently debarring Mayya Tatsene from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Ms. Tatsene was convicted of a felony under Federal law for conduct that relates to the regulation of any drug product under the FD&C Act. Ms. Tatsene was given notice of the proposed permanent debarment and was given an opportunity to request a hearing to show why she should not be debarred. As of July 8, 2023 (more than 30 days after receipt of the notice, as prescribed by regulation), Ms. Tatsene has not responded to the notice. Ms. Tatsene's failure to respond and request a hearing within the prescribed timeframe constitutes a waiver of her right to a hearing concerning this action.
This order is applicable September 12, 2023.
Any application by Ms. Tatsene for special termination of debarment under section 306(d)(4) of the FD&C Act (21 U.S.C. 335a(d)(4)) may be submitted as follows:
•
• If you want to submit an application with confidential
•
• For a written/paper application submitted to the Dockets Management Staff, FDA will post your application, as well as any attachments, except for information submitted, marked, and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit an application with confidential information that you do not wish to be made publicly available, submit your application only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of your application. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Jaime Espinosa, Division of Compliance and Enforcement, Office of Policy, Compliance, and Enforcement, Office of Regulatory Affairs, Food and Drug Administration, at 240-402-8743, or
Section 306(a)(2)(B) of the FD&C Act requires debarment of an individual from providing services in any capacity to a person that has an approved or pending drug product application if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act.
On January 10, 2023, Mayya Tatsene was convicted in the U. S. District Court for the Southern District of New York when the court entered judgment of conviction against her, after her plea of guilty, to one count of Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. 1349 and one count of Wire Fraud in violation of 18 U.S.C. 1343.
The underlying facts supporting the conviction are contained in the Information, entered into the docket on May 29, 2019, and from the transcript of Ms. Tatsene's guilty plea hearing which occurred on May 29, 2019. Ms. Tatsene was an employee of AMA Laboratories (AMA), a consumer product testing company in Rockland County, New York. At AMA, Ms. Tatsene was employed as the clinical laboratory director and, between 2005 and 2017, was in charge of the Repeat Insult Patch Test laboratory at AMA. AMA purported to test the safety and efficacy of cosmetics, sunscreens, and other products on specified numbers of volunteer panelists in exchange for fees paid by consumer products companies. The customers who engaged AMA to run these tests on their products used the results to determine whether those products were safe and effective. From at least in or about 2005, through in or about April 2017, Ms. Tatsene and AMA personnel defrauded AMA's customers in excess of $25 million by testing products on materially lower numbers of panelists than the numbers specified and paid for by AMA's customers. Ms. Tatsene and other AMA employees made materially false and misleading statements about the results of the tests to AMA's customers. Specifically, Ms. Tatsene and other AMA employees falsely represented to AMA's customers that AMA had tested the products on the number of panelists specified by the laboratory's customers. Ms. Tatsene and other AMA employees sent its customers laboratory results containing false information via interstate email and facsimile communications.
Based on this conviction, FDA sent Ms. Tatsene by certified mail on May 25, 2023, a notice proposing to permanently debar her from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Ms. Tatsene was convicted, as set forth in section 306(l)(1) of the FD&C Act, of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. The proposal also offered Ms. Tatsene an opportunity to request a hearing, providing her 30 days from the date of receipt of the letter in which to file the request, and advised her that failure to file a timely request for a hearing would constitute an election not to use the opportunity for a hearing and a waiver of any contentions concerning this action. Ms. Tatsene received the proposal on June 8, 2023. She did not request a hearing within the timeframe prescribed by regulation and has, therefore, waived her opportunity for a hearing and any contentions concerning her debarment (21 CFR part 12).
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Ms. Tatsene has been convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act.
As a result of the foregoing finding, Ms. Tatsene is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application, effective (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) is announcing the over-the-counter (OTC) monograph order request (OMOR) fee rates under the OTC monograph drug user fee program (OMUFA) for fiscal year (FY) 2024. The Federal Food, Drug, and Cosmetic Act (FD&C Act) authorizes FDA to assess and collect user fees from qualifying manufacturers of OTC monograph drugs and submitters of OMORs. This notice publishes the OMOR fee rates under OMUFA for FY 2024. FDA plans to publish the FY 2024 OMUFA facility fee rates in a subsequent
These fees are effective on October 1, 2023, and will remain in effect through September 30, 2024.
Olufunmilayo Ariyo, Office of Financial Management, Food and Drug Administration, 4041 Powder Mill Rd., 6th Floor, Beltsville, MD 20705-4304, 240-402-4989; or the User Fees Support Staff at
Section 744M of the FD&C Act (21 U.S.C. 379j-72), authorizes FDA to assess and collect: (1) facility fees from qualifying owners of OTC monograph drug facilities and (2) fees from submitters of qualifying OTC monograph order requests. These fees are to support FDA's OTC monograph drug activities, which are detailed in section 744L(6) of the FD&C Act (21 U.S.C. 379j-71(6)) and include various FDA activities associated with OTC monograph drugs.
For OMUFA purposes, an OTC monograph order request (OMOR) is a request for an administrative order, with respect to an OTC monograph drug, which is submitted under section 505G(b)(5) of the FD&C Act (see section 744L(7) of the FD&C Act). Given that OMOR fees are due on the date of submission of the OMOR,
Under section 744M(a)(2)(A) of the FD&C Act, the Agency is authorized to assess and collect fees from submitters of OMORs, except for OMORs that request certain safety-related changes (as discussed below). There are two levels of OMOR fees, based on whether the OMOR at issue is a Tier 1 or Tier 2 OMOR.
For FY 2024, the OMUFA fee rates are: Tier 1 OMOR fees ($537,471), Tier 2 OMOR fees ($107,494). These fees are effective for the period from October 1, 2023, through September 30, 2024. This document is issued pursuant to sections 744M(a)(4) and 744M(c)(4)(B) of the FD&C Act and describes the calculations used to set the OMUFA OMOR fees for FY 2024 in accordance with the directives in the statute.
Under OMUFA, the FY 2024 Tier 1 OMOR fee is $537,471 and the Tier 2 OMOR fee is $107,494, including an adjustment for inflation (see sections 744M(a)(2)(A)(i) and (ii) of the FD&C Act, respectively). OMOR fees are not included in the OMUFA target revenue calculation, which is based on the facility fees (see section 744M(b) of the FD&C Act).
An OMOR fee is generally assessed to each person who submits an OMOR (see section 744M(a)(2)(A) of the FD&C Act). OMOR fees are due on the date of the submission of the OMOR (see section 744M(a)(2)(B) of the FD&C Act). The payor should submit the OMOR fee that applies to the type of OMOR they are submitting (
An OMOR fee will not be assessed if the OMOR seeks to make certain safety changes with respect to an OTC monograph drug. Specifically, no fee will be assessed if FDA finds that the OMOR seeks to change the drug facts labeling of an OTC monograph drug in a way that would add to or strengthen: (1) a contraindication, warning, or precaution; (2) a statement about risk associated with misuse or abuse; or (3) an instruction about dosage and administration that is intended to increase the safe use of the OTC monograph drug (see section 744M(a)(2)(C) of the FD&C Act).
Under OMUFA, the OMOR fee is adjusted for inflation for FY 2022 and each subsequent fiscal year (see section 744M(c)(1)(B) of the FD&C Act). That provision states that the dollar amount of the inflation adjustment to the fee for OMORs is equal to the product of the applicable fee for the preceding fiscal year and the inflation adjustment percentage.
• (1) the average annual percent change in the cost, per full-time equivalent position of the FDA, of all personnel compensation and benefits paid with respect to such positions for the first 3 years of the preceding 4 fiscal years, multiplied by the proportion of personnel compensation and benefits costs to total costs of OTC monograph drug activities for the first 3 years of the preceding 4 fiscal years (see section 744M(c)(1)(C)(ii)(I) of the FD&C Act); and
• (2) the average annual percent change that occurred in the Consumer Price Index for urban consumers (Washington-Baltimore, DC-MD-VA-WV; Not Seasonally Adjusted; All items; Annual Index) for the first 3 years of the preceding 4 years of available data multiplied by the proportion of all costs
As a result of a geographical revision made by the Bureau of Labor and Statistics in January 2018, the “Washington, DC-Baltimore” index was discontinued and replaced with two separate indices (
Table 1 summarizes the actual cost and FTE data for the specified fiscal years, provides the percent changes from the previous fiscal years, and provides the average percent changes over the first 3 of the 4 fiscal years preceding FY 2024. The 3-year average is 3.9280 percent.
Under the statute, this 3.9280 percent would be multiplied by the proportion of PC&B costs to the total FDA costs of OTC monograph drug activities for the first 3 years of the preceding 4 fiscal years (see section 744M(c)(1)(C)(ii) of the FD&C Act). Because OMUFA was first authorized beginning with FY 2021, FDA used cost data of OTC monograph drug activities for the preceding 3 fiscal years (
Table 2 shows the PC&B and the total obligations for OTC monograph drug activities for the last 3 fiscal years.
The payroll adjustment is 3.9280 percent from table 1 multiplied by 56.1031 percent resulting in 2.2037 percent.
Table 3 provides the summary data for the percent changes in the specified CPI for the Washington-Arlington-Alexandria, DC-VA-MD-WV. The data are published by the Bureau of Labor Statistics on its website:
The statute specifies that this 3.8256 percent be multiplied by the proportion of all costs other than PC&B to total costs of OTC monograph drug activities. Because 56.1031 percent was obligated for PC&B (as shown in table 2), 43.8969 percent is the portion of costs other than PC&B (100 percent minus 56.1031 percent equals 43.8969 percent). The non-payroll adjustment is 3.8256 percent times 43.8969 percent, or 1.6793 percent.
Next, we add the payroll adjustment (2.2037 percent) to the non-payroll adjustment (1.6793 percent), for a total inflation adjustment of 3.8830 percent (rounded) for FY 2024.
Under section 744M(a)(2)(A) of the FD&C Act, each person that submits a
(1) For a Tier 1 OTC monograph order request, $500,000, adjusted for inflation for the fiscal year (see section 744M(c)(1)(B) of the FD&C Act); and
(2) For a Tier 2 OTC monograph order request, $100,000, adjusted for inflation for the fiscal year (see section 744M(c)(1)(B) of the FD&C Act).
In addition, under section 744M(c)(1)(B) of the FD&C Act and for purposes of section 744M(a)(2) of the FD&C Act, the dollar amount of the inflation adjustment to the fee for OMORs for FY 2022 and each subsequent fiscal year shall be equal to the product of:
(1) The applicable fee under section 744M(a)(2) of the FD&C Act for the preceding fiscal year; and
(2) The inflation adjustment percentage under section 744M(c)(1)(C) of the FD&C Act.
Thus, for FY 2024, the base of OMOR fees taken from the preceding fiscal year (
The fee rates for FY 2024 are displayed in Table 4.
The new OMOR fee rates are for the period from October 1, 2023, through September 30, 2024. To pay the OMOR fees, complete an OTC Monograph User Fee Cover Sheet, available at:
A user fee identification (ID) number will be generated. Payment must be made in U.S. currency by electronic check or wire transfer, payable to the order of the Food and Drug Administration. The preferred payment method is online using electronic check (Automated Clearing House (ACH) also known as eCheck) or credit card for payments under $25,000 (Discover, VISA, MasterCard, American Express).
FDA has partnered with the U.S. Department of the Treasury to use
For payments made by wire transfer, include the unique user fee ID number to ensure that the payment is applied to the correct fee(s). Without the unique user fee ID number, the payment may not be applied, which could result in FDA not filing an OMOR request, or other consequences of nonpayment. The originating financial institution may charge a wire transfer fee. Applicable wire transfer fees must be included with payment to ensure fees are fully paid. Questions about wire transfer fees should be addressed to the financial institution. The account information for wire transfers is as follows: U.S. Department of the Treasury, TREAS NYC, 33 Liberty St., New York, NY 10045, Acct. No.: 75060099, Routing No.: 021030004, SWIFT: FRNYUS33. If needed, FDA's tax identification number is 53-0196965.
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 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 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 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 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 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 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 a meeting of the Literature Selection Technical Review Committee.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend as well as those who need special assistance, such as sign language interpretation or other reasonable accommodations, must notify the Contact Person listed below in advance of the meeting. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
The meeting is devoted to the review and evaluation of journals for potential indexing by the National Library of Medicine and will be closed to the public in accordance with the provisions set forth in section 552b©(9)(B), Title 5 U.S.C., as amended. Premature disclosure of the titles of the journals as potential titles to be indexed by the National Library of Medicine, the discussions, and the presence of individuals associated with these publications could significantly frustrate the review and evaluation of individual journals.
In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice at least 10 days in advance of the meeting.
In the interest of security, NIH has procedures at
Information is also available on the Institute's/Center's home page:
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings of the National Institute of Arthritis and Musculoskeletal and Skin Diseases.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 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 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 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.
U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS).
Committee Management; Notice of Federal Advisory Committee Meeting.
U.S. Customs and Border Protection (CBP) is revising the notice published in the
The COAC will meet on Wednesday, September 20, 2023, from 1 to 5 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 p.m. EDT on September 19, 2023, at
Comments may be submitted by one of the following methods:
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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
On August 30, 2023, U.S. Customs and Border Protection (CBP) published a notice in the
For ease of reference, CBP is republishing the entirety of the August 30, 2023 notice, with the changes described.
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 proposed 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 proposed 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 proposed 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 proposed recommendation for the committee's consideration. The USMCA Chapter 7 Working Group meets bi-weekly with the expectation that proposed 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 six 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 and the newly formed De Minimis 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 will submit proposed recommendations 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. The De Minimis Working Group held their first meeting on August 22 and the group will submit proposed recommendations for the committee's consideration. Emerging risks have necessitated changes to
Meeting materials will be available by September 11, 2023, at:
Science and Technology Directorate (S&T), Department of Homeland Security (DHS).
Sixty-Day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the Department of Homeland Security (DHS) Science and Technology Directorate (S&T) intends to submit an Information Collection Requestion (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval for the collection of information. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, S&T is inviting comments as described below.
Comments much reach S&T on or before October 30, 2023.
You may submit comments identified by DHS docket number DHS-2023-0031 SAFETY Act to S&T using the Federal eRulemaking Portal at
Project Manager, Luz Irazabal.
Email Address,
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
S&T invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, S&T would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency.
In response to your comments, we may revise this ICR. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, DHS-2023-0031 SAFETY Act, and must be received by October 30, 2023.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
There is no cost to participants.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until November 13, 2023.
All submissions received must include the OMB Control Number 1615-0157 in the body of the letter, the agency name and Docket ID USCIS-2023-0004. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
This notice seeks comment on the USCIS Form I-134A information collection package, which DHS uses in connection with certain parole processes. In January 2023, at DHS's request, the Office of Management and Budget approved this new collection in accordance with emergency procedures set forth at 5 CFR 1320.13. DHS uses this collection to implement processes through which nationals of certain countries and their immediate family members may request to come to the United States in a safe and orderly way. The collection is an outgrowth of USCIS Form I-134 (OMB Control Number 1615-0014), and has been used in connection with Uniting for Ukraine; a new parole process for certain Cubans,
Under these processes, certain beneficiaries who are outside the United States and lack U.S. entry documents may be considered, on a case-by-case basis, for advance authorization to travel and a temporary period of parole for urgent humanitarian reasons or significant public benefit. To participate, eligible beneficiaries must:
• Have a supporter in the United States;
• Undergo and clear robust security vetting;
• Meet other eligibility criteria; and
• Warrant a favorable exercise of discretion.
Individuals participating in these processes must have a supporter in the United States who agrees to provide them with financial support for the duration of their parole in the United States. Prospective supporters submit a Form I-134A for each proposed parolee (beneficiary), including, if applicable, derivatives of the principal beneficiary, with USCIS through the USCIS online web portal to initiate the special parole or parole under the family reunification process. Form I-134A identifies and collects information on both the supporter and the beneficiary. The supporter must submit evidence establishing their income and assets and commit to provide financial support to the beneficiary for the duration of parole. A supporter filing under a family reunification parole process is also required to submit evidence establishing the family relationships between the principal beneficiary and all derivative beneficiaries. No fee is required to file Form I-134A. USCIS will perform background checks on the supporter and verify their financial information to ensure that the supporter is able to financially support the beneficiary. If the supporter's Form I-134A is confirmed, the beneficiary named in the Form I-134A will receive an email from
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate 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) Evaluate 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) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
Form I-134A is filed by a U.S.-based individual (the potential supporter) to request to be a supporter, agree to provide financial support to the beneficiary named on the form during the beneficiary's period of stay in the United States, and to provide information concerning why the beneficiary warrants a discretionary grant of parole.
(5)
(6)
(7)
USCIS specifically requests comments on the agency's estimate of the number of respondents who will submit Form I-134A, on average, in a given 12-month period. USCIS has added to the burden estimate for this collection, to account for any potential expansion(s) that align with new or revised policies or processing capacity over the next three years. USCIS also notes that the number of requests to be a supporter that USCIS is currently receiving exceeds our initial estimates. Anecdotal evidence indicates that supporters are submitting multiple, duplicate requests for the same beneficiary. USCIS welcomes public input on why supporters are creating duplicate requests to inform our estimates.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until November 13, 2023.
All submissions received must include the OMB Control Number 1615-0013 in the body of the letter, the agency name and Docket ID USCIS-2007-0045. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate 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) Evaluate 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) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Office of Policy Development and Research, 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
Anna Guido, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna Guido at
This notice informs the public that HUD is
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 comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
Bureau of Land Management, Department of the Interior.
Notice of realty action.
The Bureau of Land Management (BLM), Pinedale Field Office, received an application from Teton County, Wyoming, for lease or conveyance of 36.26 acres comprised of three public land parcels (referred to as Map Parcels 13, 14, and 26) located along the Snake River under the authority of the Recreation and Public Purposes Act (RPPA) as amended, to support the County's development of recreational facilities that will help meet existing and future expanding recreational needs in Teton County. The BLM examined the public land and determined that the parcels are suitable for classification for lease and subsequent conveyance under the provisions of the RPPA, as amended.
Interested parties may submit written comments regarding the proposed classification for lease and conveyance of the land until October 27, 2023.
Mail written comments for the Teton County action to the BLM Pinedale Field Office, Field Manager, P.O. Box 768, 1625 West Pine Street, Pinedale, WY 82941 or via email to
Tracy Hoover at the Pinedale address, by telephone at (307) 367-5342, or by email at
The RPPA allows the BLM to lease or convey public lands to local governments for development of recreation facilities or other public purposes if the identified lands are not needed for any Federal purpose and the lease or conveyance are consistent with approved BLM land use plans. The Teton County parcels (Map Parcels 13 and 14, and 26) are located along the Snake River near Jackson, Wyoming, and are legally described as:
The area described contains approximately 36.26 acres in Teton County, Wyoming.
Map Parcel 13, which consists of 10.94 acres, is currently authorized under a right-of-way, but facilities are not built yet. The proposed facilities are access roads, vehicle parking, recreation trails, boat ramp, and a wildlife migration corridor. The wildlife migration corridor involves coordination with Wyoming Department of Transportation (WYDOT) reconstruction of Highway 22. Map Parcel 13 would be completely developed within 5 years.
Map Parcel 14, which consists of 6.47 acres, is currently authorized under a right-of-way to build the current recreation facilities. Existing facilities on the parcel include a non-motorized pathway, recreational trails, vehicle parking, and access roads. A third (36%) of the parcel is currently encumbered by a highway and a utility right-of-way.
Map Parcel 26, which consists of 18.85 acres, is currently authorized under a right-of-way to build the current recreation facilities. Existing facilities on the parcel include vehicle circulation and parking areas, pedestrian and cyclist routes, park lawn, landscaping and irrigation, picnic shelters, park playground, public restroom facilities, kiosks, and a concrete plant ramp. Currently, the western portion is being utilized by WYDOT for a staging area for reconstruction of Highway 189/191. Teton County and WYDOT have an agreement for WYDOT to install an underpass pedestrian and vehicle tunnel. The western area will be developed once WYDOT has completed the highway project.
A map showing these parcels and additional detailed information pertaining to the environmental analysis, plan of development and site plan is available for review at the BLM Pinedale Field Office address in the
The proposed RPPA lease and subsequent conveyance is consistent with the BLM Snake River Resource Management Plan dated April 5, 2004. The lease and conveyance documents, if issued, would be subject to the provisions of the RPPA, including a reversionary clause and the following conditions:
1. a right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945);
2. all minerals, together with the right to prospect for, mine, and remove such deposits for the same under applicable law and such regulations as the Secretary of the Interior may prescribe;
3. terms or conditions required by law (including, but not limited to, any terms or conditions required by 43 CFR 2741.4, and as deemed necessary or appropriate by the Authorized Officer);
4. an appropriate indemnification clause protecting the United States from claims arising out of the lessee's/patentee's use, occupancy, or operations on the leased/patented lands; and
5. subject to valid existing rights.
Upon publication of this notice in the
Interested parties may submit written comments regarding the specific use proposed in the applications, plans of development, site plans, and whether the BLM followed proper administrative procedures in reaching the decision to lease and convey under the RPPA. Comments may also address the suitability for classification of the lands for recreational facilities in Teton County and whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or if the use is consistent with State and Federal programs.
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. Only written comments submitted to the Field Manager, BLM Pinedale Field Office, will be considered properly filed. Any adverse comments will be considered protests and will be reviewed by the BLM Wyoming State Director, who may sustain, vacate, or modify this realty action.
In the absence of any adverse comments, the decision will become effective on November 13, 2023. The lands will not be available for lease and conveyance until after the decision becomes effective.
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management's (BLM) Western Montana Resource Advisory Council (Council) will meet as follows.
The Council will participate in a field tour on October 2 and host a business meeting on October 3, 2023. A virtual participation option will be available. The field tour and business meeting will start at 9 a.m. Mountain Time (MT) and conclude at 4 p.m. MT. The meeting and field tour are open to the public.
The October 2 field tour will commence and conclude at the Dillon Field Office located at 1005 Selway Dr., Dillon, MT 59725, and the meeting will be held at the same location. Individuals who prefer to participate virtually in the meeting must register in advance. Registration information will be posted 2 weeks in advance of the meeting on the Council's web page at
Written comments for the Council may be sent electronically in advance of
David Abrams, BLM Western Montana District Office, telephone: (406) 437-2562, email:
The Council provides recommendations to the Secretary of the Interior concerning the planning and management of the public land resources located within the BLM's Western Montana District. The Council will participate in a field tour on October 2 to public land sites within the Council's purview. Members of the public are welcome on field tours but must provide their own transportation and meals. Individuals who plan to attend and need special assistance, such as sign language interpretation and other reasonable accommodations, should contact the BLM (see
A public comment period will be offered October 3 at 3:30 p.m. MT. Depending on the number of persons wishing to speak and the time available, the amount of time for oral comments may be limited.
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. While the field tour and business meeting are scheduled from 9 a.m. to 4 p.m., they may end earlier or later depending on the needs of group members. Therefore, members of the public interested in a specific agenda item or discussion at the October 3 meeting should schedule their arrival accordingly.
Detailed minutes for Council meetings will be maintained in the BLM Western Montana District Office. Minutes will also be posted to the Council's web page at
Bureau of Land Management, Interior.
Notice of official filing.
The plat of survey of the following described lands is scheduled to be officially filed in the Bureau of land Management (BLM), Eastern States Office, Falls Church, Virginia, 30 days from the date of this publication. The survey, executed at the request of the Southeastern States District Office, BLM—Eastern States, is required for the management of these lands.
Unless there are protests of this action, the filing of the plat described in this notice will happen 30 days after publication of this notice in the
Written notices protesting the survey must be sent to the State Director, BLM Eastern States, 5275 Leesburg Pike, Falls Church, Virginia 22041.
Frank D. Radford, Chief Cadastral Surveyor for Eastern States; (703) 558-7759; email:
The dependent resurvey of a portion of the subdivisional lines and the survey of the meanders of the Lagrange Bayou in Lot 8 of Section 27, Township 1 South, Range 19 West.
A person or party who wishes to protest a survey must file a written notice of protest within 30 calendar days from the date of this publication at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your notice of protest or statement of reasons, please be aware that your entire protest, 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.
A copy of the described plats will be placed in the open files, and available to the public, as a matter of information.
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) proposes to renew an information collection.
Interested persons are invited to submit comments on or before November 13, 2023.
Send your written comments on this information collection request (ICR) by mail to Darrin King, Information Collection Clearance Officer, U.S. Department of the Interior, Bureau of Land Management, Attention PRA Office, 440 W 200 S #500, Salt Lake City, UT 84101; or by email to
To request additional information about this ICR, contact Sabry Hanna by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies 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 especially interested in public comment addressing the following:
(1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How the agency might minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and, notwithstanding any other provision of law, a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the David A. Fredrickson Archaeological Collections Facility at Sonoma State University intends to repatriate a certain cultural item that meets the definition of an object of cultural patrimony and that has a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural item was removed from Sutter County, CA.
Repatriation of the cultural item in this notice may occur on or after October 12, 2023.
Doshia Dodd, David A. Fredrickson Archaeological Collections Facility at Sonoma State University, 1801 East Cotati Avenue, Building 29, Rohnert Park, CA 94928, telephone (530) 514-8472, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the David A. Fredrickson Archaeological Collections Facility at Sonoma State University. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the David A. Fredrickson Archaeological Collections Facility at Sonoma State University.
One cultural item (Accession Number 91-29) was removed from archeological site CA-SUT-17 in Sutter County, CA, in 1991. The object of cultural patrimony is one lot consisting of flaked stone tools and debitage; faunal bone tools; groundstone objects; shell beads; and unmodified faunal bones and shells.
The cultural item in this notice is connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, geographical, historical, and expert opinion in the form of Tribal Traditional Knowledge.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the David A. Fredrickson Archaeological Collections Facility at Sonoma State University has determined that:
• The one cultural item described above has ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural item and the United Auburn Indian Community of the Auburn Rancheria of California.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after October 12, 2023. If competing requests for repatriation are received, the David A. Fredrickson Archaeological Collections Facility at Sonoma State University must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The David A. Fredrickson Archaeological Collections Facility at Sonoma State University is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), Michigan State University intends to repatriate certain cultural items that meet the definition of unassociated funerary objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural items were removed from Mackinac County, MI.
Repatriation of the cultural items in this notice may occur on or after October 12, 2023.
Judith Stoddart, Michigan State University, 287 Delta Court, East Lansing, MI 48824, telephone (517) 432-2524, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of Michigan State University. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by Michigan State University.
The 381 cultural items were removed from Mackinac County, MI. Beginning in 1958, these objects were removed from the Gros Cap Archaeological District in Mackinac County, MI. Sites and localities within the District and surrounding area include the Gros Cap site (20MK6), the Campfire Site (20MK7), the post-contact era Gros Cap Cemetery, “Ryerse Beach Cottage,” “Graham Point,” and “Killarney Beach.” The objects were acquired by Orlando Greenlees. On at least one occasion, Greenlees acquired Native American cultural items from other individuals, including a Mr. Bicknell. Mr. Greenlees owned the property adjacent to the Gros Cap Cemetery and served as its caretaker. In 1970, Alicia Mackin acquired Greenlees' collection, and on April 12, 1976, she donated it to Michigan State University Museum.
The 381 unassociated funerary objects are five catlinite beads (3901.18.3.5; 3901.18.3.6; No catalog #), three catlinite pipe fragments (3901.18.2.6; 3901.26.5; 3901.26.13), one catlinite effigy pipe fragment (3901.18.3.1), three catlinite beaver effigies (3901.18.3.2), three catlinite pendant fragments (3901.18.3.3; 3901.18.3.4; 3901.18.3.8), one catlinite cross effigy (3901.18.3.7), one stone pipe fragment (3901.24.5), nine clay pipe bowl and stem fragments (3901.26.2; 3901.26.3; 3901.26.4; 3901.26.8; 3901.26.9; 3901.26.10; 3901.26.11; 3901.26.12; 3901.30.12), one Scottish pipe fragment (3901.26.7), one French pipe bowl fragment (3901.26.1), one ceramic pipe bowl with incising (3901.28.18), six lots consisting of ceramic sherds (3901.15.7; 3901.22.19; 3901.32.17; 3901.33.19; 3901.99.5), two refit ceramic vessels (3901.15.6/3901.99.4 and 3901.12.14/3901.15.7/3901.99.4/3901.99.5), 14 grit tempered ceramic sherds (3901.12.13; 3901.12.15; 3901.12.16; 3901.15.5; 3901.15.6; 3901.18.5.5; 3901.30.14; 3901.30.15; 3901.30.16; 3901.30.17; 3901.99.6; 3901.99.7; 3901.99.8; 3901.99.9), one copper bracelet (3901.18.2.4), one copper nugget (3901.22.17), two copper sheet sections (3901.30.13), two copper hair pullers (3901.33.12; 3901.33.13), two lots of copper strips (3901.15.8; 3901.22.21), two copper axe heads (3901.24.9; 3901.25.1), two lots consisting of copper beads (3901.22.22; 3901.24.10), three lots consisting of rolled copper kettle fragments (3901.22.20; 3901.30.23; 3901.33.16), one copper handle cover (3901.27.19); one copper kettle (3901.101); one copper kettle latch (3901.15.10), three lots consisting of copper tinkling cones (3901.15.9; 3901.22.23; 3901.31.7), three lots consisting of copper scrap (3901.31.8; 3901.99.3), 12 lots consisting of animal bones (3901.12.9; 3901.27.2; 3901.27.5; 3901.28.16; 3901.28.17; 3901.30.20; 3901.30.21; 3901.31.4; 3901.31.5; 3901.33.24; 3901.34.9; 3901.100.1), two lots consisting of burnt animal bones (3901.15.14; 3901.32.15), three lots consisting of animal teeth (3901.26.21; 3901.26.23; 3901.27.7), five lots consisting of worked animal bones (3901.27.9; 3901.27.11; 3901.27.12; 3901.27.13; 3901.32.14), three lots consisting of bird bones (3901.26.20; 3901.33.18; 3901.34.10), one lot consisting of turtle shells (3901.27.8), 11 lots consisting of fish bones (3901.18.5.4; 3901.27.4; 3901.30.2; 3901.30.6; 3901.30.7; 3901.31.3; 3901.34.8), six lots consisting of sturgeon bones (3901.12.8; 3901.15.4; 3901.27.1; 3901.31.2), three beaver mandible fragments (3901.12.12; 3901.26.17; 3901.30.8), two beaver incisors (3901.30.9), two eagle talons (3901.26.18), one boar tusk (3901.26.19), one raccoon mandible (3901.20.8), one deer tibia (2901.18.2.5), seven lots consisting of dog mandibles and teeth (3901.15.1; 3901.15.2; 3901.15.3; 3901.26.22; 3901.27.3; 3901.30.3; 3901.30.10), one piece of cut antler (3901.12.11), one small animal horn (3901.26.24), two bone needles (3901.18.4.1; 3901.18.4.2), one bone gorge (3901.28.14); one bone wedding spoon with birds on handle (3901.18.5.2), two bone awls (3901.28.13; 3901.34.7), five bone points (3901.28.8; 3901.28.9; 3901.28.10; 3901.28.11; 3901.28.12), four bone flakers (3901.28.4; 3901.28.5; 3901.28.6; 3901.28.7), one antler scraper (3901.24.3), one antler gorge (3901.28.15), one antler pressure flaker (3901.12.10), one bone carving (3901.33.2), one bone bracelet (3901.18.2.3), one bone knife (3901.18.2.2), one bone effigy of a standing man (3901.33.17), one carved bone comb (3901.26.15), four bone harpoon heads (3901.27.10; 3901.28.1; 3901.28.2; 3901.28.3), one carved boar tusk with hand and heart design (3901.26.16), two lots consisting of rolled birch bark fragments (3901.18.5.1; 3901.22.18), one piece of leather with bell attached (3901.22.28), one band of woven fibers with copper (3901.18.5.3), two lots consisting of fiber pieces (3901.22.29; 3901.31.11), 12 hand forged nails (3901.12.17; 3901.15.11; 3901.27.18; 3901.31.10; 3901.33.1), 10 square nails (3901.30.19 (n=2); 3901.34.22 (n=8)), one piece of decorative metal (3901.33.21), four lots consisting of iron and iron scrap (3901.31.9; 3901.33.22; 3901.34.24; 3901.100.5), two lots consisting of metal pieces and scrap (3901.12.7; 3901.27.17), one thin metal rod (3091.33.3), one iron rod fragment (3901.23.1), one shell (3901.27.6), three shell runtees (3901.33.6; 3901.33.7; 3901.33.8), two shell runtee fish effigies (3901.33.9; 3901.33.10), one shell standing man effigy (3901.34.11), two shell/bone ornaments (3901.18.2.6), three lots consisting of glass trade beads in various colors (3901.18.2.1; 3901.33.20), one lot consisting of black glass beads (3901.22.3), three lots consisting of blue glass trade beads (3901.22.13; 3901.22.14; 3901.27.23), one lot consisting of blue and white glass trade beads (3901.22.2), one lot consisting of brown glass trade beads (3901.22.12), two lots consisting of clear glass beads (3901.22.1; 3901.27.22), one lot consisting of green glass trade beads (3901.22.4), one lot consisting of light green glass trade beads (3901.22.9), two lots consisting of navy blue glass trade beads (3901.22.8; 3901.22.15), one lot consisting of red glass trade beads (3901.22.10), one lot consisting of red/amber glass trade beads (3901.22.7), one lot consisting of turquoise glass beads (3901.30.25), four lots consisting of white glass trade beads (3901.22.5; 3901.22.6; 3901.22.11; 3901.30.24), one lot consisting of yellow glass trade beads (3901.22.16), one lot consisting of chipped glass (3901.33.23); one lot consisting of melted glass (3901.33.25); four lots consisting of red ochre (3901.22.26; 3901.26.14; 3901.32.18; 3901.34.14), nine bifaces (3901.23.6; 3901.24.4; 3901.24.6; 3901.24.7; 3901.25.19; 3901.25.20; 3901.25.21; 3901.25.22; 3901.33.11), one flint drill (3901.25.5), one argillite projectile point (3901.25.18), 40 projectile points (3901.15.12; 3901.23.7; 3901.23.10; 3901.23.11; 3901.23.12; 3901.23.13; 3901.23.14; 3901.23.15; 3901.23.16; 3901.23.17; 3901.23.18; 3901.23.19; 3901.23.20; 3901.23.21; 3901.23.22; 3901.23.23; 3901.23.24; 3901.23.25; 3901.23.26; 3901.23.27; 3901.23.28; 3901.23.29; 3901.23.30; 3901.23.31; 3901.23.32; 3901.23.33; 3901.23.34; 3901.23.35; 3901.23.36; 3901.25.7; 3901.25.8; 3901.25.9; 3901.25.10; 3901.25.11; 3901.25.12; 3901.25.13; 3901.25.14; 3901.25.15; 3901.25.16; 3901.25.17), 9 flakes (3901.23.8; 3901.23.9; 3901.25.23; 3901.27.20; 3901.27.21; 2901.30.22; 3901.99.1; 3901.100.2; 3901.100.3), two slate pendants (3901.25.3; 3901.25.4), one stone ball (3901.30.4), one stone gorget (3901.25.2), one side notched stone gorget (3901.24.1), three stone pipe fragments (3901.25.6; 3901.26.6; 3901.28.19), one stone plummet (3901.24.2), two stones used for pottery temper (3901.30.1), one stone tamper (3901.27.24), one smooth stone (3901.30.11), one translucent stone pendant (3901.33.5), one piece of worked stone (3901.24.8), one piece of granite temper (3901.22.25), one soapstone fragment (3901.18.3.9), nine brass Jesuit rings (3901.18.1.1), one uniform braid (3901.29.3), four brass hawkbells (3901.18.1.2), one lot consisting of brass scrap (3901.99.2), 16 iron knives and fragments (3901.12.1; 3901.12.2; 3901.12.3; 3901.12.4; 3901.12.5; 3901.12.6; 3901.27.14; 3901.27.15; 3901.30.5 (n=2); 3901.32.16; 3901.34.16; 3901.34.17; 3901.34.18; 3901.34.19), one iron strike-a-lite (3901.22.24), two metal awls (3901.27.16; 3901.30.18), one gun fragment (3901.33.14), four French honey-colored gunflints (3901.23.2; 3901.23.3; 3901.23.4; 3901.33.4), one
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological, geographical, historical, oral traditional, and expert opinion.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, Michigan State University has determined that:
• The 381 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and the Bay Mills Indian Community, Michigan; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Pokagon Band of Potawatomi Indians, Michigan and Indiana; Saginaw Chippewa Indian Tribe of Michigan; and the Sault Ste. Marie Tribe of Chippewa Indians.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after October 12, 2023. If competing requests for repatriation are received, Michigan State University must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. Michigan State University is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Witte Museum has completed an inventory of human remains and associated funerary objects and has determined that there is no cultural affiliation between the human remains and associated funerary objects and any Indian Tribe or Native Hawaiian organization. The human remains and associated funerary objects were removed from Val Verde County, TX.
Re-interment of the human remains and associated funerary objects in this notice may occur on or after October 12, 2023.
Jennifer Barron, Witte Museum, 3801 Broadway Street, San Antonio, TX 78209, telephone (210) 357-1900, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Witte Museum. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Witte Museum.
From 1931 to 1969, human remains representing, at minimum, 25 individuals were recovered during multiple excavations, some organized by the Southwest Texas Archaeological Society and/or the Witte Museum from sites that include Shumla Caves 1-8, Eagle Cave, Jacal Canyon, and Zubermiller Cave in Val Verde County, TX. These human remains belong to six adult males, three adult females, one juvenile, seven infants, and eight individuals of indeterminate age and/or sex. They date to the Archaic period. The one associated funerary object is one lot consisting of “shaman's kit.”
In the 1930s, human remains representing, at minimum, one individual were collected by George Nalle II during an excavation in the Lower Pecos Canyonlands in Val Verde County, TX. In 2018, these human remains were given to the Witte Museum. They date to the Archaic period. No associated funerary objects are present.
Sometime prior to 1969, human remains representing, at minimum, one individual were collected from the Fate Bell Shelter in Val Verde County, TX. These human remains date to the Archaic period. No associated funerary objects are present.
Sometime prior to 1969, human remains representing, at minimum, five individuals were collected by Richard and Ben McReynolds from sites in Val Verde Canyon in Val Verde County, TX, including a shelter in Deadman's Canyon. In 2019, these human remains were given to the Witte Museum. They date to the Archaic period. No associated funerary objects are present.
The human remains and associated funerary objects in this notice were removed from known geographic locations. These locations are the aboriginal lands of one or more Indian Tribes. The following information was used to identify the aboriginal land: treaties, Acts of Congress, and Executive Orders.
The Witte Museum consulted with all Indian Tribes who are aboriginal to the area from which these human remains and associated funerary objects were removed. None of these Indian Tribes agreed to accept control of the human remains and associated funerary objects.
The Witte Museum requested that the Secretary, through the Native American Graves Protection and Repatriation Review Committee (Review Committee), consider a proposal for the re-interment according to State or other law of the human remains and associated funerary objects in this notice. The Review Committee carefully considered the request at its June 2023 meeting and recommended to the Secretary that the proposed re-interment proceed. A July 2023 letter transmitted the Secretary's independent review and concurrence with the Review Committee that:
• the Witte Museum consulted with the appropriate Indian Tribes,
• none of the Indian Tribes agreed to accept control,
• none of the Indian Tribes objected to the proposed re-interment, and
• the Witte Museum may proceed with the proposed re-interment of the human remains and associated funerary objects as identified in the Determinations section.
Re-interment is contingent on the publication of a Notice of Inventory Completion in the
Pursuant to NAGPRA and its implementing regulations, and after consultation with the Indian Tribes identified in this notice, the Witte Museum has determined that:
• The human remains described in this notice are Native American based on their precontact, Archaic period date.
• The human remains described in this notice represent the physical remains of 32 individuals of Native American ancestry.
• The one object described in this notice is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• No relationship of shared group identity can be reasonably traced between the Native American human remains and associated funerary objects and any Indian Tribe or Native Hawaiian organization.
• The human remains and associated funerary objects described in this notice were removed from the aboriginal land of the Comanche Nation, Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; and the Wichita and Affiliated Tribes (Wichita, Keechi, Waco, & Tawakonie), Oklahoma.
• The human remains and associated funerary objects will be re-interred according to the law of Val Verde County, TX.
Written requests for disposition of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization, or who shows that the requestor is an aboriginal land Indian Tribe.
Re-interment of the human remains and associated funerary objects described in this notice may occur on or after October 12, 2023. If requests for disposition are received, the Witte Museum must determine the most appropriate requestor prior to disposition or re-interment. Requests for joint disposition of the human remains and associated funerary objects are considered a single request and not competing requests. The Witte Museum is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Missouri Department of Natural Resources (MoDNR) has completed an inventory of human remains and has determined that there is a cultural affiliation between the human remains and Indian Tribes or Native Hawaiian organizations in this notice. The human remains were removed from McDonald County, MO.
Repatriation of the human remains in this notice may occur on or after October 12, 2023.
Caroline Crecelius, Repatriation Coordinator, Missouri Department of Natural Resources, Division of State Parks, 1659 E Elm Street, Jefferson City, MO 65101, telephone (573) 526-4249, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of MoDNR. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by MoDNR.
Human remains representing, at minimum, one individual were removed from McDonald County, MO. These human remains (a partial, fragmented skull) were removed from private property by Lieutenant Andy Pike of the Newton County Sheriff's Office, who in turn transferred them to Detective Pierson at the McDonald County Sheriff's Office. Following a determination that they were not part of an active criminal case, Detective Pierson transferred the human remains to the Missouri State Historic Preservation Office. Based on the opinion of a regional archeologist, the human remains date to the Late Woodland period (about 1550-950 years
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological, geographical, historical, linguistic, and oral traditional.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, MoDNR has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• There is a relationship of shared group identity that can be reasonably traced between the human remains described in this notice and the Caddo Nation of Oklahoma and The Osage Nation.
Written requests for repatriation of the human remains in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains in this notice to a requestor may occur on or after October 12, 2023. If competing requests for repatriation are received, MoDNR must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains are considered a single request and not competing requests. MoDNR is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before November 13, 2023.
Send your comments on this information collection request (ICR) by mail to Mark Gehlhar, Office of Surface Mining Reclamation and Enforcement, 1849 C Street NW, Room 4556-MIB, Washington, DC 20240, or by email to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
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 agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency 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. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
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
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before October 12, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. 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
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before November 13, 2023.
Send your comments on this information collection request (ICR) by mail to Mark Gehlhar, Office of Surface Mining Reclamation and Enforcement, 1849 C Street NW, Room 4556-MIB, Washington, DC 20240, or by email to
To request additional information about this ICR, contact Mark Gehlhar by email at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
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 agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency 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. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
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
On September 6, 2023, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Southern District of Texas in
In this action, the United States, on behalf of the U.S. Environmental Protection Agency, filed a complaint alleging that Transocean Offshore Deepwater Drilling Inc. (“Defendant”) violated the Clean Water Act (“CWA”), 33 U.S.C. 1251,
Under the proposed settlement, Defendant agrees to pay a civil penalty of $507,000 and to develop and implement a compliance system to ensure future compliance with the CWA and the General Permit. The compliance system will be subject to review by a third-party verifier.
The publication of this notice opens a period for public comment on the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $40.25 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employment and Training Administration (ETA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before October 12, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Michael Howell by telephone at 202-693-6782, or by email at
State Workforce Agencies (SWAs) are required by Federal regulations at 20 CFR 653.500 to participate in the intrastate and interstate clearance system for the orderly recruitment and movement of agricultural workers. Wagner-Peyser Employment Service (ES) regulations at § 653.501(a), (b), (c) and (d) enumerate the contents of these orders. The Employment and Training Administration (ETA) created the Agricultural Clearance Order (Form ETA-790) for the recruitment of workers beyond the local commuting area (20 CFR 653.501). Per 2 CFR 200.334, the record retention for Form ETA-790 is three years from the date of submission of the final expenditure report as authorized by DOL. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Mine Safety and Health Administration (MSHA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before October 12, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3)
Michael Howell by telephone at 202-693-6782, or by email at
Sections 101(a) and 103(h) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 811(a) and 813(h), authorizes MSHA to collect information necessary to carryout its duty in protecting the safety and health of miners. MSHA requires that certain records be kept in connection with respirators, including: written standard operating procedures governing the selection and use of respirators; records of the date of issuance of the respirator; and fit-test results. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Mine Safety and Health Administration (MSHA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before October 12, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Michael Howell by telephone at 202-693-6782, or by email at
Title 30 CFR 71.400 through 71.402 and 75.1712-1 through 75.1712-3 require coal mine operators to provide bathing facilities, clothing change rooms, and sanitary flush toilet facilities in a location that is convenient for use of the miners. If the operator is unable to meet any or all of the requirements, he/she may apply for a waiver. Title 30 CFR 71.403, 71.404, 75.1712-4, and 75.1712-5 provide procedures by which an operator may apply for and be granted a waiver. Applications are filed with the District Manager for the district in which the mine is located and must contain the name and address of the mine operator, name and location of the mine, and a detailed statement of the grounds on which the waiver is requested. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Office of Workers' Compensation Programs (OWCP)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with
The OMB will consider all written comments that the agency receives on or before October 12, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Michelle Neary by telephone at 202-693-6312, or by email at
The CA-721 and CA-722 are used for filing claims for compensation for injury and death to non-Federal law enforcement officers under the provisions of 5 U.S.C. 8191
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employment and Training Administration (ETA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before October 12, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Michael Howell by telephone at 202-693-6782, or by email at
Form ETA-227 is a quarterly data collection concerned with identifying fraud. Data cells describe fraud identified through tools (State and National Directories of New Hires) and break out fraud cases in the Federal-State Extended Benefits program. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
Division of Federal Employees', Longshore and Harbor Workers' Compensation (DFELHWC), Office of Workers' Compensation Programs, Department of Labor.
Request for public comments.
The Department of Labor (DOL), 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. OWCP/DFELHWC is soliciting comments on the information collection for “Employer's First Report of Injury or Occupational Illness (LS-202), Employer's Supplementary Report of Accident or Occupational Illness (LS-210).”
Consideration will be given to all written comments received by November 13, 2023.
You may submit comment as follows. Please note that late, untimely filed comments will not be considered.
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• OWCP/DFELHWC will post your comment as well as any attachments, except for information submitted and marked as confidential, in the docket at
Contact Anjanette Suggs, Office of Workers' Compensation Programs, OWCP at
The Office of Workers' Compensation Programs administers the Longshore and Harbor Workers' Compensation Act. The Act provides benefits to workers' injured in maritime employment on the navigable waters of the United States or in an adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel. In addition, several acts extend the Longshore Act's coverage to certain other employees. Legal authority for this information collection is found at 33 U.S.C. 930(a) and (b).
The LS-202 is used by employers initially to report injuries that have occurred which are covered under the Longshore Act and its related statutes. The LS-210 is used to report additional periods of lost time from work.
The OWCP/DFELHWC is soliciting comments concerning the proposed information collection request (ICR) titled, “Employer's First Report of Injury or Occupational Illness (LS-202), Employer's Supplementary Report of Accident or Occupational Illness (LS-210).”
OWCP/DFELHWC is particularly interested in comments that:
• Evaluate 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.
• Evaluate the accuracy of OWCP/DFELHWC's estimate of the burden of the proposed collection of information, 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 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,
Background documents related to this information collection request are available at
This information collection request concerns the “Pre-Hearing Statement (LS-18).” 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
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the
Thursday, October 19, 2023, 9:00 a.m.-5:00 p.m., Friday, October 20, 2023, 9:00 a.m.-5:00 p.m., Eastern Time.
Public attendance will be virtual only. See dial-in and Webex information below under
Ms. KarShelia Kinard, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355 or
As noted above, this meeting is virtual and will take place telephonically and via Webex. Any interested person must use a touch-tone phone to participate in this meeting. The Webex connectivity information for each day is provided below. For audio, when you join the Webex event, you may use your computer or provide your phone number to receive a call back, otherwise, call the U.S. toll conference number listed for each day.
For Thursday, October 19, 2023, the WebEx information for attendees is:
For Friday, October 20, 2023, the WebEx information for attendees is:
The agenda for the meeting includes the following topics:
The agenda and Program Analysis Group presentations will be posted on the Astrophysics Advisory Committee web page:
The public may submit and upvote comments/questions ahead of the meeting through the website: APAC Fall Meeting—NASA (cnf.io), or
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration (NASA).
Notice of charter renewals for four NASA Federal advisory committees.
Pursuant to the Federal Advisory Committee Act (FACA), and after consultation with the Committee Management Secretariat, General Services Administration, the NASA Administrator has determined that renewal of the charters of four NASA Federal advisory committees is in the public interest in connection with the performance of duties imposed on NASA by law. These four advisory committees are: Astrophysics Advisory Committee, Earth Science Advisory Committee, Heliophysics Advisory Committee, and Planetary Science Advisory Committee. The renewed charters are for a two-year period ending August 30, 2025.
Ms. Patricia Diane Rausch, NASA Advisory Committee Management Officer, NASA Headquarters, Washington, DC 20546; or 202-358-4510 or
National Credit Union Administration (NCUA).
Notice and request for comments.
The National Credit Union Administration (NCUA) 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.
Written comments should be received on or before November 13, 2023 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Mahala Vixamar, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314, Suite 5067; Fax No. 703-519-8579; or Email at
Copies of the submission may be obtained by contacting Mahala Vixamar at (703) 718-1155.
By the National Credit Union Administration Board.
National Credit Union Administration (NCUA).
Notice of submission to the Office of Management and Budget.
As required by the Paperwork Reduction Act of 1995, The National Credit Union Administration (NCUA) is submitting the following extensions and revisions of currently approved collections to the Office of Management and Budget (OMB) for renewal.
Written comments should be received on or before October 12, 2023 to be assured consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submission may be obtained by contacting Mahala Vixamar at (703) 718-1155, emailing
By the National Credit Union Administration Board.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a proposed collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Regulatory Issue Summary 2009-06, Revision 1, Importance of Giving the NRC Advance Notice of Intent to Pursue License Renewal.”
Submit comments by October 12, 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.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
David C. Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2022-0051 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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Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
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 OMB, 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.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a proposed collection of information to OMB for review entitled “Regulatory Issue Summary 2009-06, Revision 1, Importance of Giving the NRC Advance Notice of Intent to Pursue License Renewal.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
On May 23, 2023, NYSE Arca, Inc. filed with the Securities and Exchange Commission (“Commission” or “NYSE Arca”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On July 25, 2023, pursuant to Section 19(b)(2) of the Act,
As described in more detail in the Notice,
The investment objective of the Trust will be for the Shares to reflect the performance of the price of EU Carbon Emission Allowances for stationary installations (“EUAs”), less the Trust's expenses.
The Trust will not invest in futures, options, or swap contracts on any futures exchange or in the over-the-counter market. The Trust will not hold or trade in commodity futures contracts, “commodity interests,” or any other instruments regulated by the Commodity Exchange Act. As stated above, the Trust's Cash Custodian may hold cash proceeds from EUA sales to pay Trust expenses. All EUAs will be held in the Union Registry (defined below). The Exchange states that the Trust is not a proxy for investing in physical carbon credits. Rather, according to the Exchange, the Shares are intended to provide a cost-effective means of obtaining investment exposure to the price of EUAs through the securities markets that is similar to an investment in futures contracts or other derivatives.
According to the Exchange, the European Union Emissions Trading System (“EU ETS”) is a “cap and trade” system that caps the total volume of greenhouse gas (“GHG”) emissions from installations and aircraft operators responsible for around 40% of EU GHG emissions.
In 2012, EU ETS operations were centralized into a single EU registry operated by the EU Commission (“Union Registry”), which covers all countries participating in the EU ETS.
According to the Exchange, there are two primary avenues for trading EUAs: a primary market and a secondary market. The primary market involves participation in a regularly scheduled auction.
The Exchange represents that the EUA markets are generally liquid. EUA auctions are held on a near-daily basis throughout the year, other than between mid-December to mid-January, when auctions are paused.
The secondary market trading takes place predominantly on the European Energy Exchange AG (“EEX”) and ICE Endex.
Most liquidity in the secondary market is achieved by trading futures contracts. These contracts have expiration going out as far as 2030. The most liquid contract is the single day futures contract on EUAs (“Daily EUA Future”), which settles each day at the close of trading.
In 2021, the secondary spot market for EUAs (including the Daily EUA Future) averaged around 2.4 million EUAs daily, and the primary auctions accounted for almost 2.5 million EUAs being auctioned several times per week.
The Trust's NAV is calculated by taking the current market value of its total assets, less any liabilities of the Trust, and dividing that total by the total number of outstanding Shares. The Administrator will calculate the NAV of the Trust once each Exchange trading day. The NAV for a normal trading day will be released after the end of the Core Trading Session, which is typically 4:00 p.m. New York time. The NAV for the Trust's Shares will be disseminated daily to all market participants at the same time. The Administrator will use the settlement price for the Daily EUA Futures established by ICE Endex to calculate the NAV.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice,
• According to the Exchange, the investment objective of the Trust will be for the Shares to reflect the performance of the price of EUAs, and that the Trust intends to achieve its objective by investing all of its assets in EUAs on a non-discretionary basis and will not hold or trade in commodity futures contracts.
• The Exchange asserts that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Rule 8.201-E. What are commenters' views on whether the proposed Trust and Shares would be susceptible to manipulation? What are commenters' views generally on whether the Exchange's proposal is designed to prevent fraudulent and manipulative acts and practices?
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, and the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change should be approved or disapproved by October 3, 2023. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by October 17, 2023.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 11A(a)(3) of the Securities Exchange Act of 1934
The Plan requires the options exchanges to establish a framework for providing order protection and addressing locked and crossed markets in eligible options classes. The amendment to the Plan adds MEMX as a Participant. The other Plan Participants are BATS, BOX, BX, C2, CBOE, EDGX, Emerald, ISE, ISE Gemini, ISE Mercury, MIAX, Nasdaq, Pearl, Phlx, NYSE MKT, and NYSE Arca. MEMX has submitted an executed copy of the Plan to the Commission in accordance with the procedures set forth in the Plan regarding new Participants. Section 3(c) of the Plan provides for the entry of new Participants to the Plan. Specifically, Section 3(c) of the Plan provides that an Eligible Exchange
Section 4(b) of the Plan sets forth the process by which an Eligible Exchange may effect an amendment to the Plan. Specifically, an Eligible Exchange must: (a) execute a copy of the Plan with the only change being the addition of the new Participant's name in Section 3(a) of the Plan; and (b) submit the executed Plan to the Commission. The Plan then provides that such an amendment will be effective when the amendment is approved by the Commission or otherwise becomes effective pursuant to Section 11A of the Act and Rule 608 thereunder.
The foregoing Plan amendment has become effective pursuant to Rule 608(b)(3)(iii)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the amendment is consistent with the Act and the rules thereunder. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend Rule 5.32. 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 Rule 5.32 to adopt a passive quote protection mechanism.
The options market is driven by Market-Maker quotes, and thus Market-Maker quotes are critical to provide liquidity to the market and contribute to price discovery for investors. If Market-Makers do not have sufficient time to refresh their resting quotes (the primary source of liquidity for customers in the market) in response to market updates before executing against incoming interest that has incorporated those market updates, this increased risk of execution at stale prices may cause Market-Makers to widen their quotes to the detriment of investors or otherwise withhold liquidity. This reduced liquidity may reduce execution opportunities or cause executions to occur at worse prices for customers. Further, Market-Makers must comply with various obligations, including to provide continuous electronic quotes and to update quotes in response to market conditions.
Market-Maker quotes are based generally on pricing models that rely on various factors, including the price of the underlying security and that security's volatility. As these variables change, a Market-Maker's pricing model automatically will enter updates to a number of its bids and offers. Additionally, a Market-Maker's system may also automatically enter orders in response to changes in those variables as part of their market-making activity, such as hedging. As a result, there can be a multitude of instances in which the bids and offers of multiple Market-Makers attempting to update their quotes and submit orders in response to market changes inadvertently interact with each other, which can lead to significant risk and exposure. This may occur, for example, when one Market-Maker's price update system is faster than systems used by other Market-Makers. In this respect, a Market-Maker's system that updates options prices microseconds, or even nanoseconds, faster than another Market-Maker's system may lock or cross its bids (offers) against the other Market-Maker's offers (bids) every time its bid (offer) adjusts to the offer (bid) of the second Market-Maker even if the second Market-Maker's system was also in the process of updating that offer (bid).
For example, suppose three Market-Makers for class XYZ have the following displayed markets:
The Exchange understands Market-Makers primarily use bulk message quotes to input and update quote prices for purposes of providing liquidity, as bulk messages allow Market-Makers to update efficiently quotes in multiple series using a single message. To protect these quotes—Market-Makers' primary liquidity source—from inadvertent executions as well as executions at stale prices due to technological disparities between Market-Maker systems, the Exchange adopted the functionality in current Rules 5.6(c)(3) and 5.32(c)(6), which prevents executions of incoming Market-Maker interest against resting Market-Maker interest. The purpose of this functionality is to provide resting Market-Maker quotes with time to update before execution so that executions occur at prices based on then-current market, which the Exchange believes encourages Market-Makers to provide competitive markets on the Exchange. Specifically, Rule 5.32(c)(6) provides that the System cancels or rejects a Cancel Back
The protection in Rule 5.32(c)(6) specifically prevents incoming appointed Market-Maker interest (which may be Book Only and thus otherwise eligible for execution against resting interest on the Book) from executing against resting Market-Maker interest. To further protect liquidity of Market-Makers in appointed classes (which liquidity is subject to quoting obligations, as noted above), Rule 5.6(c)(3) provides that bulk messages used by Market-Makers in non-appointed classes may be Post Only only, which would prevent executions of these incoming quotes against resting interest (including resting appointed Market-Maker interest) in those classes.
This current functionality also recognizes that resting Market-Maker interest needs protection from orders (in addition to quotes) of all users, including non-Market-Makers, as orders submitted through bulk ports by Users other than appointed Market-Makers may also only be Post Only, which again would prevent executions of these incoming orders against resting interest (including resting appointed Market-Maker interest). Given the primary purpose of bulk ports is to allow Market-Makers and other users to provide liquidity to the Book, the Exchange adopted functionality to prevent executions of interest submitted through bulk ports against resting Market-Maker interest due to technological disparities (as demonstrated in the example above to protect the primary liquidity source to the Exchange.
While this current functionality protects resting Market-Maker interest from execution at stale prices against incoming Market-Maker and non-Market-Maker interest submitted through bulk ports, resting Market-Maker interest remains unprotected from Market-Maker orders that may be submitted through non-bulk ports. As noted above, Market-Makers may submit orders for other market-making purposes, such as hedging, which orders can be generated from the same systems generating bulk message quotes. As a result, resting Market-Maker interest remains subject to risk of execution at stale prices against incoming Market-Maker non-bulk port orders due to technological disparities. Given the critical role Market-Makers play in the options market, the Exchange believes it is imperative to have the ability to protect Market-Makers' resting quotes from execution at stale prices against incoming Market-Maker interest resulting from technological disparities between Market-Makers. The Exchange believes it should be able to extend this protection to incoming interest from Market-Makers, regardless of the type of port through which it was submitted, as it can expose Market-Makers to the same level of risk. Ultimately, this exposure may negatively impact liquidity to the detriment of the entire market. Unlike quotes and orders submitted through bulk ports, the primary purpose of which is generally to rest on the Book and provide liquidity, it is likely the intention of orders submitted through non-bulk ports to execute against the resting interest (including Market-Maker quotes). As a result, the Exchange believes it is important to balance the need to protect resting Market-Maker quotes from executions at stale prices with the need to provide opportunities for this incoming interest to execute against those quotes.
The proposed rule change proposes to adopt a quote protection timer (“QPT”) to provide the Exchange with the ability to provide Market-Maker quotes with this additional protection. The purpose of QPT is to provide Market-Makers with opportunities to update the prices of their resting quotes prior to execution against aggressing non-bulk port incoming Market-Maker interest while still providing that incoming interest with the opportunity to execute against resting liquidity. Specifically, the Exchange proposes to adopt Rule 5.32(h), which provides the Exchange with the ability to determine on a class basis to activate a QPT. In a class in which the Exchange has activated the QPT, if an incoming order (including an incoming complex order legging into the Book pursuant to Rule 5.33(g), but excluding paired orders, orders (or unexecuted portions) that routed to another exchange(s), and orders routed from PAR) enters the Book
The Exchange believes it is reasonable to permit the Exchange to determine whether to activate QPT on a class basis to address market structure differences that apply to different classes. This is consistent with other Exchange functionality, such as auctions, which the Exchange may activate on a class basis.
The Exchange also believes limiting the proposed rule change to orders of Market-Makers (Capacity M) is appropriate because it is consistent with current and prior functionality, which protected resting Market-Maker interest from incoming Market-Maker interest.
Pursuant to proposed Rule 5.32(h)(3), during the quote protection period, neither the initial aggressor order (or unexecuted portion) nor any other incoming marketable orders with Capacity M received during the quote protection period (together with the initial aggressor order, the “aggressor orders”) may execute against the protected quote or any other contra-side bulk message quotes with Capacity M that enter the Book (together with the initial protected quote, the “protected quotes”), and the System ranks (in time priority) and displays the aggressor orders at one minimum price variation below (above) the price of the displayed protected offer (bid).
The TPH that submitted any aggressor order during the quote protection period, or the Market-Maker that submitted any protected quote during the quote protection period, may update the price of its order or quote, as applicable; however, those orders and quotes remain firm at their displayed prices in accordance with Rule 5.59 until updated. Therefore, aggressor orders and protected quotes may continue to execute at their resting prices (which is an adjusted price with respect to aggressor orders, as described above) against incoming interest. This provides other interest that enters the Book during the quote protection period with potential execution opportunities. Specifically:
• an incoming order with a Capacity other than M (“non-aggressor order”) executes against resting contra-side interest at its displayed price in accordance with the allocation algorithm applicable to the class;
• an incoming aggressor order executes against resting non-protected quote contra-side interest at its adjusted price in accordance with the allocation algorithm applicable to the class; and
• an incoming contra-side order or quote executes against resting aggressor and non-aggressor orders at their displayed prices in accordance with the allocation algorithm applicable to the class.
If (a) for simple orders, there are no more protected quotes at the initial prices of any price-adjusted aggressor orders, the System unadjusts the prices of the aggressor buy (sell) orders to one minimum price variation below (above) the next lowest (highest) priced protected quote (to their limit prices); or (b) for complex orders, the SBO (SBB) increases (decreases), the System unadjusts the prices of the aggressor buy (sell) complex orders to one minimum variation below (above) the then-current SBO (SBB) (to their limit prices).
Proposed Rule 5.32(h)(4) provides at the conclusion of the quote protection period, the System unadjusts the prices of the aggressor orders (or unexecuted portions) to their initial prices, which then execute (in time priority) against any remaining marketable contra-side interest, including the protected quotes, in accordance with the allocation algorithm applicable to the class;
The Exchange believes the proposed rule change to delay execution of resting Market-Maker quotes against incoming aggressor Market-Maker interest is appropriate, rather than prevention of execution (as occurs in current functionality described above), because as noted above, unlike interest submitted through bulk ports (the primary purpose of which is to provide liquidity on the Book), the primary purpose of orders submitted through non-bulk ports is to execute against interest resting on the Book.
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 promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a national market system, and protect investors. The proposed rule change is intended to prevent incoming Market-Maker orders submitted through non-bulk ports from immediately executing against resting Market-Maker interest at potentially stale prices due to technological disparities between Market-Makers. The Exchange believes the proposed functionality will reduce execution of resting Market-Maker interest at prices that do not reflect the then-current market, which executions may impede certain liquidity providers' ability to competitively price their bids and offers. Specifically, this increased risk of execution at stale prices may cause Market-Makers to widen their quotes or otherwise withhold liquidity to the detriment of investors. The Exchange expects the proposed rule change to increase liquidity and enhance competition in the market, because Market-Makers may be able to quote more aggressively with less concern about exposure to execution risk due to technological disparities in their quoting systems compared to other
Given the critical role Market-Makers play in the options market, the Exchange believes it is imperative to have the ability to protect Market-Makers' resting quotes from execution at stale prices against incoming Market-Maker interest due to technological disparities between Market-Makers. The Exchange believes it should be able to extend this protection to incoming Market-Maker interest from non-bulk ports, as technological disparities between Market-Makers can expose Market-Makers to the same level of risk regardless of which type of port Market-Makers submit interest. Ultimately, this exposure to risk from may negatively impact liquidity to the detriment of the entire market. Unlike quotes and orders submitted through bulk ports, the primary purpose of which is generally to rest on the Book and provide liquidity, it is likely the intention of orders submitted through non-bulk ports to execute against the resting interest (including Market-Maker quotes). As a result, the Exchange believes it is important to balance the need to protect resting Market-Maker quotes from executions at stale prices with the need to provide opportunities for this incoming interest to execute against those quotes. The Exchange believes the proposed rule change to slightly delay execution of certain aggressing interest provides an equitable balance between the need to protect resting Market-Maker interest and provide incoming interest with execution opportunities.
The Exchange believes the proposed rule change is not designed to permit unfair discrimination by providing the Exchange with the ability to provide Market-Maker quotes with additional protection. The options market is driven by Market-Maker quotes, and thus Market-Maker quotes are critical to provide liquidity to the market and contribute to price discovery for investors. If Market-Makers do not have sufficient time to refresh their resting quotes (the primary source of liquidity for customers in the market) in response to market updates before executing against incoming interest that has incorporated those market updates, this increased risk of execution at stale prices may cause Market-Makers to widen their quotes to the detriment of investors or otherwise withhold liquidity. This reduced liquidity may reduce execution opportunities or cause executions to occur at worse prices for customers. Further, Market-Makers must comply with various obligations, including to provide continuous electronic quotes and to update quotes in response to market conditions.
Further, the Exchange believes the proposed rule change to provide the Exchange with flexibility to determine whether to enable QPT on a class basis, and in such classes to provide the Exchange with flexibility to determine the length of the quote protection period, is not designed to permit unfair discrimination. The Exchange believes this flexibility is appropriate to address market structure differences, including differences among market participants and activity levels, within different classes, which flexibility the Exchange has with respect to other functionality, such as auctions.
The Exchange also believes limiting the proposed rule change to orders of Market-Makers (Capacity M) is appropriate because it is consistent with current and prior functionality, which protected resting Market-Maker interest from incoming Market-Maker interest.
The Exchange notes the underlying purpose of this proposed rule change, which is to provide resting Market-Maker quotes with time to update in response to market condition changes, is the same as the primary purpose of functionality and previously available
The proposed temporary adjustment of aggressor order prices will further perfect the mechanism of a free and open market and national market system, as it will prevent the display of a locked or crossed market consistent with the Linkage Plan.
As noted above, the options market is driven by Market-Maker quotes, and thus Market-Maker quotes are critical to provide liquidity to the market and contribute to price discovery for investors. The proposed functionality is designed to permit the Exchange to provide Market-Makers with further protection against executions at potentially stale prices due to technology disparities while still providing incoming Market-Maker orders submitted through non-bulk ports with execution opportunities. The Exchange believes the proposed enhanced functionality will permit liquidity providers to more efficiently enter and update bids and offers. This may cause Market-Makers to quote tighter and deeper markets, which will increase liquidity and enhance competition to the ultimate benefit of all market participants.
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 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 it will apply in the same manner to all incoming Market-Maker orders in non-bulk ports. The primary purpose of the proposed rule change is to permit the Exchange to provide additional protection to resting Market-Maker quotes from executions against incoming Market-Maker interest at potentially stale prices before they have the opportunity to update in response to market condition changes. The Exchange believes it is reasonable to provide additional protection to Market-Makers given their unique and critical role in the options market and the various obligations that Market-Makers must satisfy, as discussed above. Additionally, as noted above, the proposed functionality supplements similar functionality currently available on the Exchange, which similarly protects resting Market-Maker interest against executions at potentially stale prices.
The Exchange does not believe 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 it applies solely to the timing of executions against resting Market-Maker quotes on the Exchange. As noted above, the proposed rule change is consistent with the Linkage Plan.
Additionally, the Exchange believes the proposed rule change will relieve any burden on, or otherwise promote, competition. As discussed above, the Exchange believe the proposed rule change may encourage the provision of more aggressive liquidity, which may result in more trading opportunities and tighter spreads, which contributes to price discovery. This may improve overall market quality and enhance competition on the Exchange.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Burns Paiute Tribe (FEMA-4733-DR), dated 08/28/2023.
Issued on 08/28/2023.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/28/2023, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 18114 B and for economic injury is 18115 0.
U.S. Small Business Administration.
Amendment 1.
This is an amendment to the Presidential declaration of a major disaster for the State of Hawaii (FEMA-4724-DR), dated 08/10/2023.
Issued on 08/31/2023.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that the President's major disaster declaration for the state of Hawaii, dated 08/10/2023, is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated March 3, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $400 million in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 6, 2023.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated May 31, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $300 million in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act, to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 6, 2023.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated March 20, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $350 million in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 6, 2023.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated October 4, 2022, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $625 million in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 7, 2023.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated June 27, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $500 million in
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 6, 2023.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated January 6, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $2.85 billion in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 6, 2023.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated July 7, 2023, I hereby determine that:
• An unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• The emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
In addition, pursuant to the authority vested in me by section 614(a)(1) of the Act (22 U.S.C. 2364(a)(1)), and Presidential Delegation of Authority dated July 7, 2023, I hereby determine that it is important to the security interests of the United States to furnish up to $122 million in assistance under the Act to Ukraine without regard to any other provision of the law within the purview of section 614(a)(1) of the Act.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $800 million in defense articles and services of the Department of Defense and military education and training under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated April 19, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $325 million in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received on September 6, 2023, for publication by the Office of the Federal Register.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated January 19, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $2.5 billion in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 6, 2023.
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated June 13, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $325 million in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act, to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
Pursuant to the authority vested in me by section 506(a)(1) of the Foreign Assistance Act of 1961 (the “Act”) (22 U.S.C. 2318(a)(1)) and Presidential Delegation of Authority dated May 3, 2023, I hereby determine that:
• an unforeseen emergency exists which requires immediate military assistance to Ukraine; and
• the emergency requirement cannot be met under the authority of the Arms Export Control Act or any other provision of law.
I, therefore, pursuant to authority delegated to me by the President, direct the drawdown of up to $300 million in defense articles and services of the Department of Defense, and military education and training, under the authority of section 506(a)(1) of the Act to provide assistance to Ukraine. The Department of State will coordinate implementation of this drawdown.
This determination shall be reported to the Congress and published in the
This document was received for publication by the Office of the Federal Register on September 6, 2023.
Surface Transportation Board.
Notice of Rail Energy Transportation Advisory Committee meeting.
Notice is hereby given of a meeting of the Rail Energy Transportation Advisory Committee (RETAC), pursuant to the Federal Advisory Committee Act.
The meeting will be held on Wednesday, October 18, 2023, at 9:00 a.m. E.T.
The meeting will be held at the Surface Transportation Board headquarters at 395 E Street SW, Washington, DC 20423.
Kristen Nunnally at (202) 245-0312 or
RETAC was formed in 2007 to provide advice and guidance to the Board, and to serve as a forum for discussion of emerging issues related to the transportation of energy resources by rail.
The meeting, which is open to the public, will be conducted in accordance with the Federal Advisory Committee Act, 5 U.S.C. app. 2; Federal Advisory Committee Management regulations, 41 CFR part 102-3; RETAC's charter; and Board procedures. Further communications about this meeting may be announced through the Board's website at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by October 12, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Charles Huet by email at:
Issued in Washington, DC.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; denial of application for exemption.
FMCSA announces its decision to deny the application from Alaska's Ice Road Driving School requesting an exemption from certain portions of the behind-the-wheel (BTW) entry-level driver training (ELDT) requirements for driver trainees. The applicant explained that because of the unique road system and challenging terrain in Alaska, it is difficult to adhere to the driver training regulations, and further explained that the road configurations lead to only a few major established safe road systems in Alaska. The applicant believes that the road skills test for a Commercial Driver's License (CDL) applicant can safely be administered by the State test examiner because set routes can be established and approved without the CDL applicant completing certain portions of the mandatory BTW training. FMCSA analyzed the application and determined that the exemption would not likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; 202-366-2722 or
To view comments, go to
If you do not have access to the internet, you may view the docket by visiting Dockets Operations on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Under 49 CFR 383.3(e) the State of Alaska may waive certain knowledge and skills tests requirements and issue restricted CDLs, subject to certain conditions. To be eligible for a restricted CDL under 49 CFR 383.3(e), which is not valid outside Alaska, drivers must operate exclusively over roads that are not connected to the State highway system and are not connected to any highway or vehicular way with an average daily traffic volume greater than 499 (§ 383.3(e)(2)). The Federal Highway Administration, FMCSA's predecessor
The ELDT regulations, implemented on February 7, 2022, and set forth in 49 CFR 380, subparts F and G, established minimum training standards for individuals applying for certain CDLs and defined curriculum standards for theory and BTW training. The ELDT curriculum in 49 CFR part 380, appendix A, section A3.1, requires Class A CDL applicants to demonstrate proficiency in proper techniques for initiating vehicle movement, executing left and right turns, changing lanes, navigating curves at speed, entry and exit on the interstate or controlled access highway, and stopping the vehicle in a controlled manner. Under 49 CFR 380.603(a)(2), drivers issued a restricted CDL by the State of Alaska are exempt from the ELDT requirements.
Alaska's Ice Road Driving School seeks an exemption from the requirements, set forth in 49 CFR part 380, Appendices A and B, that driver trainees seeking a Class A or Class B CDL demonstrate proficiency in BTW maneuvers related to entering the on ramp, exiting the off ramp, right turns, and left turns. The applicant states that due to Alaska's unique road system they believe that the exemption would benefit Alaska's driver training schools and give them confidence to take on prospective students and complete the required BTW training safely. Alaska's Ice Road Driving School requests the exemption regarding routing prescriptions that are specific to exact off and on ramps, and right and left turns, adding that it will aid in the safe administration of road tests by the Alaska State Department of Motor Vehicles. The applicant seeks the exemption on behalf of itself and all State and local commercial driving schools in Alaska as well as individuals qualified as third-party testers in the State of Alaska.
Alaska's Ice Road Driving School believes that the specified portions of the ELDT regulation could be waived safely by allowing the school and the State of Alaska to prescribe routes based upon the area in which the road skills exam would be administered. The applicant further believes that the road skills test for a CDL applicant can safely be administered by the State test examiner as set routes can be established and approved without the CDL applicant completing certain portions of the mandatory BTW training.
On April 20, 2023, FMCSA published Alaska's Ice Road Driving School's application and requested public comment [88 FR 24463]. The Agency received no comments in response to the notice.
FMCSA evaluated Alaska's Ice Road Driving School application and denies the exemption request. The applicant failed to establish that they would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption. Granting the exemption would result in drivers receiving a CDL even though they had not demonstrated proficiency in the three driving skills from which exemption is requested. In addition, on December 28, 2022, the Agency granted an exemption to the State of Alaska [87 FR 79932] which allows the State to waive specified portions of the CDL skills test for drivers in 14 defined geographical areas that lack infrastructure to allow completion of the full skills test. Drivers who receive a restricted CDL under the provisions of the 2022 exemption are also exempt from the ELDT regulations. The relief requested by Alaska's Ice Road Driving School falls within the scope of that exemption to the extent that drivers would not be subject to ELDT requirements if, pursuant to the 2022 exemption, they received a restricted CDL allowing them to operate a commercial motor vehicle only within 14 designated geographical areas of the State. This exemption for the State of Alaska is effective from December 28, 2022, through December 30, 2024. The Agency does not believe it is appropriate to grant a State-wide exemption when the previous exemption provides a targeted solution in 14 specific regions of the State where there are challenges to achieving full compliance with the rules. In addition, there were no comments filed in support of Alaska's Ice Road Driving School's request.
For the above reasons, Alaska's Ice Road Driving School's exemption application is denied.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of safety advisory.
This Safety Advisory recommends railroads utilize Wheel Impact Load Detectors (WILD) to properly identify and replace high-impact railcar wheels that could cause significant damage to rails and supporting track structures. FRA's preliminary investigation of a recent train derailment in Gothenburg, Nebraska, indicates that high-impact wheels damaged the rail the train was operating over and caused the derailment. Current industry practices for using WILDs to identify and replace high-impact wheels could help prevent such incidents in the future.
Mr. Charles P. King, Director, Office of Railroad Infrastructure and Mechanical Equipment, at telephone: 202-329-5031 or email:
In 2015, FRA issued Safety Advisory 2015-01 recommending, among other things, the use of WILDs to improve safety,
WILDs supplement, and do not substitute, the existing wheel
On February 21, 2023, 30 freight cars carrying coal derailed in a train in Gothenburg, Nebraska. FRA's preliminary investigation indicates the derailment was likely caused by high-impact wheels breaking a track joint bar. Records from FRA's investigation show one of the freight cars had a WILD measurement of 130.6 KIPs when it operated over the track joint bar that was found broken. Records also show this freight car continued to operate for several months prior to the derailment after its high-impact wheels were identified by WILDs. WILD measurements showed high-impact wheels in November and December 2022, and again in January 2023. During its investigation, FRA also identified eight other freight cars in the derailed train with high-impact wheels.
In light of the Gothenburg, Nebraska, accident, FRA recommends railroads and contractors continue to use WILDs to help identify and replace high-impact wheels according to railroad current industry practices. Specifically, wheels with a WILD measurement greater than 80 KIPs should be replaced when in a repair shop, and wheels with a WILD measurement greater than 90 KIPs should be replaced when found in any other location in service. In addition, railroads should review procedures for identifying dynamic ratios to help predict high-impact wheels when cars are loaded. A dynamic ratio is the ratio of a WILD measurement of a loaded railcar compared to when it is empty. The peak impact is the highest WILD measurement recorded. The impact measurement varies during operation due to the changing operating environment, including changes in speed. Wheels should be replaced when an empty railcar with a dynamic ratio of 5 or higher has a preceding peak impact greater than 100 KIPs. Replacement at such time will reduce or eliminate further damage to the freight car's wheels, rails, and track structures. In addition, FRA recommends railroads and contractors review this Safety Advisory with employees to increase their awareness of the possible consequences of allowing freight cars with high-impact wheels to continue to operate.
FRA encourages all railroad industry members to take actions consistent with the recommendations of this Safety Advisory. FRA may modify this Safety Advisory, issue additional safety advisories, or take other appropriate action necessary to ensure the highest level of safety on the Nation's railroads, including pursuing other corrective measures under its rail safety authority.
Issued in Washington, DC.
Office of the Secretary, Department of Transportation.
Notice of public meeting.
DOT OST announces a meeting of ACTE, which will take place via videoconference.
The meeting will be held Friday, September 22, 2023, from 2:30 to 4:30 p.m. Eastern Time. Requests for accommodations because of a disability must be received by Friday, September 15. Requests to submit questions must be received no later than Friday, September 15.
The meeting will be held via videoconference. Those members of the public who would like to participate virtually should go to
Sandra Norman, Senior Advisor, Departmental Office of Civil Rights and Warner Dixon, Special Assistant for Civil Rights, Departmental Office of Civil Rights, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 934-2380,
ACTE was established to provide independent advice and recommendations to the Secretary of Transportation about comprehensive, interdisciplinary issues related to civil rights and transportation equity in the planning, design, research, policy, and advocacy contexts from a variety of transportation equity practitioners and community leaders. Specifically, the Committee will provide advice and recommendations to inform the Department's efforts to:
Implement the Agency's Equity Action Plan and Strategic Plan, helping to institutionalize equity into Agency programs, policies, regulations, and activities:
Strengthen and establish partnerships with overburdened and underserved communities who have been historically underrepresented in the Department's outreach and engagement, including those in rural and urban areas:
Empower communities to have a meaningful voice in local and regional transportation decisions; and
Ensure the compliance of Federal funding recipients with civil rights laws and nondiscrimination programs, policies, regulations, and activities.
The agenda for the meeting will consist of:
Advance registration is required. Please register at
Questions from the public will be answered during the public comment period only at the discretion of the ACTE chair, vice chair, and designated Federal officer. Members of the public may submit written comments and questions to the points of contact listed in the
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the name of a person that has 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 this person are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for effective date(s).
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 Compliance, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On September 6, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following person is blocked under the relevant sanctions authority listed below.
1. DAGALO, Abdelrahim Hamdan (a.k.a. DAGLO MOUSA, Abdul Rahim Hamdan; a.k.a. DAGLO MUSA, Abdelrahim Hamdan; a.k.a. “DAGLO, Abdelraheem”), Khartoum, Sudan; DOB 01 Jan 1972; nationality Sudan; citizen Sudan; Gender Male (individual) [SUDAN-EO14098].
Designated pursuant to section 1(a)(ii)(A) of Executive Order 14098 of May 4, 2023, “Imposing Sanctions on Certain Persons Destabilizing Sudan and Undermining the Goal of a Democratic Transition,” for being a foreign person who is or has been a leader, official, senior executive officer, or member of the board of directors of the Rapid Support Forces, an entity that has, or whose members have been responsible for, or complicit in, or to have directly or indirectly engaged or attempted to engage in actions or policies that threaten the peace, security, or stability of Sudan relating to the tenure of such leader, official, senior executive officer, or member of the board of directors.
Designated pursuant to section 1(a)(ii)(A) of Executive Order 14098 of May 4, 2023, “Imposing Sanctions on Certain Persons Destabilizing Sudan and Undermining the Goal of a Democratic Transition,” for being a foreign person who is or has been a leader, official, senior executive officer, or member of the board of directors of the Rapid Support Forces, an entity that has, or whose members have, been responsible for, or complicit in, or have directly or indirectly engaged or attempted to engage in the targeting of women, children, or any other civilians through the commission of acts of violence (including killing, maiming, torture, or rape or other sexual violence), abduction, forced displacement, or attacks on schools, hospitals, religious sites, or locations where civilians are seeking refuge, or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law relating to the tenure of such leader, official, senior executive officer, or member of the board of directors.
Departmental Offices, U.S. Department of the Treasury.
Notice of information collection; request for comment.
The Department of the Treasury will submit the following information collection request 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 October 12, 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 Spencer W. Clark by emailing
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Federal Insurance Office (FIO) within the Department of the Treasury invites the public to submit expressions of interest in serving as members of the Advisory Committee on Risk-Sharing Mechanisms (ACRSM). Submissions must be received by FIO no later than October 15, 2023.
Annette Burris, Senior Insurance Regulatory Policy Analyst, Federal Insurance Office, Department of the Treasury, 1500 Pennsylvania Ave. NW, Room 1410 MT, Washington, DC 20220, at (771) 215-6900 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
The ACRSM's membership is balanced to include a cross-section of members consisting of directors, officers, or other employees of insurers, reinsurers, and capital market participants that are representative of the affected sectors of the insurance industry, including commercial property insurance, commercial casualty insurance, reinsurance, and alternative risk transfer industries. More information regarding the ACRSM, including a list of its current members, prior recommendations to FIO, and its organizational documents, is available on the Treasury website.
Individuals interested in serving as ACRSM members should submit an expression of interest including their name, organization or affiliation, and contact information (employment address, telephone number, and email address). Submissions should also include a curriculum vitae and a statement describing the individual's interest in serving and willingness to work on the issues addressed by the ACRSM.
A small subset of ACRSM members may be required to adhere to the conflict-of-interest rules applicable to Special Government Employees as such employees are defined in 18 U.S.C. 202(a). These rules include relevant provisions in 18 U.S.C. related to criminal activity, Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635), and Executive Order 12674 (as modified by Executive Order 12731).
In accordance with Department of Treasury Directive 21-03, candidates for appointment to the ACRSM are subject to a clearance process, including fingerprinting, annual tax checks, and a Federal Bureau of Investigation criminal background check. All ACRSM candidates must agree to submit to these pre-appointment checks.
The deadline for submitting expressions of interest is October 15, 2023. Submissions may be sent by email to
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
On March 13, 2023, the Consolidated Audit Trail, LLC (“CAT LLC”), on behalf of the Participants
On June 16, 2023, the Commission instituted proceedings pursuant to Rule 608(b)(2)(i) of Regulation NMS
This order approves the Proposed Amendment.
On July 11, 2012, the Commission adopted Rule 613 of Regulation NMS, which required the SROs to submit a national market system (“NMS”) plan to create, implement and maintain a consolidated audit trail that would capture customer and order event information for orders in NMS securities.
Under the CAT NMS Plan, CAT fees are to be implemented in accordance with various funding principles, including an “allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act taking into account . . . distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon the Company resources and operations” and the “avoid[ance of] any disincentives such as placing an inappropriate burden on competition and reduction in market quality.”
On May 15, 2020, the Commission adopted amendments to the CAT NMS Plan designed to increase the Participants' financial accountability for the timely completion of the CAT (“Financial Accountability Amendments”).
After careful review, the Commission, pursuant to Section 11A of the Exchange Act,
The Participants have sufficiently demonstrated that the proposed allocation of fees is reasonable. There are a number of potential approaches to allocating the costs of operating the CAT, all of which have relative strengths and weaknesses. In adopting Rule 613 and approving the CAT NMS Plan, the Commission determined that the CAT was appropriate in order to enable the SROs and the Commission to fulfill their responsibilities to oversee the equities and options markets. The CAT NMS Plan requires both Execution Venues (which include the Participants) and Industry Members (which include CAT Executing Brokers) to fund the CAT. The proposed one-third allocation of CAT fees to the applicable Participant in a transaction, the CAT Executing Broker for the buyer in a transaction and the CAT Executing Broker for the seller in a transaction, assesses an equal fee to the three primary roles in a transaction: the buyer, seller and market regulator. In our view, allocating the costs for the CAT among the three parties who play significant roles in transactions reportable to the CAT in this manner represents a reasonable method of allocating costs among the parties who participate in and benefit from those markets.
Commenters expressed concern that the Participant exchanges and FINRA would pass their share of costs on to Industry Members. But the Exchange Act expressly contemplates the ability of the Participants to recoup the costs of fulfilling their statutory obligations under the Exchange Act. And, as we explained in adopting Rule 613 and approving the CAT NMS Plan, the CAT is important to the performance of these regulatory activities in modern, interconnected markets, to the ultimate benefit of investors and market participants. Moreover, these costs will not be unchecked. The Participants must file their proposed rule changes relating to fees with the Commission. Those proposed rule changes are published by the Commission and there is an opportunity for public comment. CAT fees, like any fees the Participants collect from their members to fund their SRO responsibilities in market and member regulation, must be consistent with applicable statutory standards under the Exchange Act, including being reasonable, equitable and not unfairly discriminatory.
We also conclude that the use of executed equivalent share volume provides a reasonable basis for the calculation of these fees. Executed equivalent share volume is readily determinable and—because it is based on trading activity, which impacts CAT costs—provides a reasonable proxy for the costs to CAT, allowing CAT Reporters to be assessed fees corresponding to the cost burden they impose on the CAT. The use of CAT Executing Brokers is also appropriate because the proposed Executed Share Model is based on
CAT LLC proposes to replace the funding model set forth in Article XI of the CAT NMS Plan (“Original Funding Model”) with the Executed Share Model. The Original Funding Model involved a bifurcated approach, where costs associated with building and operating the CAT would be borne by (1) Industry Members (other than alternative trading systems (“ATSs”) that execute transactions in Eligible Securities (“Execution Venue ATSs”)) through fixed tiered fees based on message traffic for Eligible Securities, and (2) Participants and Industry Members that are Execution Venue ATSs for Eligible Securities through fixed tiered fees based on market share.
Under the Executed Share Model, CAT LLC proposes to establish two categories of CAT fees. The first category of CAT fees would be fees (“CAT Fees”) payable by Participants and Industry Members that are CAT Executing Brokers for the Buyer and for the Seller with regard to CAT costs not previously paid by the Participants (“Prospective CAT Costs”).
For each category of fees, each CEBB and each CEBS will be required to pay a CAT fee for each such transaction in Eligible Securities in the prior month based on CAT Data.
FINRA CAT would be responsible for calculating the CAT fees and submitting invoices to the CAT Executing Brokers based on this CAT Data.
Once the Proposed Amendment has been approved by the Commission, the Participants would separately file proposed rule filings pursuant to Section 19(b) of the Exchange Act
Under the Executed Share Model, CAT fees would be allocated one-third to the applicable Participant, one-third to the CEBS and one-third to the CEBB of a transaction. Certain commenters opposed the proposed allocation.
FINRA stated that, while the Proposed Amendment justified the fairness of the Executed Share Model because it would operate like other fees, like FINRA's Trading Activity Fee (“TAF”), Section 31 fees, and the options regulatory fee,
Another commenter stated that the proposed CAT funding model cannot be compared to Section 31 fees, the TAF, or the options regulatory fee because the commenter believes that CAT fees appear to be unconstrained and out of the industry's control.
One commenter disagreed with the Participants' statement that the Executed Share Model's similarity to other transaction-based fees approved by the Commission is adequate justification for consistency with the Exchange Act.
Commenters also questioned the Participants' justifications for the one-third allocation methodology. FINRA stated that the Proposed Amendment did not justify why the proposed allocation by thirds to the Participant, buy-side and sell-side is equitable in the context of the CAT NMS Plan.
One commenter stated that the Participants have not met their burden to demonstrate the proposed allocation is consistent with the Exchange Act fee standards and not arbitrary.
One commenter stated that the Proposed Amendment does not demonstrate that it is equitable, as required by Section 6(b)(4),
The commenter also stated that the Proposed Amendment would result in the allocation of all of the costs to build and operate the CAT to Industry Members and would therefore be inconsistent with Section 6(b)(4) to equitably allocate reasonable fees.
Further, the commenter stated that Industry Members may also be required
The commenter stated that the Proposed Amendment does not provide the percentage of total costs to build and operate the CAT that will be borne by Industry Members in practice.
One commenter stated that the Participants do not account for “the time and expense Industry Members have devoted to developing and maintaining internal systems to be able to report the [sic] CAT, as well as the time and expense Industry Members have devoted to assisting the Operating Committee with its job of developing reporting specifications that allow the CAT to achieve its regulatory purpose” in the proposed allocation
Similarly, one commenter stated that the allocation does not take into account fees currently paid by the industry and implementation costs incurred by Industry Members to comply with CAT reporting requirements.
Commenters also objected to statements made in the Proposed Amendment that the complexity of Industry Member business models contributes substantially to the costs of the CAT.
Commenters also disagreed with other justifications made in the Proposed Amendment for the proposed allocation; specifically, that there are more Industry Members than Participants and that Industry Members receive more in
The commenter also stated that the Proposed Amendment lacks support for the proposed allocation.
The commenter suggested alternatives to the proposed allocation methodology.
Commenters also raised concerns about statements in the Proposed Amendment that CAT costs would be passed on to investors.
One commenter stated that many of the largest Industry Members would be allocated CAT fees based on proprietary trading activity, so they would not be able to pass through their fees to investors.
In response to the comment stating that the Participants had not analyzed a suggested Section 31-style approach to a funding model,
In response, FINRA stated that the CAT LLC May 2023 Response Letter misrepresented the commenter's letter by incorrectly stating that the commenter's letter recommended an approach similar to Section 31 fees.
CAT LLC further responded to FINRA's objections to the use of the TAF as precedent for CAT fees—specifically, FINRA's statement that unlike the proposed CAT fees, the TAF recovers the costs of FINRA's regulatory activities, while the Proposed Amendment is designed to align with the costs to build, operate and administer the CAT.
In response to a commenter that stated that there is no precedent for CAT fees to be allocated to Industry Members in perpetuity, and that the Exchange Act would not allow CAT LLC to require Industry Members to fund unlimited costs in perpetuity,
In response to comments that objected to the proposed allocation to Industry Members because Industry Members would not benefit from the CAT,
In response to comments that state that Industry Members could bear 100% of CAT costs if Participants decide to pass-through their costs to them,
In response to comments objecting to the proposed allocation to Industry Members for not taking into account regulatory fees currently paid by Industry Members,
In response to comments on whether Participants' models are equally to blame for the complexity of the markets,
CAT LLC also disagreed with one commenter's dismissal of CAT LLC's consideration of Industry Members' relative ability to pay,
Additionally, CAT LLC objected to the commenter's statement that the proposed allocation is “inconsistent with the historical CAT decision to allocate costs to the parties responsible for generating them.”
Additionally, CAT LLC responded to the commenter's suggested alternative proposal that would equally allocate CAT costs to Participant exchanges and Industry Members, stating that the commenter did not explain why the alternative would satisfy the Exchange Act standards, and noting that CAT LLC had previously considered such an allocation but believed that it would not result in a fair and equitable allocation due to the greater number of Industry Members than Participants, the greater financial resources of Industry Members, and the failure of the suggested allocation to take into account how the complexity of Industry Member business models contributes substantially to CAT costs.
In response, the commenter stated that the CAT LLC Response Letter did not meaningfully address the concerns it raised about the allocation of CAT costs between Participants and Industry Members.
In response to a commenter that recommended allocating no more than 50% of CAT costs to Industry Members, including the FINRA allocation,
In response, the commenter stated that its suggestions, which included minimum and maximum fee levels, calibrations for liquidity provision, and consideration of additional metrics,
The Executed Share Model reflects a reasonable approach to funding the building and operation of the CAT.
While a commenter said the Proposed Amendment did not justify why the TAF, options regulatory fee, and Section 31 fees should be used as a model in the context of the Executed Share Model,
Commenters expressed concerns that the Participants may impose fees on their members to recoup costs relating to CAT, making Industry Members responsible for CAT funding costs beyond those to which they will be directly assessed pursuant to the Executed Share Model,
The Commission recognizes that these operational costs may be passed on in other ways, including by both the Participants and Industry Members, who each may elect to pass on such operational costs as fees to customers indirectly through their charges for services to customers. That would be true regardless of how the Proposed Amendment chose to set the initial allocation. Even if the Participants decide to pass-through the costs of CAT to Industry Members, however, in our view, the rule filing process under Section 19(b) and Rule 19b-4 will still incentivize the Participants to control costs. Any effort to pass-through costs will be subject to that process and, if the Participants fail to control costs, their ability to demonstrate that a proposed fee is reasonable and consistent with the Exchange Act may be compromised. After the Participants file their proposed rule changes relating to fees with the Commission, those proposed rule changes are published by the Commission and there is an opportunity for public comment.
In response to the commenter stating that proprietary trading firms cannot pass-through fees to investors and suggesting that an analysis of proprietary executed volume compared to customer executed volume is necessary to determine if the allocation is fair, equitable, and unfairly discriminatory,
While comments raised concerns that the industry would be allocated most of the CAT costs in perpetuity without a mechanism to limit the budget,
Further, the concerns expressed that the proposed allocation did not account for the costs already incurred by Industry Members to comply with the CAT or other fees paid by Industry Members to exchanges for other regulatory matters do not render that allocation unreasonable. Both Participants and Industry Members have incurred costs in adapting their operations to report to CAT as is required to achieve the benefits anticipated from the CAT. But the purpose of the funding model is to provide a framework for the recovery of a different set of costs—those incurred by the Participants' in developing and maintaining the CAT system. Section 11.1(c) of the CAT NMS Plan explicitly permits the Operating Committee to recover those costs, allowing it to “take into account fees, costs and expenses . . . incurred by the Participants on behalf of the Company . . . and such fees, costs and expenses shall be fairly and reasonably shared among the Participants and Industry Members.”
Further, the Commission does not base its finding with respect to the proposed allocation of costs between Participant and Industry Members on their respective responsibility for any
As explained below, the Commission agrees with CAT LLC's statements that, “[t]he Executed Share Model . . . reflects a reasonable effort to allocate costs based on the extent to which different CAT Reporters participate in and benefit from the equities and options markets,”
Under the Executed Share Model, a CAT fee would be charged with regard to each transaction in Eligible Securities
Proposed Section 11.3(a)(i)(B) of the CAT NMS Plan describes how executed equivalent shares would be counted for purposes of calculating CAT fees. Specifically, the Executed Share Model uses the concept of executed equivalent shares as the transactions subject to a CAT Fee involve NMS Stocks, Listed Options and OTC Equity Securities, each of which have different trading characteristics.
CAT LLC had represented that a disproportionately large number of shares are involved in transactions involving OTC Equity Securities versus NMS Stocks,
In support of the use of executed equivalent shares to allocate costs under the Executed Share Model, CAT LLC explained that “trading activity provides a reasonable proxy for cost burden on the CAT, and therefore is an appropriate metric for allocating CAT costs among CAT Reporters.”
Commenters questioned the support for the use of executed share volume instead of message traffic, which was previously proposed in prior funding models.
Another commenter stated that the Operating Committee cannot explain why the proposed allocation to Industry Members is equitable, noting that it previously stated that charging Industry Members based on message traffic was the most equitable means of establishing fees.
Further, the commenter stated that allocating costs based on volume would result in costs being mostly allocated to “an extremely small group of broker-dealers,” which would unduly burden competition.
Additionally, FINRA objected to the statement in the Proposed Amendment that “trading activity provides a reasonable proxy for cost burden on the CAT, and therefore is an appropriate metric for allocating CAT costs among CAT Reporters.”
FINRA further stated that the Executed Share Model is inconsistent with the “cost alignment” funding principle in Section 11.2(b) of the CAT NMS Plan, which requires the Participants to seek to establish an allocation of costs that takes into account distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon Company resources and operations.
In response to FINRA's comment raising concerns about the use of trading activity as a proxy for costs,
CAT LLC responded to the commenter's statement that the proposed allocation is inconsistent with the cost alignment principles of the CAT NMS Plan by noting that the Proposed Amendment incorporates the concept of cost burden in at least two ways.
One commenter also stated that the Proposed Amendment made no adjustments for sub-dollar trading activity in NMS stocks, when adjustments were made to volume in OTC Equity Securities to adjust for the large number of shares transacted in sub-dollar securities.
CAT LLC proposed to delete the requirement in existing Section 11.2(b) of the CAT NMS Plan to take into account “distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon Company resources and operations” in establishing the funding of the Company.
With respect to the deletion in Section 11.2(b) of the requirement that, when establishing the funding of the CAT, the Operating Committee must take into account “distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon Company resources and operations,” FINRA stated that the Participants have proposed to delete the language in Section 11.2(b) because the proposed Executed Share Model is inconsistent with the language.
In the Commission's view, the use of executed equivalent share volume as the basis of the proposed cost allocation methodology is reasonable and consistent with the approach taken by the funding principles of the CAT NMS Plan.
In response to the commenter that urged the CAT Operating Committee to demonstrate how the proposed allocation would not unfairly discriminate against equities market participants by subsidizing CAT costs related to options market activity,
The Proposed Amendment's treatment of sub-dollar NMS stocks and fractional shares is appropriate. The Commission does not believe that the Participants' failure to discount sub-dollar NMS stocks renders the Proposed Amendment inconsistent with the Exchange Act. The Commission acknowledges one commenter's statement that retail investors could be allocated a disproportionate percentage of total CAT costs due to the lack of a discount for sub-penny NMS stocks.
The Commission also believes that CAT LLC's explanation that increased trading activity correlates with an increased cost burden on the CAT is reasonable and that executed share volume is a reasonable proxy for a CAT Reporter's cost burden on the CAT
The Commission acknowledges that executions do not take place on FINRA; however, the CAT NMS Plan already categorizes FINRA as an Execution Venue because it has trades reported by its members to its TRFs for reporting transactions effected otherwise than on an exchange. Thus, treatment of FINRA as an Execution Venue is not a change to the existing CAT NMS Plan.
Moreover, the Executed Share Model does not change the criteria used to charge Execution Venues (market share).
The Commission recognizes that the proposed use of executed equivalent share volume is not a perfect proxy for CAT costs, but believes it is nonetheless a reasonable proxy. The costs of CAT are attributable to a number of factors, such as message traffic, storage, and data processing costs, and that for these reasons, the Commission understands that it is difficult to calculate each CAT Reporter's individual cost burden on the CAT. Additionally, there are other operational costs of the CAT that cannot be easily attributed to a particular CAT Reporter and that need to be funded, such as costs for CAT NMS Plan requirements related to intake capacity,
The equal allocation of Participant CAT fees to Participants, regardless of whether they are transacting in options or in equities, is reasonable. The Original Funding Model would have divided Participant CAT fees by Execution Venues that execute transactions (or in the case of a national securities association, has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange) in NMS Stocks or OTC Equity Securities and by Execution Venues that execute transactions in Listed Options.
Under the Executed Share Model, because FINRA is the Participant primarily responsible for oversight of off-exchange securities trading activity,
CAT LLC stated that the assessment of a CAT fee on FINRA in the same manner as the other Participants would not result in a burden on competition for FINRA or for Industry Members engaging in off-exchange activity.
Certain commenters objected to the proposed allocation of Participant CAT fees to FINRA.
FINRA stated that, unlike the exchange Participants, transactions are not executed on a FINRA marketplace and FINRA does not receive commercial revenue for those transactions.
FINRA further stated that it cannot necessarily recoup its costs through RSAs that it has entered into with
In the Proposed Amendment, CAT LLC contested the view that FINRA should not be treated as a market center for CAT funding purposes merely because FINRA is not treated as a market center for governance purposes under the National Market System Plan Regarding Consolidated Equity Market Data (“CT Plan”).
Certain commenters expressed concern about alleged arbitrary treatment of FINRA by the other Participants of the CAT NMS Plan.
Certain commenters suggested that the Commission issue an order soliciting comment on whether the Operating Committee should be reorganized consistent with the CT Plan.
Commenters also believe the allocation to FINRA would increase the allocation to Industry Members.
CAT LLC disagreed with the commenter's proposal to charge FINRA only a nominal regulatory fee.
FINRA requested that if the Commission were to approve the Proposed Amendment, that it acknowledge “FINRA's need and ability to cover CAT costs that are not recovered through contractual arrangements through member fee increases, so as not to jeopardize FINRA's ability to carry out its critical regulatory mission.”
The Commission acknowledges the comments objecting to the allocation to FINRA of 34% of the total CAT costs to be borne by Participants,
The Commission recognizes that there could be other methodologies for allocating costs among CAT Reporters, such as allocations that take into account the manner in which each Participant earns revenue, but these other methodologies may be significantly more complex and would not necessarily more accurately reflect the cost burden of each CAT Reporter. CAT LLC chose to propose the use of executed equivalent share volume, explaining why trading activity is a reasonable proxy for cost burden and an appropriate metric for allocating CAT costs.
The Commission agrees with CAT LLC that the Executed Share Model reasonably assesses fees to FINRA in the same manner based on transaction volume as other Participants. The Executed Share Model is reasonably designed to be neutral as to the manner of execution and place of execution.
The Commission acknowledges the concerns expressed by commenters that FINRA's allocation could indirectly increase the allocation of CAT fees to Industry Members since Industry Members contribute to FINRA's funding.
Finally, the Commission does not agree that the Participants' treatment of FINRA is arbitrary because FINRA is treated as a market center for purposes
As noted above, CAT Executing Brokers will be charged CAT fees.
With respect to transactions on an exchange and over-the-counter transactions, CAT LLC would use transaction reports reported to the CAT by FINRA or the exchanges to identify the transaction, as well as the CAT Executing Broker for each transaction, for purposes of calculating the CAT fees.
For transactions on ATSs, if an ATS is identified as the executing party and/or the contra-side executing party in the TRF/ORF/ADF Transaction Data Event, then the ATS would be a CAT Executing Broker for purposes of the Executed Share Model.
For transactions that do not occur on an exchange and there is only a FINRA member identified for one side of the trade, that FINRA member would be treated as the CAT Executing Broker for both the buy-side and the sell-side of the transaction, that is, as the CEBS and CEBB.
The Executed Share Model also provides for cancellations and corrections.
Certain commenters objected to the proposed definition of “CAT Executing Broker.”
Another commenter stated that the proposed definition of executing broker would result in the inequitable allocation of fees.
The commenter explained that CAT operates on a cost-recovery basis, with costs resulting from the number of messages that Participants and Industry Members report to the CAT, the processing and linking of such messages, and the costs of providing tools to regulators to analyze CAT data.
The commenter suggested instead an allocation in which the Industry Member that originated an order would be treated as an “executing broker” and therefore be responsible for Industry Member CAT fees.
One commenter expressed concerns about the imposition of CAT fees on CAT Executing Brokers.
In response to the comment about the definition of CAT Executing Broker and the billing and collection process being better suited for clearing firms, CAT LLC stated that the proposed assessment of CAT fees on CAT Executing Brokers only addresses the party obligated to pay the CAT fee.
With respect to alternatives to the proposed definition of the CAT Executing Broker, CAT LLC stated that the “originating broker” suggestion was from a commenter who had previously recommended charging executing brokers in comment letters on the Prior Funding Model Proposal.
In response, the commenter stated that the Operating Committee mischaracterized the commenter's position on the assessment of CAT fees to executing brokers by stating in the CAT LLC Response Letter that the commenter changed its position on this proposed change to delay adoption of a CAT funding model.
In response to the comment that imposing fees on executing brokers would result in an inequitable allocation of fees and the suggestion that the use of message traffic as the basis of fees would have ensured that all CAT Reporters would contribute to CAT's funding, CAT LLC disagreed and stated that because the message traffic is separate from whether or not a transaction occurs, fees based on message traffic may not correlate with common revenue or fee models.
CAT LLC further stated that it disagrees with charging an originating
One commenter expressed uncertainty about CAT LLC's response that some of the largest Industry Members are not involved in order origination or originate few orders relative to their market activity, stating that it is unclear to whom the statement is referring since the executing broker and the originating broker would be the same firm in the case of proprietary trading activity.
In response to a comment stating that executing brokers lacked systems and processes to recover costs from their clients and would either choose to absorb the CAT fees or exit the business because of the investments necessary for the cost-recovery process,
In the Commission's view, CAT LLC's definition of “CAT Executing Broker” is reasonable given that the Executed Share Model is based upon the calculation of
In response to the commenter that questioned CAT LLC's response that some of the largest Industry Members are not involved in order origination or originate few orders relative to their market activity,
Using transaction reports to identify the transaction for purposes of calculating the CAT fees as well as the CAT Executing Broker for each transaction for purposes of calculating the CAT fees is a straightforward and more objective method of identifying executing brokers than other methods, such as identifying an originating broker through an evaluation of CAT linkages. Although the definition of “CAT Executing Broker” may not be used by the industry or universally accepted, CAT Executing Brokers will be able review their transactions reports and request details regarding the calculation of their fees, which should allow them to better assess the impact of the Executed Share Model on their business models.
It is the Commission's view that charging CEBBs and CEBSs is reasonable. The Executed Share Model recognizes that there are three parties who play significant roles in transactions reportable to the CAT: the Participant, the buy-side and the sell-side.
In Rule 613, the Commission made the determination that the costs of the CAT should be shared by the Participants and Industry Members. Charging CAT Executing Brokers, clearing firms or “originating brokers” all would impose the costs initially on a subset of Industry Members. As discussed above, given that the charges are based on executed equivalent shares, it makes sense to use the CAT Executing Brokers as the immediate recipients of the charge. Accordingly, the Commission agrees with CAT LLC that it is reasonable to impose the charge on CAT Executing Brokers. The Commission acknowledges that charging CEBBs and CEBSs would impose a burden on such firms, which could potentially have an effect on their net capital. However, currently, such firms regularly pay transaction-based fees to the Participants, which they may pass-through to their customers who, in turn, could pass their CAT fees to their customers, until the fee is imposed on the ultimate participant in the transaction.
Under the Executed Share Model, Participants, CEBSs and CEBBs would be subject to fees designed to cover the ongoing budgeted costs of the CAT, as determined by the Operating Committee.
At the beginning of each year, the Operating Committee would set the Fee Rate to be used to determine CAT Fees.
CAT LLC proposed Section 11.3(a)(i)(A)(I) of the CAT NMS Plan to describe the annual calculation of the Fee Rate and the requirement for Participants to file a fee filing for CAT Fees to be charged to Industry Members calculated using the Fee Rate. Under the Executed Share Model, the Operating Committee will calculate the Fee Rate by dividing the reasonably budgeted CAT costs for the year by the reasonably projected total executed equivalent share volume of all transactions in Eligible Securities for the year.
Once the Operating Committee has approved such Fee Rate, the Participants shall be required to file with the Commission, pursuant to Section 19(b) of the Exchange Act,
Proposed Section 11.3(a)(i)(A)(II) of the CAT NMS Plan describes the mandatory mid-year calculation of the Fee Rate and the requirement for Participants to file a fee filing for CAT Fees to be charged Industry Members calculated using the Fee Rate. Under the Executed Share Model, the Operating Committee will adjust the Fee Rate once mid-year
CAT LLC proposed to add Section 11.3(a)(i)(A)(III) to the CAT NMS Plan to state that CAT Fees related to Prospective CAT Costs do not sunset automatically; such CAT Fees would remain in place until new CAT Fees are in place with a new Fee Rate.
CAT LLC proposed to add Section 11.3(a)(i)(A)(IV) to the CAT NMS Plan to provide that the first CAT Fee may commence at the beginning of the year or during the year. If it were to commence during the year, the CAT Fee would be calculated as if it were a mid-year calculation.
The proposed recovery of Prospective CAT Costs is appropriate. It is appropriate to require that each Participant, CEBB and CEBS pay a CAT Fee related to Prospective CAT Costs for each transaction in the prior month based on CAT Data.
The manner in which the Fee Rate for Prospective CAT Costs will be calculated (
The annual and mid-year adjustments of the Fee Rate for Prospective CAT Costs
The calculation of the Fee Rate for CAT Fees related to Prospective CAT Costs requires the determination of the Budgeted CAT Costs for the year or other relevant period.
Section 11.1(a) of the CAT NMS Plan describes the requirement for the Operating Committee to approve an operating budget for CAT LLC on an annual basis. It requires the budget to “include the projected costs of the Company, including the costs of developing and operating the CAT for the upcoming year, and the sources of all revenues to cover such costs, as well as the funding of any reserve that the Operating Committee reasonably deems appropriate for prudent operation of the Company.”
CAT LLC also proposed to amend Section 11.1(b) of the CAT NMS Plan to add a reference to Section 11.1. Currently, Section 11.1(b) states that “[s]ubject to Section 11.2, the Operating Committee shall have the discretion to establish funding for the Company” including establishing fees to be paid by the Participants and Industry Members (that shall be implemented by the Participants) . . .”
CAT LLC also proposed to add subparagraph (i) to Section 11.1(a) of the CAT NMS Plan to list the types of CAT costs to be included in the budget. Specifically, CAT LLC proposed to state that “[w]ithout limiting the foregoing, the reasonably budgeted CAT costs shall include technology (including cloud hosting services, operating fees, CAIS operating fees, change request fees and capitalized developed technology costs), legal, consulting, insurance, professional and administration, and public relations costs, a reserve, and such other categories as reasonably determined by the Operating Committee to be included in the budget.”
Certain commenters noted a lack of detail provided on the cost categories.
The commenter suggested enhancements to improve budget transparency.
In addition, the commenter suggested that exchanges be responsible for costs that exceed the budget in order to incentivize cost control,
Commenters also discussed a need for a cost review mechanism,
One commenter stated that asset managers were concerned about the lack of an independent cost review mechanism for the CAT budget to ensure that future fees are fair and reasonable and spending will be appropriate and cost-effective.
The commenter also suggested enhancements to reduce overall CAT operating costs.
In response to the comment that suggested that all CAT operating budgets should remain published on the CAT website,
In response to a commenter suggesting that the exchanges be responsible for any costs that exceeded the approved budget,
In response to suggestions to use an independent cost review mechanism,
CAT LLC provided a further response to commenters that recommended the adoption of an independent cost review mechanism for CAT costs,
In response to the commenter that asked whether the Participants would have an incentive to manage costs because they proposed to allocate most costs to Industry Members,
In response to comments expressing concern about increasing CAT operating costs,
In response to one commenter's recommendation that CAT LLC work with the Commission to identify technical requirements that could be modified to reduce costs without sacrificing the key benefits of the CAT system,
The Commission acknowledges the comments expressing concern about increases to the CAT operating budget, particularly why it is now five times the amount estimated in the CAT NMS Plan Approval Order,
One commenter requested further information to be provided on technology costs.
Additionally, one commenter recommended the inclusion of the Commission's line item costs associated with its usage and design of the CAT in the budget.
The Commission acknowledges the enhancements a commenter suggested to reduce CAT operating costs by modifying the technical specifications (
The use of budgeted CAT costs is appropriate to determine the Fee Rate because it ties the Fee Rate to the costs that the CAT will likely incur during the relevant period which are also the Prospective CAT Costs that will need to be apportioned among the Participants and CAT Executing Brokers.
The requirements that the Operating Committee approve a “reasonable” operating budget for CAT LLC,
CAT LLC proposed to add a requirement to Section 11.1(a)(i) of the CAT NMS Plan that the budget shall include “a reserve and such other cost categories as reasonably determined by the Operating Committee to be included in the budget.”
One commenter stated that the proposed reserve of not more than 25% of the CAT budget is excessive.
The Proposed Amendment providing that the annual operating budget include a reserve of not more than 25% of the annual budget is reasonable.
In addition, the Commission recognizes that if CAT fees exceed CAT costs, including the reserve, the surplus will be used to offset future fees, and that a reserve will only be included in the annual budget on which the fees are based if CAT LLC does not have a
To date, CAT has been solely funded by the Participants.
CAT LLC described the information that Participants would be required to include in their fee filings to be made pursuant to Section 19(b) of the Exchange Act and Rule 19b-4 thereunder for Industry Member CAT Fees in proposed paragraph (B) of proposed Section 11.3(a)(iii) of the CAT NMS Plan.
The collection of CAT Fees from Industry Members is subject to Section 11.6 of the CAT NMS Plan regarding the Financial Accountability Milestones.
As discussed above, one commenter stated that the budget line-item categories, which would be included in the Section 19(b) fee filings, are too high level.
The proposed process for implementing CAT Fees related to Prospective CAT Costs for Industry Members is reasonable. Under the Executed Share Model, the Participants would be required to submit fee filings pursuant to Section 19(b) of the Exchange Act to change the Fee Rates for Industry Members twice a year, once at the beginning and once during the year.
In addition to the budget information already provided by the Participants on the CAT website, the detail provided in the fee filings for the budget would provide transparency into the budget as it would describe the line items of the budget and any changes to the budget and allow the public the ability to comment on the budget.
One commenter objected to how the Proposed Amendment addressed the Financial Accountability Amendments Period 4
The commenter stated that this issue is “highly relevant to the Commission's analysis of the 2023 Funding Proposal”
In response to the commenter's criticism that the Proposed Amendment does not adequately address the Period 4 expenses,
As stated by the Participants, the Proposed Amendment acknowledges that the Participants are prohibited from submitting Exchange Act filings regarding Prospective CAT Fees until the Financial Accountability Milestone related to Period 4 described in Section 11.6 of the CAT NMS Plan has been satisfied.
CAT LLC proposed to describe the Participant CAT Fees related to Prospective CAT Costs in proposed Section 11.3(a)(ii) of the CAT NMS Plan. Specifically, under proposed Section 11.3(a)(ii)(A) of the CAT NMS Plan, each Participant that is a national securities exchange will be required to pay the CAT Fee for each transaction in Eligible Securities executed on the exchange in the prior month based on CAT Data. Each Participant that is a national securities association will be required to pay the CAT Fee for each transaction in Eligible Securities executed otherwise than on an exchange in the prior month based on CAT Data.
CAT LLC also proposed Section 11.3(a)(ii)(B) of the CAT NMS Plan to provide that Participants would only be required to pay CAT Fees when Industry Members are required to pay CAT Fees. CAT Fees charged to Industry Members become effective in accordance with the requirements of Section 19(b) of the Exchange Act.
It is reasonable to require that each Participant pay a CAT Fee related to
The Commission also believes it is reasonable that proposed Section 11.3(a)(ii)(B) provides that the Participants would be required to pay CAT Fees only when Industry Members are required to pay CAT Fees. The CAT Fees charged to Participants would be implemented through an approval of the CAT Fees by the Operating Committee and not through a plan amendment submitted each time the Fee Rate changes,
The Proposed Participant Fee Schedule is reasonable. As the Proposed Participant Fee Schedule requires each Participant to pay the CAT Fee detailed in Section 11.3(a) of the CAT NMS Plan on a monthly basis, based on the Participant's transactions in Eligible Securities in the prior month, in the manner prescribed by CAT LLC,
Under the Executed Share Model, Past CAT Costs will be recovered from CEBBs and CEBSs through Historical CAT Assessments.
The actual amount of Past CAT Costs to be recovered through the Historical CAT Assessments would be reduced by an amount of “Excluded Costs.”
Certain commenters objected to the method of calculating the Historical CAT Assessment using current transaction activity.
One commenter recommended a reevaluation of the use of transaction fees to assess Past CAT Costs,
Additionally, commenters objected to the allocation of Past CAT Costs to Industry Members.
Another commenter stated that it would be inappropriate to allocate any costs related to Thesys Technologies, LLC's role as the plan processor, including the costs of transitioning to a new plan processor, or the Operating Committee's costs of litigation against the Commission.
One commenter stated that Industry Members were not subject to CAT obligations before the CAT NMS Plan's approval, had no input into the selection of the service providers, and that “it is difficult to envision how the Participants could demonstrate that such an allocation provides for the equitable allocation of reasonable fees due to the fact that the CAT NMS Plan
The commenter also stated that the Participants have not analyzed different alternatives to collecting Past CAT Costs and the costs associated with such alternatives or the costs associated with the proposed approach.
With respect to one commenter's criticisms of the calculation and assessment of the Historical CAT Assessment,
In response, the commenter stated that the CAT LLC Response Letter did not meaningfully address the concerns it raised about “the inability of firms defined as `executing brokers' to transfer fees to those who may be more appropriate to bear certain historical CAT costs in the first place.”
In response to a commenter that stated that a small group of broker-dealers would shoulder the Historical CAT Costs and asked whether allocating these costs to a small group of executing brokers based on current market volume is consistent with the Exchange Act,
In response to the commenter that stated that Industry Members are bearing almost all of the CAT-related costs,
CAT LLC provided a comparison of Historical CAT Costs to Prospective CAT Costs, demonstrating that the $233 million 2023 CAT budget is approximately 45% of the $518 million in Historical CAT Costs (through 2022).
In response to commenters that objected to the allocation to Industry Members of Historical CAT Costs related to the initial Plan Processor,
In the Commission's view, the proposed recovery of Past CAT Costs via the Historical CAT Assessment is reasonable, and it is reasonable to require that each CEBB and CEBS pay a Historical CAT Assessment for each transaction in the prior month based on CAT Data.
Additionally, requiring CAT Executing Brokers to pay Historical CAT Assessments is appropriate because the Participants have thus far paid all Past CAT Costs and the CAT NMS Plan contemplates that both Industry Members and Participants would fund the Company.
In the Commission's view, requiring the Operating Committee to take into account fees, costs and expenses (including legal and consulting fees)
Finally, the Proposed Amendment sets forth a process that the Commission believes will offer an appropriate level of transparency into Historical CAT Costs. In response to a commenter that objected to the level of transparency provided about the total amount of Historical CAT Costs, and basic information about such costs, and stated that, as a result, the Commission cannot determine whether Historical CAT Costs are reasonable and cannot assess the impact of the proposed allocation on market liquidity, efficiency and competition,
In response to the comment that stated that the CAT Operating Committee has not assessed “whether trading activity may decline or bid-offer spreads may widen,”
The “Historical Recovery Period” would be used to calculate the Historical Fee Rate for a Historical CAT Assessment.
The Historical Fee Rate would be used to calculate Historical CAT Assessments. The Operating Committee will calculate the Historical Fee Rate for each Historical CAT Assessment by dividing the Historical CAT Costs for each Historical CAT Assessment by the reasonably projected total executed equivalent share volume of all transactions in Eligible Securities for the Historical Recovery Period.
Proposed Section 11.3(b)(i)(E) of the CAT NMS Plan provides that “[t]he Operating Committee shall reasonably determine the projected total executed equivalent share volume of all transactions in Eligible Securities for each Historical Recovery Period based on the executed equivalent share volume of all transactions in Eligible Securities for the prior twelve months.”
The calculation of the Historical Fee Rate by dividing Historical CAT Costs by the projected total executed equivalent share volume of all transactions in Eligible Securities for the Historical Recovery Period
Proposed Section 11.3(b)(i)(D)(II) of the CAT NMS Plan would describe the length of time that a Historical CAT Assessment would be in effect. This period of time may be longer or shorter than the Historical Recovery Period used to calculate the Historical Fee Rate for a Historical CAT Assessment. Each Historical CAT Assessment calculated
In the Commission's view, it is reasonable for Industry Members to be charged a Historical CAT Assessment until all Historical CAT Costs for the Historical CAT Assessment are collected. The Commission understands that the amount of Historical CAT Costs collected will vary depending on how the actual volume compares to the estimated volume. To the extent the actual volume exceeds the estimated volume, a Historical CAT Assessment would be collected faster and thus would be in effect for a shorter period. Similarly, to the extent the actual volume is less than the estimated volume, the Historical CAT Assessment would be collected slower and thus would be in effect for a longer period.
Once the Operating Committee has approved a Historical Fee Rate, the Participants shall be required to file with the Commission, pursuant to Section 19(b) of the Exchange Act,
Proposed Section 11.3(b)(iii)(B)(I) of the CAT NMS Plan would state that “Participants will be required to file with the SEC pursuant to Section 19(b) of the Exchange Act a filing for each Historical CAT Assessment.”
In addition, CAT LLC proposes to clarify that the Historical CAT Costs described in the fee filings must provide sufficient detail to demonstrate that such costs are reasonable and appropriate.
Proposed Section 11.3(b)(iii)(B)(III) provides that the Participants will not make CAT fee filings pursuant to Section 19(b) of the Exchange Act
The Commission emphasizes that the fee filings filed with the Commission, pursuant to Section 19(b) of the Exchange Act,
In the Commission's view, the proposed requirement for the Participants to file fee filings with the Commission, pursuant to Section 19(b) of the Exchange Act,
The Proposed Amendment offers an appropriate level of transparency into the Past CAT Costs used for the Historical CAT Assessment so that the industry and the public will be able to understand and assess the Past CAT Costs and the Historical Fee Rate. The Proposed Amendment requires the Section 19(b) fee filings to be submitted to the Commission by the Participants to establish the Historical CAT Assessments for Industry Members to contain the following information: “(A) the Historical Fee Rate; (B) a brief description of the amount and type of Historical CAT Costs, including (1) the technology line items of cloud hosting services, operating fees, CAIS operating fees, change request fees and capitalized developed technology costs, (2) legal, (3) consulting, (4) insurance, (5) professional and administration, and (6) public relations costs; (C) the Historical Recovery Period and the reasons for its length; and (D) the projected total executed equivalent share volume of all transactions in Eligible Securities for the Historical Recovery Period, and a description of the calculation of the projection.”
Proposed Section 11.3(b)(ii) of the CAT NMS Plan would clarify that the Participants would not be required to pay the Historical CAT Assessment as the Participants previously have paid all Past CAT Costs. It would state that, “[b]ecause Participants previously have paid Past CAT Costs via loans to the Company, Participants would not be required to pay any Historical CAT Assessment.”
The proposed allocation of the Historical CAT Assessment solely to CEBSs and CEBBs, and ultimately Industry Members, is reasonable. The Historical CAT Assessment will still be divided into thirds.
CAT LLC proposed to provide Participants and CAT Executing Brokers with details regarding the calculation of their CAT Fees upon request.
CAT LLC stated that consistent with Section 11.1(d) of the CAT NMS Plan, it will adopt policies, procedures and practices regarding the billing and
Similarly, as set forth in Section 3.7(b) of the CAT NMS Plan, each Participant must pay all fees or other amounts required to be paid under the Plan within thirty (30) days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated) (“Payment Date”). The Participant shall pay interest on the outstanding balance from the Payment Date until such fee or amount is paid at a per annum rate equal to the lesser of: (i) the Prime Rate plus 300 basis points; or (ii) the maximum rate permitted by applicable law.
The proposed provision to Participants and CAT Executing Brokers with details regarding the calculation of their CAT Fees upon request is reasonable. In the Commission's view, providing CAT Execution Brokers information regarding the calculation of their CAT Fees will aid in transparency and permit CAT Execution Brokers to confirm the accuracy of their invoices for CAT Fees. The publication of the aggregate executed equivalent share volume and aggregate fee is appropriate because it would allow Participants and CAT Executing Brokers a high-level validation of executed volume and fees.
CAT LLC proposed to delete the term “Execution Venue” and its definition from Section 1.1 of the CAT NMS Plan, explaining that this term is not relevant in the Executed Share Model.
CAT LLC also proposed to amend Section 11.2(c) and Section 11.3(a) and (b) of the CAT NMS Plan to require Participants and CAT Executing Brokers to pay CAT fees based on the number of executed equivalent shares in a transaction in Eligible Securities instead of based on market share and message traffic.
First, CAT LLC proposed to delete subparagraphs (i) and (ii) of Section 11.2(c) and replace these subparagraphs with the requirement that the fee structure in which the fees charged to “Participants and Industry Members are based upon the executed equivalent share volume of transactions in Eligible Securities.”
Second, CAT LLC proposed to amend Sections 11.3(a) and 11.3(b) of the CAT NMS Plan to remove detail regarding fixed fees and fee tiers for market share and message traffic by Participants and Execution Venue ATSs under the Original Funding Model.
CAT LLC also proposed to amend Sections 11.1(d), 11.2(c), 11.3(a) and 11.3(b) of the CAT NMS Plan to eliminate tiered fees and related concepts because the Executed Share Model does not utilize tiering.
In addition, CAT LLC proposed to amend the CAT funding principles to clarify that CAT Fees and the Historical CAT Assessments are intended to be cost-based fees.
In the Commission's view, the proposed deletion of the term “Execution Venue” from the CAT NMS Plan is reasonable because the term is no longer relevant to the CAT NMS Plan. The proposed Executed Share Model does not impose fees on Execution Venues and would instead impose fees on Participants and CAT Executing Brokers (and, ultimately, Industry Members) and therefore it is appropriate to delete the term.
Additionally, it is reasonable to amend Section 11.2(c) and Section 11.3(a) and (b) of the CAT NMS Plan to reflect the proposed use of the number of executed equivalent shares in transactions in Eligible Securities in calculating CAT fees. These changes are appropriate because, unlike the Original Funding Model, the proposed Executed Share Model would not use message traffic, or a tiered fee structure.
Further, the proposed elimination of tiered fees and related concepts from the CAT NMS Plan and the proposed replacement of “fixed fees” with references to “fees” in the CAT NMS Plan are reasonable. The Original Funding Model would use a tiered fee structure of fixed fees; however, the proposed Executed Share Model would require each Participant and CAT Executing Broker to pay a CAT fee based on its transactions in Eligible Securities.
Additionally, the Proposed Amendment would amend Section 11.2(c) to make clear that the fee structure established by the Operating Committee to charge fees to Participants and Industry Members would also be based on the costs of the CAT.
A number of commenters stated that the Proposed Amendment lacks input from the industry.
In response, CAT LLC stated that it has engaged with the industry on the funding model over the past seven years, explaining that it has discussed funding model issues with the CAT Advisory Committee, which includes representation from the industry, as well as with industry associations such as SIFMA and the Financial Information Forum, and with individual Industry Members; analyzed and responded to comment letters on the prior proposals; and hosted webinars for the industry on funding issues.
In response, one commenter stated that Industry Members are willing to work with the Commission and the Participants to develop a CAT funding model.
CAT LLC further responded to two commenters that stated that CAT LLC refused to collaborate with the industry in the development of the Proposed Amendment.
The Commission understands that Industry Members and other market participants have been able to provide input into CAT funding through meetings with CAT LLC, participation in webinars held by CAT LLC on CAT costs and potential alternative funding models,
One commenter suggested that upon approval of any CAT funding model, Industry Members should be given at least a year “to implement any necessary changes to systems and processes for them to be able to capture their portion of CAT costs.”
The Commission acknowledges this comment but highlights, as did CAT LLC,
Certain commenters stated that the CAT as it is structured today is not what was contemplated by Rule 613 of Regulation NMS.
Another commenter stated that some of the drivers of CAT costs are the addition of various new system features and reporting requirements that were established as the result of discussion between Commission staff and the CAT Operating Committee.
One commenter believes that the Commission should require an amendment to the CAT NMS Plan for new reporting requirements or enhancements for which costs and benefits were never considered by Commission in the economic analysis for the approval of the CAT NMS Plan.
Another commenter stated that changes and cost overruns have changed the structure of the CAT from what was contemplated by Rule 613.
The commenter also stated that the Commission must update the economic analysis from the CAT NMS Plan Approval Order
Additionally, the commenter stated that Rule 613 requires the Participants to provide an estimate of the costs associated with creating, implementing and maintaining the CAT, the costs, benefits and rationale for the choices made in developing the CAT NMS Plan, and their own analysis of the plan's impact on competition, efficiency and capital formation.
In response to one commenter that stated that Rule 613 and the CAT NMS Plan no longer reflect the operation of the CAT,
CAT LLC also responded to comments that raised concerns about the Commission's interpretations of CAT NMS Plan requirements that were not related to the funding model and the costs and benefits of those interpretations.
The CAT NMS Plan is consistent with Rule 613 and we do not believe that any changes have been made that are inconsistent with the Plan as approved in 2016, as amended in 2020.
Certain commenters believe that funding for the CAT should be accomplished through Congressional appropriations.
Another commenter stated that the Proposed Amendment is unconstitutional because it would require Industry Members to provide the Operating Committee with a blank check to fund 100% of costs in perpetuity for a law enforcement tool designed for the Commission that has not been authorized by Congress.
In response to recent comments expressing concern that the Industry Member allocation would raise constitutional issues,
In characterizing CAT as solely a “
In this respect, the CAT's regulatory and enforcement utility to the SROs as well as the Commission is similar to many of the SROs' other self-regulatory functions that are funded in part by Industry Members. And this dual purpose is consistent with the long history of SRO and Commission oversight of the securities markets. Self-regulation in the securities industry predates the securities laws and, in enacting the Exchange Act in 1934, Congress formalized this structure, purposefully determining to rely on self-regulation as a fundamental component of U.S. market and broker-dealer regulation.
The assertion by commenters that the funding of the CAT violates the Appropriations Clause or other constitutional limitations thus lacks merit. The funding of an initiative, such as CAT, that has utility to both the SROs and the Commission does not implicate the Appropriations Clause in the manner that has been questioned in courts.
Nor does Industry Members' participation in CAT funding implicate the Takings Clause. In choosing to participate in the securities industry, Industry Members could not have had any “distinct investment-backed expectations”
Finally, the creation of CAT falls within the Commission's authority under the Exchange Act.
More recently, Congress also directed the Commission to facilitate the establishment of a national market system in accordance with specified findings and objectives.
The creation of the CAT was an appropriate exercise of this authority. The Commission's task pursuant to the mandate in Section 11A has been to facilitate an appropriately balanced market structure that promotes competition among markets, while minimizing the potentially adverse effects of fragmentation. An appropriately balanced market structure also must provide for strong investor protection.
Contrary to one commenter's suggestion, the Supreme Court's major questions doctrine is not implicated here. In directing the SROs to act jointly to create an accurate, complete, accessible and timely audit trail to replace these existing audit trails, the Commission did not claim an “[e]xtraordinary grant[ ] of regulatory authority” based on “vague,” “cryptic,” “ancillary,” or “modest” statutory language.
Certain commenters believe the assessment of CAT fees on Industry Members through filings submitted by each exchange under Rule 19b-4 is likely inconsistent with Rule 608.
In response to one commenter that stated that the filing of Industry Member CAT fees under Rule 19b-4 likely violates Rule 608 of Regulation NMS,
The Commission disagrees with the commenters' position. The filing of Industry Member CAT fees under Rule 19b-4 is consistent with the structure of the CAT. The CAT NMS Plan functions as a joint agreement amongst the SROs who are parties to the CAT NMS Plan. But Industry Members are not parties to the Plan and the Plan itself does not bind Industry Members. Rather, Rule 608(c) of Regulation NMS requires each SRO to enforce compliance by its members with an effective NMS plan of which it is a sponsor or a participant.
The amendments to Rule 608 (“Rescission of Effective-Upon-Filing Procedure for NMS Plan Fee Amendments”), among other things, rescinded Rule 608(b)(3)(i),
In contrast, all Industry Members who are CAT Reporters are members of at least one Participant. Industry Members are bound by the rules of the Participant(s) of which they are members. The process for adopting rules of a Participant that affect their members is through the Section 19(b) rule filing process, which includes the ability to adopt immediately-effective fees.
One commenter stated that the CAT governance structure is flawed because exchange groups with multiple affiliated exchanges have “significant influence” over the Operating Committee and can “dictate many CAT-related decisions” such as the allocation of CAT costs.
The commenter recommended the following enhancements to improve CAT governance: (1) each exchange group and national securities association should have one vote on the Operating Committee, but will have a second vote if “the exchange group or national securities association has a market center or centers that trade more than 15 percent of consolidated equity and options market share;”
In response to comments objecting to a lack of Industry Member voting representation on the Operating Committee and suggesting their inclusion based on the proportion of costs allocated to them,
In response to a comment suggesting changes to the allocation of Participant voting rights,
Regarding SRO and Industry Member voting rights, the Commission does not believe that modification of the voting rights, which the Commission considered when it approved the CAT NMS Plan, is within the scope of the Proposed Amendment.
Certain commenters urged the Commission to address data security concerns associated with the CAT.
One commenter expressed concern that the Commission would approve the Proposed Amendment prematurely without careful consideration.
In response to comments that urged the Commission to prioritize CAT data security concerns,
CAT LLC also responded to comments that expressed concern that the Commission was considering the Proposed Amendment while also considering changes to Commission rules governing equity market structure.
In response to the commenter that stated that the Commission would be rushing to approve the Proposed Amendment,
The CAT data security issues and the costs and benefits of unrelated pending equity market structure proposals
In determining whether to approve a proposed amendment, and whether such amendment is in the public interest, Rule 613 requires the Commission to consider the potential effects of the proposed amendment on efficiency, competition, and capital formation.
Based on its analysis, the Commission believes that the Proposed Amendment will involve efficiency gains along some dimensions but will likely also involve tradeoffs against other forms of efficiency, could negatively alter the competitive position of particular competitors, though the fees associated with the Proposed Amendment are unlikely to be large enough to affect overall competition, and will result in insignificant effects on capital formation.
In the CAT NMS Plan Approval Order, the Commission identified certain elements of the Original Funding Model that could have negative implications for efficiency and also stated that the significant uncertainty in the Original Funding Model could also have implications for efficiency.
The tiered structure of the Original Funding Model would also have led to uncertainties affecting operational efficiencies of Industry Members and Participants. In particular, Industry Members would not have known their per-message cost until the end of the month, though they would have charged their customers in real time, creating an inefficiency. In particular, the Original Funding Model would have charged flat fees to Industry Members and Participants in the same tiers (“Original CAT Fees”). Thus, Industry Members with message traffic near the top of the tier would pay lower fees per message than Industry Members in the same tier but with lower message traffic. Likewise, Participants with more market share in their tiers would pay lower fees per executed share. Even if Industry Members and Participants could predict which tier they would be in, passing-through fees would involve Industry Members and Participants charging based on expected per-message or per-share Original CAT Fees rather than actual per-message or per-share Original CAT Fees, which could have been higher or lower than expected. This uncertainty creates an operational inefficiency in structuring the fee pass-through.
Also, charging Industry Members a flat fee that depends on their message traffic could result in Industry Members, who generally earn revenue only for executed orders,
Complexities associated with creating tiers in the Original Funding Model would also have created operational inefficiencies. To ensure that the CAT NMS Plan covered its costs with the tiered fees, the creation of the fee schedule would have involved deciding on the number of tiers, estimating how many Industry Members would qualify for each tier, estimating how much to charge each tier, and then justifying each decision. The potential for disagreements resulting from the complexity and the challenges in drafting justifications for such complex decisions could have involved a cumbersome and inefficient fee setting experience.
The Original Funding Model also could have affected efficiency by skewing incentives. Because fees to be charged by CAT are based on cost recovery, aligning such fees with burdens on CAT could promote efficiency by creating incentives to limit costs. If message traffic is the only cost driver of CAT, the Original Funding Model created incentives for Industry Members to limit costs by limiting their unnecessary message traffic,
While the Original Funding Model would have set fees for Industry Members based on their message traffic, the efficiency benefits were unlikely to have been significant. First, its tiered structure would have dampened the incentives to reduce the costs of CAT by reducing unnecessary message traffic. In particular, the Original Funding Model would have assigned Industry Members to tiers based on their message traffic. Within a tier, however, all Industry Members would have been charged the same flat fee. Thus, an additional message would have been free in terms of CAT costs unless it put the Industry Member into a higher tier. So, only those Industry Members close to a cutoff would have had the incentive to reduce message traffic, and Industry Members who expected to be in the top tier would have had no incentive to reduce unnecessary message traffic. Further, Industry Members cannot reduce message traffic without altering how they handle customer orders, which could be counter to their duties, or reducing liquidity, which could reduce market efficiency. Therefore, absent evidence of significant unnecessary message traffic, the efficiency improvements of basing Original CAT Fees on message traffic are unlikely to have been significant.
In addition, since the approval of the CAT NMS Plan, additional information about the cost drivers have been made public and suggest that message traffic is not the only cost driver.
The Original Funding Model did not indicate how Original CAT Fees would be allocated to equities versus options, but this allocation decision would have had an effect on efficiency. The options markets account for the vast majority of message traffic, but most of the options market message traffic is on-exchange message traffic (mostly market maker quotes).
The Original Funding Model also had the potential to result in a lack of incentives for Participants to seek efficient ways to achieve the regulatory objectives of CAT.
The ability for Participants and Industry Members to pass through fees could reduce incentive effects of the Original Funding Model, but the Commission believes that Participants and Industry Members would still have had some incentives to limit costs. In the CAT Approval Order, the Commission recognized that FINRA could pass through its fees to its members.
The Original Funding Model could have resulted in market inefficiencies, though these inefficiencies were unlikely to be significant.
The Participants provided an analysis of efficiency in the Notice. In particular, the Participants state that, “By providing for the financial viability of the CAT, the [Executed Share Model] would allow the CAT to provide its intended benefits. For example, the CAT is intended to provide significant improvements in efficiency related to how regulatory data is collected and used. In addition, the CAT could result in improvements in market efficiency by deterring violative activity.”
The Commission considered whether the Executed Share Model promotes efficiency along several dimensions: operational efficiency, incentive alignment, and market efficiency. In this analysis, the Commission considered both how the Executed Share Model differs from the Original Funding Model and the additional details in the Executed Share Model not previously included in the CAT NMS Plan. In the analysis below, the Commission explains that the Executed Share Model itself will promote operational efficiency and market efficiency, trade off some efficiencies associated with aligning fees with CAT costs against others, and create some efficiency-improving incentives at the expense of others. The analysis also recognizes below that some commenters stated that the Executed Share Model is less efficient than it could be.
The Commission believes that the Executed Share Model presents some operational efficiency improvements over the Original Funding Model while recognizing that commenters point out that it may not be as efficient as other alternatives. The Executed Share Model could improve efficiency over the Original Funding Model by providing more certainty on potential costs for Industry Members and by reducing the complexity of the fees. However, it is not clear that the Executed Share Model presents an operational efficiency improvement over the Original Funding Model with respect to precision of estimates of expected total fees to be collected.
Relative to the Original Funding Model, Industry Members and Participants will be better able to observe their fee per activity, in this
The Commission believes that the Executed Share Model reduces the complexities of the Original Funding Model, improving operational efficiency, but that the Executed Share Model may not increase the precision in estimating the fees to be collected, thus creating uncertainty in its impact on operational efficiency. The Executed Share Model will not involve designing a tiered structure that estimates how many Industry Members and Participants will qualify for each tier based on projections of each's message traffic or market share, coming up with cutoffs and flat fees in each tier to cover projected costs, and justifying each projection model, tier cutoff, and flat fee. Instead, the Executed Share Model involves estimating future volume, dividing budgeted costs by the estimated future volume, and justifying the estimated future volume model and budgeted costs. Thus, the Executed Share Model will be much less complex for Participants to implement. However, because the Executed Share Model involves estimating future volume and the Commission has observed significant fluctuations in volume, the fees actually collected in the Executed Share Model will not necessarily match the budgeted costs. Because the Original Funding Model had similar uncertainties, the Commission cannot determine if this inefficiency is more or less severe for the Executed Share Model.
The Commission recognizes the inefficiencies pointed out by some commenters associated with invoicing CEBBs and CEBSs directly rather than using clearing brokers to collect fees.
The Commission recognizes the potential for the Executed Share Model to affect incentives and, therefore, either improve or harm efficiency. Aligning fees with costs promotes economic efficiency because Industry Members and Participants bear the costs they directly or indirectly impose on CAT NMS, creating the incentive to limit costs. Overall, the Executed Share Model will have inefficiencies related to not perfectly aligning with costs, but might not be any more inefficient than
Because CAT costs have some relation to message traffic, a fee schedule less dependent on message traffic such as the Executed Share Model will be less efficient on this dimension. As such, the Executed Share Model could create inefficiencies relative to the message-traffic based Original Funding Model. Further, the Executed Share Model could result in Participants or Industry Members paying different fees across transactions despite potential similarities in cost. For example, Participants or Industry Members will be charged ten times the fee for a 1,000 share transaction than for a 100 share transaction. While 1,000 share transactions may, on average, have a higher burden on CAT than a 100 share transaction because such transactions are more likely to involve more messages and more complex lifecycles, the burden of a 1,000 share transaction on CAT versus a 100 share transaction is unlikely to be ten times higher. However, the incentive efficiencies of the message-traffic based fees in the Original Funding Model would have been dampened by several factors,
One commenter raised other potential inefficiencies related to outsized allocations to transactions for retail investors associated with those retail investors trading low priced NMS stocks.
Further, if the Executed Share Model over-allocates fees to equity market transactions relative to options market or OTC equity transactions, it will create inefficiency by artificially inflating equity transaction costs while artificially decreasing options and OTC transaction costs. The Commission has mixed information on whether the Executed Share Model will, indeed, over-allocate fees to the equity markets. One commenter stated that equity trading volume creates a relatively low burden relative to options activity.
However, because equity order linking complexity likely accounts for higher costs than option order linking complexity, the higher allocation of CAT fees to equity market Participants and Industry Members could promote efficiency. The linkage processing costs of CAT are three times the storage costs.
The Commission believes that the Executed Share Model presents a risk, as the Original Funding Model did,
The Participants have stated that the transparency and level of detail in the fee filings will impose a discipline on the Participants to justify the costs of CAT.
The Participants also disagree that they are not incentivized to manage costs with a one-third allocation. They argue that currently, there is a strong incentive to manage costs while paying 100% of the costs and that incentive will continue with a one-third allocation. They state that CAT costs are substantial and they will continue to receive critical review.
The Commission believes the Executed Share Model trades off incentives to inefficiently spend too much against incentives to inefficiently spend too little. The Commission does not believe that being responsible for CAT costs (or having to internalize CAT costs they do not pass through) will result in Participants having the incentive to under-spend on regulatory tools.
One commenter stated that charging for Historical CAT Costs using current volumes bears no relation to the contributions to CAT Costs.
The Executed Share Model could change other incentives that could potentially affect efficiencies, but the expected magnitude of CAT Fees will mitigate the impact of such incentive changes. For example, if the fees for OTC transactions are not passed on to non-FINRA members, the Executed Share Model could discourage FINRA membership by those who have a choice. Further, the Historical Fee Rate in Exhibit C of $0.0000417950 per Executed Equivalent Share would result in each CEBB and CEBS paying $0.00001393167 per Executed Equivalent Share (one third of $0.0000417950). A comparison to recent Section 31 fees of $0.00009 per share to $0.0004 per share
The Commission believes that the Executed Share Model will promote market efficiency, but has uncertainty as to the degree of any improvement. The Executed Share Model eliminates the disincentives to provide liquidity of the Original Funding Model that could have resulted in market inefficiencies, including removing the potential for perverse incentives near the tier cutoffs.
Some commenters stated that the Proposed Amendments would harm liquidity provision and increase costs for investors, thus harming market efficiency.
Some commenters argued that under the Proposed Amendment all CAT fees will ultimately be passed through to investors
Several commenters stated that the Proposed Amendments present a burden on competition.
In the CAT NMS Plan Approval Order, the Commission identified certain elements of the Original Funding Model that could have negative implications for competition in trading services, broker-dealer services, and regulatory services.
The market for trading services, which is served by exchanges, ATSs, and liquidity providers (internalizers and others), relies on competition to supply investors with execution services at efficient prices. These trading venues, which compete to match traders with counterparties, provide a framework for price negotiation and disseminate trading information. The competitors for trading services compete on a number of dimensions, such as transaction fees and execution quality, and some attempt to attract order flow by paying for that order flow or otherwise rebating.
The market for trading services in options and equities consists of 24 national securities exchanges, which are all Plan Participants, and off-exchange trading venues including broker-dealer internalizers, which execute substantial volumes of transactions in equities, and 39 ATSs, which are not Plan Participants.
In the Original Funding Model, the portion of fees allocated to the exchanges, FINRA, and ATSs would have been divided among them according to market share of share volume and the portion allocated to Industry Members would have been divided among them according to message traffic, including message traffic sent to and from an ATS.
For simplification, the Commission presents its analysis as if the competition to provide broker-dealer services encompasses one broad market with multiple segments even though, in terms of competition, it actually may be more realistic to think of it as numerous inter-related markets. There are approximately 1,100 broker-dealers that are CAT Reporters.
The market for broker-dealer services relies on competition among broker-dealers to provide the services listed above to their customers at efficient levels of quality and quantity. The broker-dealer industry is highly competitive, with most business concentrated among a small set of large broker-dealers and thousands of small broker-dealers competing for niche or regional segments of the market. Broker-dealers often compete among each other through commission rates, service quality, and service variety and some bundle their services. At present, some broker-dealers specializing in individual investors charge zero commissions and instead cover costs by receiving payment for order flow or charging more for other services. To limit costs and make business more viable, small broker-dealers often contract with larger broker-dealers or service bureaus to handle certain functions, such as clearing and execution, or to update
Some broker-dealers may offer specialized services in one line of business mentioned above, while other broker-dealers may offer diversified services across many different lines of businesses. As such, the competitive dynamics within each of these specific lines of business for broker-dealers is different, depending on the number of broker-dealers that operate in the given segment and the market share that the broker-dealers occupy.
The CAT NMS Plan Approval Order described the Original Funding Model as an explicit source of financial obligation for broker-dealers and therefore an important feature to evaluate when considering potential differential effects of the Plan on competition in the market for broker-dealer services.
In the CAT Approval Order, the Commission considered the effect of the CAT NMS Plan on competition to provide regulatory services.
RSAs are contracts that would not be renegotiated as often as CAT Fees would vary, which limits the precision to which FINRA can increase the charges on these agreements as a mechanism to pass through its CAT Fees. Since the start of the CAT NMS Plan implementation, the Commission has not observed a change in the competition for regulatory services.
The Participants state that, “the [Executed Share Model] would not impose an inappropriate burden on competition,” arguing that transaction-based models for fee recovery are already in place.
The Commission believes that the Proposed Amendment may provide a competitive advantage for exchanges over off-exchange trading venues, but this advantage may not be large relative to the level of competition and relative to the advantages for exchanges in the Original Funding Model. In particular, the Executed Share Model will allocate higher CAT fee allocations to Industry Members relative to Participants, but exchanges, one type of Participant, could be in a better position to avoid raising transaction fees to offset their CAT fee allocations. Using March 2023 data, the Commission estimates that 31% of share volume is reported to FINRA trade reporting facilities while the remaining 69% is reported by exchanges.
The Executed Share Model could increase the costs of internalization
More generally, any market makers, whether on exchange or not, will be charged fees for their proprietary trading, and this could create competitive advantages in certain situations. The Commission recognizes that this likely would result in on-exchange market makers in equities being at a competitive disadvantage in having to absorb the fees because they do not know the identities of their counter-parties to directly pass-through the fees and they do not have other arrangements, such as payment for order flow, that could facilitate indirectly passing-through fees. Because other liquidity providers who post limit orders and quotes to trade would face the same cost, the displayed quotations on exchanges could appear to be less competitive overall but would likely increase only marginally—enough to cover CAT assessments. Such a marginal increase could also help to offset any disadvantage to internalization because marginally wider spreads could help internalizers avoid reductions in price improvement and payment for order flow. In options, however, the Executed Share Model could result in exchange members who bring an order to an exchange experiencing a competitive advantage in price improvement auctions. In particular, because knowing who is responsible for the order allows them to pass-through their fees, they can bid more competitively in the auctions than can exchange members who cannot directly pass-through the fees.
However, the Commission believes that the magnitude of changes in any competitive advantages or disadvantages is unlikely to significantly affect order flow because fee differences between competing venues are only one of many factors (such as availability of non-displayed order types and price impact characteristics of transactions on different venues) that broker-dealers consider when choosing how to route their order flow. Further, the Executed Share Model levels the playing field between exchanges and ATSs relative to the Original Funding Model.
The Commission believes that the Executed Share Model alleviates concerns with the Original Funding Model about the allocation of fees across small and large broker-dealers. In particular, by charging CEBBs and CEBSs based on Executed Equivalent Shares, small broker-dealers are less likely to face CAT fees that are outsized relative to their revenue, whether they act as executing brokers or are charged pass-throughs by executing brokers. This could reduce barriers to entry.
On the other hand, the efficiency gains in passing through fees from the Executed Share Model will not be evenly distributed across broker-dealer competitive strategies. In particular, where competition has driven commissions to zero, the Executed Share Model Fees are more easily passed through to customers of broker-dealers who offer a wider variety of services than for broker-dealers who do not. These latter broker-dealers could be at a competitive disadvantage if they have no other option but to absorb such fees or accept reduced payment for order flow as a form of pass-through from executing brokers. Because more established broker-dealers are more likely to be the ones offering a wider variety of services, this effect could increase barriers to entry.
Furthermore, as one commenter stated, there may be capital requirements associated with carrying the receivable associated with passing-through these CAT fees, which could be burdensome for small and medium-sized Executing Brokers.
One commenter stated that the top 10 (20) Industry Members would be allocated 50% (70%) of the fees under the Executed Share Model, “unduly burdening competition”.
The Commission recognizes that if FINRA were to pass through its CAT fees by increasing its fees for RSAs over time, FINRA could be less competitive in providing regulatory services.
In the CAT NMS Plan Approval Order, the Commission stated that the Original Funding Model for CAT was not wholly certain and, thus, stated the “view that there is uncertainty concerning the extent to which investors will bear Plan costs and consequently to what extent Plan costs could affect investors' allocation of capital.”
The Commission recognizes that the Proposed Amendment may have negative effects on capital formation if the CAT fees ultimately borne by investors are large enough to affect investors' allocation of capital or if capital constraints of small or mid-sized broker-dealers significantly hinder innovating to find more efficient ways to service investors.
For the reasons discussed, the Commission, pursuant to Section 11A of the Exchange Act,
For the reasons set forth above, the Commission finds that the Proposed Amendment meets the required standard.
By the Commission.