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Agricultural Marketing Service, Department of Agriculture (USDA).
Interim rule.
This rule temporarily changes the substandard and maturity dockage requirements for raisins covered under the Federal marketing order for raisins produced from grapes grown in California (Order). For the 2023-2024 crop year, the minimum requirements for substandard and maturity dockage in the marketing order's handling regulations will be relaxed to accommodate raisins adversely impacted by severe weather conditions.
Effective on December 12, 2023. Comments which are received by February 9, 2024, will be considered prior to the issuance of any final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or via internet at:
Jeremy Sasselli, Marketing Specialist, or Gary Olson, Chief, West Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901 or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Assistant to the Director, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement and Order No. 989, both as amended (7 CFR part 989), hereinafter referred to as the “Order,” and the applicable provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of growers and handlers of raisins operating within the area of production, and a public member.
The Agricultural Marketing Service (AMS) is issuing this rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866, 13563, and 14094 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 directs agencies to conduct proactive outreach to engage interested and affected parties through a variety of means, such as through field offices, and alternative platforms and media. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. AMS has determined that this rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.
This interim rule temporarily relaxes the substandard and maturity dockage minimum requirements for incoming raisins covered under the Order for the 2023-2024 crop year. Section 989.58 requires natural condition raisins that do not meet the minimum requirements must be returned by handlers to producers, reconditioned by handlers at the producers' expense, or disposed of in a non-normal outlet such as animal feed at a much-reduced producer price. Provided, that handlers may acquire natural condition raisins which exceed the tolerance established for maturity under a weight dockage system. Under the Order, handlers acquire raisins from producers under a weight dockage system and adjust the creditable fruit weight acquired according to the
Prior to the 2022-2023 winter, the raisin growing region in California suffered multiple years of extreme drought, which had long-term detrimental effects on California grape vineyards. Further, over the course of the 2022-2023 winter, temperatures across California were colder than average, rainfall in the San Joaquin Valley exceeded normal levels, and snowfall in the Sierra Nevada greatly exceeded normal levels, leading to one of the largest snowpacks on record. Additionally, in 2023 a series of intense storms brought rain onto the record snowpack, causing rapid snowmelt which had disastrous flooding effects in parts of the San Joaquin Valley, including the historic filling of the Tulare Lake Basin. However, the full effect of such severe weather conditions on raisin grape production only became apparent to producers when dehydrators began their grape dehydrating activities in mid to late August 2023.
During its October 5, 2023, meeting, the Committee determined that rain and cold temperatures into late spring and early summer delayed crop maturity and that record rain and snowmelt created exceptionally high humidity levels throughout the production area, causing some bunch rot and mildew issues. In addition, hurricane Hillary perpetuated these conditions at the end of August 2023 by bringing unseasonal and substantial rainfall throughout the raisin growing region. The crop was also late by at least three weeks, and temperatures in September and into October were below average, which extended the raisin drying period and has delayed deliveries to handlers. Thus, raisins delivered to handlers by producers are failing to meet the Order's minimum requirements. This is evident by incoming inspections reported to the Committee since the beginning of the 2023-2024 crop year (August 1) having shown an increase of approximately 160 percent in off-grade natural condition raisins over the average of the past 4 years (29.1 percent versus 11.2 percent). All other varieties of raisins have also shown a 155 percent increase in off-grade over the previous 4-year average (26.0 percent versus 10.2 percent). Relaxing the limits for the 2023-2024 crop year will reduce the number of failing lots of raisins that must either be returned by handlers to producers, reconditioned by handlers at the producers' expense, or disposed of through non-normal outlets. This rule will provide cost savings to producers by minimizing reconditioning and reinspection costs and avoid further delays affecting producer deliveries in the 2023-2024 crop year. The Committee unanimously recommended this action during its October 5, 2023, meeting.
Section 989.58(a) of the Order provides authority for the establishment of incoming grade, quality, and condition requirements for natural condition raisins that are delivered from producers to handlers. This section also contains authority for handlers to acquire natural condition raisins which fall outside the tolerance established for maturity, which includes substandard raisins, under a weight dockage system.
Section 989.701 of the Order establishes the minimum grade and condition standards for natural condition raisins. Product that does not meet those requirements is considered substandard. Handlers may acquire product that is determined to be substandard under a weight dockage system. The regulations delineating the Order's weight dockage system are contained in §§ 989.212 and 989.213. Under those provisions, handler acquisitions of raisins, and payments to producers for such raisins, are adjusted according to the percentage of substandard raisins in each lot and/or the percentage of raisins that fall below certain levels of maturity of each lot. Product that does not meet the minimum requirements under the weight dockage system is considered off-grade and must be returned to producers, reconditioned, or disposed of in an eligible non-normal market outlet that does not compete with standard raisins.
Section 989.701 of the Order's regulations specifies the minimum quality requirements for natural condition raisins. Lots of raisins may contain a maximum percentage, depending on varietal type, of substandard raisins (raisins that show development less than that characteristic of raisins prepared from fairly well-matured grapes). Specifically, lots of Natural (sun-dried) Seedless, Monukka, Other Seedless, Dipped Seedless, Oleate and Related Seedless, Other Seedless-Sulfured, and Golden Seedless raisins may contain no more than 5 percent, by weight, of substandard raisins. Lots of Muscat, Sultana, and Zante Currant raisins may contain no more than 12 percent, by weight, of substandard raisins.
Section 989.212 provides that handlers may acquire, under an agreement with a producer, raisins that fall outside the tolerance for substandard raisins specified in § 989.701. Specifically, handlers may acquire any lot of Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, and Other Seedless-Sulfured raisins which contain from 5.1 through 17.0 percent, by weight, of substandard raisins under a weight dockage system. A handler may also acquire, subject to prior agreement, any lot of Muscat (including other raisins with seeds), Sultana, and Zante Currant raisins containing from 12.1 through 20.0 percent, by weight, of substandard raisins under a weight dockage system. The creditable weight of each lot of raisins acquired by handlers under the substandard dockage system is obtained by multiplying the applicable net weight of the lot of raisins by the applicable dockage factor from the tables in § 989.212. The dockage factor reduces the weight of the raisin lot by an amount approximating the weight of the raisins needed to be removed for the remainder of the lot to meet minimum grade requirements after processing and packing. The weight determined in this manner represents the creditable weight of the raisins which is used as a basis for applicable handler assessments and handler payments to producers for product received. However, those raisins failing to meet the established substandard tolerance levels (17.0 or 20.0 percent, depending on varietal type) must be returned to the producer or
Because of the adverse crop conditions described above, the industry producers and handlers are dealing with a relatively high percentage of the 2023 crop (marketed over the 2023-2024 crop year) that is falling outside the limits of the substandard dockage systems when delivered to handlers. Further, the Committee has reported that, to date, approximately 29.1 percent of natural condition raisins delivered to handlers, and approximately 26.0 percent of all other varieties of raisins, have been off-grade, requiring reworking or disposition into non-normal market outlets. In comparison, the average percentages for off-grade deliveries for the 4 years prior to the 2023-2024 crop year shows approximately 11.2 percent and 10.2 percent, respectively.
The Committee recommended that the allowable maximum percentage of substandard raisins in producer deliveries that can be acquired under the dockage system be increased, from 17.0 to 21.0 percent for Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, and Other Seedless-Sulfured raisins, and from 20.0 to 25.0 percent for Muscat (including other raisins with seeds), Sultana, and Zante Currant raisins. Lots containing more than 21.0 or 25.0 percent, depending on varietal type, of substandard raisins will be considered off-grade and require reconditioning before they can be acquired by handlers. This rule makes appropriate changes to § 989.212 to incorporate the Committee's recommendations. The changes will apply for the 2023-2024 crop year only.
Increasing the percentage allowed for substandard raisins in incoming fruit is expected to reduce the number of failed lots of raisins returned by handlers to producers or reconditioned by handers at the producers' expense or disposed of in a non-normal outlet such as animal feed at a much-reduced producer price. Under the relaxation, handlers will be able to acquire more lots of raisins upon first inspection and not experience the potential delay of waiting for failing lots to be reconditioned. The ability to acquire more raisins upon first inspection will help handlers better meet the needs of the market and save producers the cost of reconditioning and reinspecting failed fruit that would otherwise have passed incoming inspections and be received by handlers.
Section 989.701 of the Order's regulations specifies that lots of certain varietal types of natural condition raisins must contain a minimum percentage of raisins that are well-matured or reasonably well-matured. Specifically, lots of Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, and Other Seedless-Sulfured raisins must contain at least 50 percent, by weight, of raisins that are well-matured or reasonable well-matured, or what is commonly referred to by the industry as the “B or better” maturity standard.
Section 989.213 provides that handlers may acquire, under an agreement with a producer, raisins falling outside the tolerance for maturity specified in § 989.701. Specifically, handlers may acquire any lot of Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, Other Seedless-Sulfured raisins which contain from 35.0 to 49.9 percent, by weight, of well-matured or reasonable well-matured raisins under a weight dockage system. The dockage system is applied similarly to the substandard dockage system previously described. The creditable weight of each lot of raisins acquired by handlers under the maturity dockage system is obtained by multiplying the applicable net weight of the lot of raisins by the applicable dockage factor in the tables in § 989.213. The dockage factor reduces the weight of the raisins needed to be removed for the remainder of the lot to meet minimum maturity requirements after processing and packing. The weight determined in this manner represents the creditable weight of the raisins which is used as a basis for payment of handler assessments and handler payments to producers for product received. Those raisins failing to meet the maturity tolerance level of 35.0 percent are returned to the producer or reconditioned by the handler (at the producer's expense) to bring the lot up to acceptable quality standards. If a lot of raisins is subject to both a maturity and substandard dockage factor, only the highest of the two dockage factors is applied, as stated in § 989.210(d).
In addition, the maturity dockage system is divided into three categories depending on the percentage of well-matured or reasonably well-matured raisins in the lot. The creditable fruit weight of raisins delivered by producers to handlers in the first category, which includes lots containing between 45.0 to 49.9 percent well-matured or reasonably well-matured raisins, is reduced .05 percent for each 0.1 percent the lot is below 50.0 percent down to 45.0 percent. The creditable fruit weight of raisins delivered by producers to handlers in the second category, which includes lots containing between 40.0 to 44.9 percent well-matured or reasonably well-matured raisins, is reduced 0.1 percent for each 0.1 percent the lot is below 44.9 percent down to 40.0 percent. The creditable fruit weight of raisins delivered by producers to handlers in the third category, which includes lots containing between 35.0 to 39.9 percent well-matured or reasonably well-matured raisins is reduced 0.15 percent for each 0.1 percent the lot is below 39.9 percent down to 35.0 percent. Applicable handler assessments and producer payments for product received are reduced accordingly. Because of the adverse crop conditions described above, the industry predicts that a relatively high percentage of the 2023 crop will fall below the 35.0 percent tolerance level for maturity when product is delivered to handlers. So far this crop year, approximately 29.1 percent of natural condition raisins have been off-grade and require reconditioning to enter the market. In addition, approximately 26.0 percent of all other varieties have been off-grade.
The Committee recommended that the minimum allowable level for maturity of raisins delivered by producers that can be acquired under the dockage system be reduced, for the 2023-2024 crop year only, from 35.0 to 30.0 percent under a fourth category in the regulation. The Committee also recommended that the creditable fruit weight of raisin deliveries in this fourth category created for the 2023-2024 crop year, or lots containing between 30.0 to 34.9 percent well-matured or reasonably well-matured raisins, be reduced by 0.2 percent for each 0.1 percent the lot is below 34.9 percent down to 30.0 percent. Applicable handler assessments and producer payments for product received will be reduced accordingly. Lots containing 29.9 percent or less raisins which are well-matured or reasonably well-matured raisins will be considered off-grade and require reconditioning before they can be acquired by handlers. A new paragraph (e) is added to § 989.213 for this fourth category and applies only to product handled during the 2023-2024 crop year.
Similar to relaxing the requirements under the substandard dockage system,
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this interim rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 1,700 producers of California raisins and approximately 17 handlers subject to regulation under the Order. Small agricultural producers of raisins are defined by the Small Business Administration (SBA) as those having annual receipts equal to or less than $4.0 million (NAICS code 111332, Grape Vineyards) and small agricultural service firms are defined as those whose annual receipts are equal to or less than $34.0 million (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201).
Using USDA National Agricultural Statistics Service (NASS) data, the 2022 season average value of utilized production of California processed raisin-type grapes (most of which are dried into raisins) is $376.6 million. Dividing that figure by 1,700 producers yields an annual average revenue per producer of $221,530, well below the SBA large farm size threshold of $4.0 million. Therefore, in terms of average annual sales of processed raisin-type grapes, the majority of California raisin producers may be classified as small entities.
To make a similar computation for handlers, the first step is to estimate a representative handler price received per pound for packaged raisins. Recent USDA purchases under the Commodity Procurement Program provide such an estimate. For the most recent raisin crop year used by the RAC (August 2022-July 2023) the average price paid for packaged raisins purchased by the USDA for feeding programs was $1.56 per pound. For that time period, the RAC provided a list of quantities delivered by handlers. When multiplied by the $1.56 price per pound, the results showed that 5 handlers had annual raisin receipts greater than $34.0 million, the SBA threshold level for a large handler. The remaining 12 handlers out of 17 are small handlers, using the SBA criterion.
This rule relaxes the substandard and maturity dockage requirements specified in §§ 989.212 and 989.213, respectively, of the Order's handling regulations. These sections allow handlers to acquire raisins from producers that do not meet the Order's minimum quality requirements under a weight dockage system. Under the system, handlers adjust their payments to producers for product received, and the payment of Order assessments, according to the percentage of substandard raisins in the lot and/or the percentage of raisins falling below certain levels of maturity. Because of extreme weather issues which adversely affected the growing conditions of the raisin grape vines for the 2023 crop, the industry predicts that a high percentage of the 2023-2024 crop year delivers by producers to handlers will continue to fall outside the current limits of the dockage systems in the handling regulations. Relaxing the minimum requirements under the dockage systems is expected to reduce the number of lots of raisins returned by handlers to producers or reconditioned by handlers at the producers' expense or disposed of in a non-normal outlet such as animal feed at a much-reduced producer price.
Relaxing the dockage limits for the 2023-2024 crop year will allow handlers to acquire more lots of raisins that would otherwise fail specified tolerances for substandard raisins and maturity. Thus, fewer lots are expected to be returned to producers for reconditioning. Under the revised requirements, transportation costs for hauling raisins to and from the handler's premises, estimated at $24 per ton one way, for reconditioning and reinspection may be eliminated. Producers are also expected to save on reconditioning costs. Producer costs for reconditioning raisins falling below certain maturity levels (usually a “wash and dry” process) are estimated at $275-$300 per ton. Producers may also save on reinspection costs at $15.50 per ton because more of their raisins will meet the relaxed incoming substandard and maturity requirements upon first inspection. In addition, producers whose lots of raisins fall into the extended dockage limits for substandard raisins will not have to incur $60 per ton in costs for “dry reconditioning” expenses.
Relaxing the dockage limits may cause handlers to incur some additional costs; however, such costs are minimal when considering the alternative, that is to receive significantly less product for the 2023-2024 crop year and to not meet market demand. Thus, the benefits of this rule outweigh such costs. While the incoming quality requirements are relaxed, the outgoing quality requirements under the Order will remain unchanged. The burden of removing substandard raisins or raisins falling below certain levels of maturity will be shifted from producers to handlers. However, although handlers will have to undertake the additional burden of cleaning up the fruit, handlers are better prepared than producers to manage the lower quality raisins efficiently and economically because they already have the processing equipment designed to remove the undesirable fruit. Moreover, without this rule handlers would likely have less fruit available to meet market needs.
The Committee considered several alternatives to the recommended action. An Administrative Subcommittee (Subcommittee) convened on October 3, 2023, to discuss the current crop situation and to submit remediation recommendations to the full Committee. At the meeting, the Subcommittee discussed increasing the allowable amount of substandard fruit from 17.0 to 25.0 percent for Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, and Other Seedless-Sulfured. However,
The Committee's meetings are widely publicized throughout the production area. The raisin industry and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. The Subcommittee meeting on October 3, 2023, and subsequent full Committee meeting on October 5, 2023, were each open to the public where any interested parties was able to express views on this issue. In addition, interested persons are invited to submit comments on this interim rule, including the regulatory and information collection impacts of this action on small businesses.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.
This interim rule would not impose any additional reporting or recordkeeping requirements on either small or large California raisin handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this interim rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, USDA has determined that this interim rule is consistent with and will effectuate the purposes of the Act.
A 60-day comment period is provided to allow interested persons to respond to this interim rule. All written comments timely received will be considered before a final determination is made on this interim rule.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 989 as follows:
7 U.S.C. 601-674.
(a) General. Subject to prior agreement between handler and tenderer, Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, and Other Seedless-Sulfured raisins containing from 5.1 through 17.0 percent, by weight, of substandard raisins may be acquired by a handler under a weight dockage system: Provided, That, for the 2023-2024 crop year, such raisins containing from 5.1 through 21.0 percent, by weight, of substandard raisins may be acquired by a handler under a weight dockage system. A handler may also, subject to prior agreement, acquire as standard raisins any lot of Muscat (including other raisins with seeds), Sultana, and Zante Currant raisins containing from 12.1 through 20.0 percent, by weight, of substandard raisins under a weight dockage system: Provided, That, for the 2023-2024 crop year, a handler may acquire such raisins containing from 12.1 through 25.0 percent, by weight, of substandard raisins under a weight dockage system. The creditable weight of each lot of raisins acquired under the substandard dockage system shall be obtained by multiplying the net weight of the lot of raisins by the applicable dockage factor from the appropriate dockage table prescribed in paragraph (b) or (c) of this section.
(b) * * *
Percentages in excess of the last percentage shown in the table shall be expressed in the same increments as the foregoing, and the dockage factor for each such increment shall be .001 less than the dockage factor for the preceding increment. Deliveries in excess of 17.0 percent would be off-grade; therefore, the dockage factor does not apply: Provided, That, for the 2023-2024 crop year, deliveries in excess of 21.0 percent would be off-grade; therefore, the dockage factor does not apply.
(c) * * *
Percentages in excess of the last percentage shown in the table shall be expressed in the same increments as the foregoing, and the dockage factor for each increment shall be .001 less than the dockage factor for the preceding increment. Deliveries in excess of 20.0 percent would be off grade; therefore, the dockage factor does not apply. Provided, That, for the 2023-2024 crop year, deliveries in excess of 25.0 percent would be off-grade; therefore, the dockage factor does not apply.
(a) General. Subject to prior agreement between handler and tenderer, Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, and Other Seedless-Sulfured raisins containing from 35.0 percent through 49.9 percent, by weight, of well-matured or reasonably well-matured raisins may be acquired by a handler under a weight dockage system. Provided, That, for the 2023-2024 crop year, such raisins containing from 30.0 through 49.9 percent, by weight, of well-matured or reasonably well-matured raisins may be acquired by a handler under a weight dockage system. The creditable weight of each lot of raisins acquired under the maturity dockage system shall be obtained by multiplying the net weight of the lot of raisins by the applicable dockage factor from the dockage table prescribed in paragraphs (b), (c), (d), and (e) of this section.
(e) For the 2023-2024 crop year, maturity dockage table applicable to lots of Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, Other Seedless, and Other Seedless-Sulfured raisins which contain 30.0 percent through 34.9 percent well-matured or reasonably well-matured raisins:
Percentages less than the last percentage shown in the table shall be expressed in the same increments as the foregoing, and the dockage factor for each such increment shall be .002 less than the dockage factor for the preceding increment.
Nuclear Regulatory Commission.
Final guide; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Revision 2 to Regulatory Guide (RG), 1.61, “Damping Values for Seismic Design of Nuclear Power Plants.” This RG provides guidance on damping values that the NRC staff finds acceptable for use in the seismic response analysis of seismic Category I nuclear power plant structures, systems, and components. The specified damping values are intended for elastic dynamic seismic analysis where energy dissipation is accounted for by viscous damping.
Revision 2 to RG 1.61 is available on December 11, 2023.
Please refer to Docket ID NRC-2023-0097 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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Revision 2 to RG 1.61 and the regulatory analysis may be found in ADAMS under Accession Nos. ML23284A272 and ML22273A041, respectively.
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
Marcos Rolon Acevedo, Office of Nuclear Regulatory Research, telephone: 301-415-2208; email:
The NRC is issuing a revision in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.
Revision 2 to RG 1.61 was issued with a temporary identification of Draft Regulatory Guide, DG-1364. RG 1.61, Revision 1, specifies the damping values that the NRC staff considers acceptable for complying with the agency's regulations for seismic analysis. This revision of the RG (Revision 2) provides
The NRC published a notice of the availability of DG-1364 in the
As noted in the
This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
Issuance of RG 1.61 would not constitute backfitting as that term is defined in section 50.109 of title 10 of the
A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at
For the Nuclear Regulatory Commission.
Farm Credit Administration.
Final rule.
The Farm Credit Administration (FCA, we, or our) rescinds and revises its regulations to reflect developments in cyber risk and continuously evolving business practices. We rename the regulations “Cyber Risk Management.” The final rule requires each Farm Credit System (System or FCS) institution to implement a comprehensive, written cyber risk management program consistent with the size, risk profile, and complexity of the institution's operations.
This regulation is effective January 1, 2025.
or
The objectives of this final rule are to:
• Delete references to the requirements of “Electronic Signatures in Global and National Commerce Act” (E-SIGN) (Pub. L. 106-229), which became effective on October 1, 2000. E-SIGN is a statutory requirement that governs electronic transactions relating to the conduct of electronic business, consumer, or commercial affairs. E-SIGN continues to apply to System institutions as statutory requirements.
• Revise part 609 to codify our existing expectations, as well as ensure the relevance and adequacy of risk management practices, corporate governance, and internal control systems at System institutions conducting business in an electronic environment.
• Require each System institution to develop and implement a comprehensive, written cyber risk management program consistent with the size, risk profile, and complexity of the institution's operations.
The regulations at 12 CFR part 609 were enacted in 2002 and repeated the statutory requirements of E-SIGN. Our existing information-technology (IT)-related regulations primarily focus on E-commerce terminology and the concept of conducting business in an E-commerce environment. Since then, there have been significant changes and advancements in IT and the System's use of technology to conduct business.
We are responsible, as the System's regulator, to ensure the System's use of IT is consistent with safe and sound operations and complies with the law.
We amend the current E-commerce regulations at part 609 to revise the rules for a broader cyber risk focus and to codify our existing expectations on risk management practices, corporate governance, and internal control systems for conducting business in an electronic environment. The final regulations set forth core principles that serve as the foundation for creating a comprehensive cyber risk management program and framework.
Key definitions include:
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A System institution's policies, procedures, and internal controls that manage cyber risk must incorporate information security and cyber security concepts and sound business practices.
These cyber risk management regulations allow System institutions to innovate. We recognize that innovation in the System may create different opportunities, challenges, and risks for different institutions. Accordingly, we considered the needs and constraints of all institutions, regardless of size, risk profile, or complexity. We understand cyber risk management programs will vary and there is no one-size-fits-all approach; however, these cyber risk management regulations provide the flexibility for System institutions to innovate based on the institution's unique needs and operations.
System institutions can mitigate challenges and risks through good governance and effective risk management. Strong governance principles and appropriate risk management practices, implemented through sound internal controls, can safeguard against a variety of risks, including those stemming from adopting new technology. However, an institution should never sacrifice safety and soundness for innovation.
These cyber risk management regulations encourage System institutions to implement and develop effective and sound cyber risk management program solutions. We continually communicate these expectations to System institutions in our role as examiner of the System. This rule also considers the role our examinations play in ensuring safe and sound operations of the System.
We received 26 comment letters, all of which came from System institutions or persons affiliated with the System, except one that came from the Independent Community Bankers of America (ICBA). Of the comment letters received, one came from the Farm Credit Council (Council), acting on behalf of its membership. Each of the four Farm Credit banks submitted a letter, as did the Federal Agricultural Mortgage Corporation (Farmer Mac). Many comment letters from System associations expressed support for the Council's letter, with several raising specific issues. The following is a description of the issues raised and our responses.
Most of the commenters stated that the proposed rule does not align with a principles-based approach to rule-making. As discussed below, we disagree. As an initial matter, we considered that System institutions vary dramatically in terms of size, risk profile, and complexity of business model. Accordingly, during the rule-making process, we focus on the right blend of principles and specific requirements to achieve a safe and sound System.
Principles-based regulations set forth broad objectives and goals for which System institutions should strive. Thus, this rule does not address every circumstance. The rule attempts to balance an institution's need to develop a cyber risk management program against our mission to promote and protect the safety and soundness of each institution and the System, as a whole. The rule provides flexibility, where appropriate, and establishes minimum standards, where needed. Thus, the rule provides System institutions with parameters and our expectations for the System to establish, among other things, internal controls consistent with a principles-based rule. The regulation provides flexibility for both the FCA and the System to adapt to market developments and evolving technology. We believe we have achieved the correct regulatory balance.
While commenting on this principles-based approach, one institution asked us to minimize examination inconsistency by recognizing and clarifying the appropriate role of management and the board of directors in selecting the appropriate cyber security approach from among the many that may satisfy the overarching principles of the rule. An institution has the flexibility to determine its risk profile and identify appropriate cyber risk management practices. The institution should document its analysis to provide examiners with an opportunity to assess its choices.
This approach acknowledges that there is more than one way to comply with the regulation. We will take a risk-based approach, and not a one-size-fits-all approach, in our examination of each System institution.
Several institutions commented that portions of the proposed regulation are unclear or unfeasible. In response, we reviewed the proposed regulation in its entirety to ensure it is written in accordance with plain language principles and to clarify any potentially confusing language.
The rule requires System institutions to develop a program consistent with the size, risk profile, and complexity of the institution's operations. This provides flexibility, consistent with a principles-based approach, to allow each System institution to customize its cyber security program for its particular risk environment. However, to address commenters' concerns, we are adding the term “risk profile,” as appropriate throughout the preamble and regulation, to clarify that an institution's program must be based on size, complexity, and risk. Adding the term “risk profile” will allow each System institution to customize its cyber risk management program for its unique risk environment.
One commenter stated that perfect security is neither possible nor desirable, and there is often a fundamental tradeoff between security and convenience (or user experience). The commenter further stated that while clients appropriately value the security of their information, they are often willing to accept some security risk in exchange for a better user experience.
Although convenience and user experience could compromise security, we believe a risk assessment, including a determination to mitigate or accept certain risks, is critical to an institution's cyber risk management program. Thus, an institution must document why it accepts, transfers, or mitigates the risk. The board has a fiduciary responsibility to ensure a safe and sound operating environment. If the board chooses to accept a risk for convenience or customer experience, the board's approval must be documented.
Several commenters suggested the proposed regulation should leverage standard frameworks based on industry standards (
We agree. As this is a principles-based regulation, in part, linking to standard frameworks will encourage innovation, implementation, and compliance. Referencing industry standards promotes conformity with the cyber risk management rule as institutions innovate and apply rapidly evolving technology and attendant controls.
We also direct System institutions to the June 27, 2017, Informational Memorandum (IM) on “Reporting Security Incidents and Business Continuity Events to FCA.” This guidance will assist System institutions to identify and define an incident under 12 CFR 609.930(c)(3)(i) and help determine reporting requirements. The Office of Examination periodically releases informational memoranda to update the System on expectations. We anticipate the continued issuance of such guidance documents in the future, despite the publication of this rule.
Several commenters requested that we define key terms, such as “effective,” “ensure,” or “appropriate.” However, as this is a principles-based rule, we will not define such terms here.
FCA and the institutions it regulates must interpret these terms considering the institution's unique circumstances. What may be “effective” or “appropriate” at one institution or at one time may not be “effective” or “appropriate” at another institution with a different risk profile, where there is a different size or complexity, or at a different time. FCA's decision to not define the terms allows an institution to determine what is effective or appropriate at its institution. During the supervisory and examination process, we will apply the regulatory requirements based on the institution's current circumstances, which is consistent with a principles-based rule. Moreover, these terms currently are used without definition throughout our regulations, and we do not believe it appropriate to define the terms in this regulation.
FCS institutions may want to refer to the NIST Computer Security Resource Center's Glossary
The ICBA recommends that we harmonize the proposed regulation and guidance with that of the other federal financial regulatory agencies to ensure System institutions operate in a safe and sound manner. In drafting this regulation, we reviewed the cyber security regulations of the federal financial regulatory agencies and included some of the elements of those regulations. We believe the review process was comprehensive and have been unable to identify any other provisions we should include. Nevertheless, we refer System institutions to the FFIEC IT Handbook
Two System institutions stated that the proposed rule should be pulled back, reworked, and reproposed in the future to allow for additional comments. We disagree. FCA has not updated our technology regulations in years. We believe this updated regulation will help institutions strengthen their cyber security and cyber risk management practices. We provide, through this principles-based rule, flexibility for institutions to develop cyber risk management programs based on institution size, risk profile, and complexity.
One commenter suggested the proposed rule is excessively burdensome and inconsistent with modern industry accepted and dynamic cyber security program standards that System institutions already implemented as part of their cyber security programs. The commenter further stated that the proposed rule would adversely impact the ability and capability of System institutions to establish effective and relevant cyber security programs. Additionally, the commenter said the language was prescriptive and vague. The commenter stated that we should defer to industry standards and not attempt to create competing, duplicative, and non-conforming regulatory requirements.
We agree, in part, and FCA intends through this rulemaking to leverage standard frameworks based on industry standards, such as FFIEC and NIST, as discussed herein. However, consistent with principles-based rulemaking, we reiterate that an institution must develop a program consistent with the size, risk profile, and complexity of the institution's operations. An institution should customize and document the cyber risk management program for its risk environment.
Several commenters asked how FCA examiners would examine cyber risk management programs at System institutions of different sizes and complexities. Commenters were also concerned the rule does not have specific definitions and thresholds that may lead to inconsistencies in examinations.
Examiners will review cyber risk management programs much like other internal controls programs. There is no one-size-fits-all approach. We know cyber risk management plans will differ based on an institution's size, complexity, and risk profile. The rule outlines items institutions must consider, such as a written cyber risk management program, documented incident response plan, and documented risk assessments, which examiners may review as part of the examination process. We will provide consistency and clarity in our supervision and regulation of the System as it pertains to, among other things, cyber risk management.
Several commenters recommended that we allow each System institution to define the term “vulnerability” in proposed § 609.905 based on a modern framework and remove the requirement that “any” vulnerability must be remediated. They asserted that System institutions should be allowed to rank and prioritize vulnerabilities based on their defined risk-based program, including allowing known unmitigated vulnerabilities to be assessed and addressed based on that risk assessment. There was also a comment that human capital presents the greatest risk or vulnerability to an institution.
We do not agree that the regulation should include the suggested terminology “based on a modern framework.” We believe the commenter's suggested language of “based on a modern framework” is vague and could be misinterpreted to allow a System institution to use any modern framework, which could lead to further inconsistencies among System institutions. However, we do agree that an institution should rank and prioritize vulnerabilities based on its cyber risk management program and cyber risk assessment. The vulnerability management program should be commensurate with the size, risk profile, and complexity of the institution and based on sound industry standards and practices.
A System institution board should identify and document the institution's appetite for risk. Then, the board, with management, should assess the institution's vulnerabilities. Although an institution cannot mitigate every vulnerability, each System institution's board must assess the risk of a vulnerability, decide whether the vulnerability exposes the institution to any undue risk, and document its analysis and conclusions. In some cases, a System institution may assess and identify its risk appetite and accept the risk, which should be documented to allow FCA to examine for safety and soundness, as well as compliance with law.
Mitigating vulnerabilities involves taking steps to implement internal controls that reduce risk. Remediation is the act of removing or eradicating a vulnerability from an IT system. Mitigation, on the other hand, is creating strategies to minimize the potential threat of a vulnerability when it cannot be eliminated immediately. Some vulnerabilities are more difficult to remediate and may require some time to address.
An institution could refer to the FFIEC IT Handbook or NIST Cybersecurity Framework for guidance on how to identify, document, and address a vulnerability within its risk profile.
Several commenters disagreed with the second sentence in proposed § 609.930(a), which provided as follows: “The program must ensure the security and confidentiality of current, former, and potential customer and employee information, protect against reasonably anticipated cyber threats or hazards to the security or integrity of such information, and protect against unauthorized access to or use of such information.” The commenters were concerned that the phrase “must ensure” created an unattainable standard as to the security and confidentiality of information, as any information loss, no matter how insignificant, would appear to violate the rule as drafted. The commenters suggested that we revise this language so the program “must be designed to protect” or “manage the risk” of protecting the security and confidentiality of information.
We strongly believe there must be controls in place to protect the security and confidentiality of information. Thus, we revise the second sentence of Section 609.930(a) as follows: “The program must ensure controls exist to protect the security and confidentiality of current, former, and potential customer and employee information, protect against reasonably anticipated cyber threats or hazards to the security or integrity of such information, and protect against unauthorized access to or use of such information.” The revision to the second sentence of Section 609.930(a) addresses the commenters' concerns and will ensure that an institution has strong controls in place to protect the security and confidentiality of information.
We received numerous comments suggesting that we clarify expectations related to “size and complexity” in proposed § 609.930(a). There was a concern that a lack of guidance on “size and complexity” will lead to inconsistent expectations of examiners and place additional regulatory burden on smaller institutions. It was also suggested that we acknowledge the role of IT service providers to avoid examination inconsistencies and to reference “a modern risk management framework.” Section 609.930(a) requires, in part, each institution to implement a comprehensive, written cyber risk management program consistent with the size, risk profile, and complexity of the institution's operations.
Consistent with our intent for a principles-based rulemaking, we do not define “size and complexity.” However, to provide clarity, we include “risk profile” and change the phrase to “size, risk profile, and complexity.” We do not believe it appropriate to reference “a modern risk management framework.”
An institution must assess its risk profile. The regulation requires a cyber risk management program to be consistent with size, risk profile, and complexity of an institution. A smaller institution may not be required to assess as many risks as or the same types of risks as a larger institution. However, depending on an institution's complexity, size, and risk profile, it is possible for a smaller institution to have a similar cyber risk management plan range as compared to a larger institution.
Each institution should document its risk-based approach to establishing a cyber risk management plan and scope.
As noted above, to add clarity in response to the size and complexity concerns, we revise the first sentence in this section to insert the phrase “risk profile” to help align the regulation with the requirement of providing strong controls commensurate with an institution's size and complexity.
One commenter stated that although the heading of proposed § 609.930(b) refers to the role of management, the text of this section does not appear to contemplate a defined role for management. The commenter further stated that although management has a significant role in managing cyber risk, the rule assigns many responsibilities to an institution's board of directors, with management providing the services.
We believe that a board of directors must provide appropriate oversight of management to develop, implement, and maintain a cyber risk management program consistent with the board's fiduciary duties and oversight obligations. This section provides that the board must decide who will do what without FCA specifying or telling them what to do step-by-step. We do not want to create a prescriptive rule.
For clarity, we modified the language of this section to remove “and management” from the heading. This should clarify that the institution board has oversight responsibility but may delegate day-to-day tasks to management and other employees, as appropriate.
Proposed § 609.930(c)(2) requires institutions to “perform timely remediation.” Several commenters stated the regulation does not define the term “timely,” which could lead to inconsistencies and misaligned expectations between examiners and institutions. One commenter recommended we define “timely” by directing System institutions to leverage modern frameworks based on industry standards, customized for its institution's risk environment, and aligned with its documented risk-based approach.
This is a principles-based rule. Institutions have an opportunity to be innovative and develop their own metrics and identify material matters relevant and specific to their institutions. Metrics will vary from System institution to System institution depending on risks, threats, and cyber risk management program.
As to defining “timely,” we understand the commenters' concerns. However, remediation evaluation should begin immediately after the vulnerability has been identified. The word “timely” is intended to provide institutions some flexibility. A minor vulnerability, depending on the circumstances presented, may not need to be addressed immediately, but a
Thus, we finalize this section as proposed.
One institution stated that “incident response planning” as required by proposed § 609.930(c)(3) varies greatly by institution and by incident. The technologies used and available expertise also vary greatly. The commenter stated that broad-based incident responses provide the flexibility needed to adapt to constantly changing technology and threats to technology. The commenter added that requiring specific incident plan responses to individual potential threats is both time consuming and ultimately not satisfactory, especially for new threats that may not be envisioned when the plan is created. The commenter recommended that the final rule be revised to allow institutions more flexibility in defining incident response planning.
We believe that proposed § 609.930(c)(3) included the necessary components and flexibility for an incident response plan. An institution should view an incident response plan as the steps that should be taken when a security incident occurs. Procedures do not need to be specific to any one type of event and can be written to ensure the right people are involved in the incident response and the process remains consistent. Further, we believe incident response plans will likely need to change over time in response to new threats. Thus, we revise this section to include language that the documented cyber risk management program, risk assessments, and incident response plans should be reviewed and updated periodically, but at least annually, to address new threats, concerns, and evolving technology. This is consistent with existing FFIEC, NIST, and FCA guidance.
Proposed §§ 609.930(c)(3)(i) through (iii) require each institution to document its procedures on forensics, containment, and business resumption. Several commenters stated that the requirements in proposed §§ 609.930(c)(3)(i) through (iii) are not feasible because of the lengthy and numerous ways System institutions identify and contain security events, and later, resume business. The commenters recommended that we revise this section to focus less on specific procedures, and more on an adaptable and scalable framework to assess the nature and scope of an incident, contain the incident, and how to safely resume business activities. Some commenters stated that an institution should act in accordance with state and federal law.
We disagree with the commenters' statements. A System institution must document its procedures for, among other things, ensuring each employee follows the same protocol for forensics, containment, and business resumption. Also, documentation will assist with staff continuity within the institution and can serve as a training tool for institution employees. Furthermore, FCA examiners must be able to examine for compliance. Compliance with only state and federal laws is not appropriate because it does not assess an institution's size, complexity, and risk profile.
We will finalize this section as proposed.
One commenter recommended that we modify proposed § 609.930(c)(3)(iv) to permit each institution's board of directors to determine when it should be notified by management of a cyber incident, consistent with the board notification protocols in the institution's approved incident response plan. The commenter suggested revising the proposal to include an incident escalation matrix that would provide the board and management with a clear and specific action plan in the event of a cyber incident and identify when an incident should be brought to the attention of the board and/or other stakeholders (
Proposed § 609.930(c)(3)(iv) requires board notice when there is a cyber incident involving unauthorized access to or use of sensitive or confidential customer or employee information.
We believe this section already includes an escalation concept, in that it applies only to sensitive or confidential information. The section does not apply to all information. We believe that when there has been a cyber incident involving sensitive or confidential information, the board must be notified. The board should not be caught off guard when it comes to hearing about cyber incidents.
After further consideration, we now also include a clause that requires notification when there is “unauthorized access to financial institution information, including proprietary information.” Financial institution information must also be protected. An institution must guard its institution's reputation in every instance.
Proposed § 609.930(c)(3)(v) requires an institution to notify FCA as soon as possible, or no later than 36 hours after an institution determines a cyber security incident occurs. A few commenters stated that incidents can occur in an environment without discovery for longer than 36 hours. Additionally, one commenter stated that 36 hours will not allow an institution sufficient time to review evidence and determine whether a reportable incident has occurred. The commenter recommended extending the deadline to 72 hours. Another commenter suggested extending the reporting requirement to four business days after the date of a materiality determination, rather than the date of discovery.
The proposed rule requires “notifying FCA as soon as possible or no later than 36 hours after the institution determines that an incident has occurred.” We believe it reasonable that an institution be required to notify its regulator as soon as possible and no later than 36 hours after it identifies such an incident. We do not believe that a materiality standard should be introduced. Notification does not require a detailed report with findings and recommendations. Notification provides us with timely information on a cyber security incident. This is consistent with the other federal financial regulatory agencies' requirement promulgated in a joint regulation that a banking organization notify its primary federal regulator of any significant security incident as soon as possible and no later than 36 hours after it has been determined that a cyber incident has occurred.
Some commenters recommended proposed § 609.930(c)(3)(vi) be amended and revised to provide notice to customers, employees, and website visitors in accordance with state and federal laws. Another commenter was concerned that there was no definition of “customer,” especially as it relates to potential customers exploring available loan products online. Another
This section requires institutions to notify former, current, or potential customers and employees, and known visitors to an institution's website, of an incident, when warranted, and in accordance with state and federal laws. For example, notification would be required when sensitive or confidential information has been compromised. The section does not define “known visitor” or “potential customer.” Overall, the commenters are concerned System institutions will interpret these terms differently.
We do not believe we should change this section as the requirements are consistent with a principles-based rule. Each System institution will determine and document what these terms mean. Providing notice, when warranted, provides flexibility to institutions. Nevertheless, all confidential information related to “former, current, or potential customers and employees and known visitors to a website” must be protected. System institutions may not allow others to inappropriately view or access this information without proper authorization. Our regulations at part 618 support this conclusion.
Proposed § 609.930(c)(4) requires institutions to “describe the plan to train employees, vendors, contractors, and the institution board to implement the institution's cyber risk program.” Several commenters argued that the requirement to train contractors and vendors is impractical and that many contractors and vendors will simply refuse to submit to institution-specific training based on their own business requirements.
As a principles-based rule, this section requires an institution to describe its plan to train employees, vendors, and contractors. However, we do not prescribe a particular plan. If an institution does not provide training, the institution must describe its plan and state why and what actions it is taking to mitigate the risk of not having institution-provided training. We require such documentation to enable FCA examiners to review the training plan.
As to vendors, System institutions should be able to confirm, either contractually or otherwise, that vendors have some acceptable level of training, as well as understand sound cyber risk management practices and protocols. We acknowledge that it is unrealistic for an institution to train all contractors and vendors.
We finalize this section as proposed.
Several institutions commented generally that they did not own or manage any IT systems that they currently use. They stated that these IT systems may be owned by third-party vendors, technology service providers, or by another System institution, such as a Farm Credit Bank that provides services like a third-party service provider.
As to specific comments, one commenter asked that the term “vendor” be clarified. Another commenter stated that proposed § 609.930(c)(5)(i) is impractical as it requires an institution to require its vendors, by contract, to implement appropriate due diligence in selecting vendors. The commenter provided an example of its inability to comply with proposed § 609.930(c)(5)(i) when a vendor may refuse to negotiate its standard terms and conditions, due to its size and bargaining position.
We also received a comment on proposed § 609.930(c)(5)(iii) (now § 609.930(c)(5)(iv)) concerning institutions monitoring and reviewing vendor audits or summaries of test results. The commenter stated that some vendors will not provide these audits or test results. The commenter stated that requiring institutions to negotiate the right to an audit with every vendor will greatly hinder an institution's choice of vendors. Moreover, for many vendors, this is not practical. The commenter added that it is not necessary for an institution to review audits or summaries of test results for a vendor contracted to provide catering or lawn maintenance services, or other non-IT contracts. Another commenter suggested a risk-based approach.
A “vendor” is a third party and includes third-party service providers or a System institution providing services to another System institution. A System institution should assess the risk of using a vendor,
Conducting a risk assessment is particularly important when a vendor handles a critical business function, accesses sensitive customer data, and/or interacts with customers. An institution must have controls to ensure that the vendor, even if it is another System institution, has appropriate security in place for IT systems. Whether a vendor is a System service provider or external service provider, an institution should never put its trust in any IT service provider without doing its own due diligence.
An institution has a responsibility to its customers and shareholders. Accordingly, each association must be aware of the risks, even if it outsources its IT services. We will hold the institution accountable for ensuring it has appropriate controls to ensure the continued safety and soundness of the institution. An institution must know its own complexity, including the role of technology service providers. Although services may be outsourced, an institution cannot delegate or shift the requirement for due diligence or accountability from the institution's board and management to service providers. Institutions are required to ensure service providers/vendors are providing adequate and effective services.
Nevertheless, we agree that negotiating the right to audit need not apply to every vendor. Accordingly, to address these concerns we added a new paragraph (iii), requiring institutions to conduct a vendor risk assessment on all vendors.
An institution will be able to assess the level of detail needed for their vendor risk assessment. For example, a vendor risk assessment of a catering vendor may need a statement indicating very little risk because of the nature of the service and type of information provided to the vendor. A vendor risk assessment for IT services would require an institution evaluate cyber risk as part of its vendor management process. A vendor risk assessment helps an institution understand the risks that exist when it uses vendors' products or services. Conducting a vendor risk assessment is particularly important when a vendor handles a critical business function, accesses sensitive customer data, or interacts with customers.
An institution must document the vendor risk assessment and may address whether a large vendor already has appropriate security measures. This way, an institution can determine if it
Just because a smaller or less complex institution may rely on its funding bank for technology services does not mean that institution would not be required to have a cyber risk management program. If a cyber event occurred at a small or less complex institution that relies on the bank for services, we would still expect the institution to work with the bank to follow a cyber security framework (
Additionally, to be more consistent with a principles-based approach, we revise proposed § 609.930(c)(4)(iii) (now § 609.930(c)(4)(iv)) to identify what an institution may monitor, rather than prescribing what an institution must monitor. This would provide an option for the institution to receive some type of report, audit, or summary. The institution must exercise appropriate due diligence in selecting any vendor. Any such assessment must include appropriate documentation for examiner review.
A few commenters stated that proposed § 609.930(c)(6)(i), which requires an institution to determine the frequency and nature of internal controls testing, provides no substantive guidance on the frequency and nature of internal controls testing. No recommendation was provided.
As this is a principles-based rule, we provide institutions the autonomy to decide the frequency and nature of their internal control tests. Based on the risk assessment, each institution should decide the frequency and nature of internal control tests. If we were to mandate every element, this rule would no longer be principles-based, as appropriate, but a prescriptive rule. The type and amount of risk an institution faces should determine the nature and frequency of testing. An institution may want to consult the FFIEC IT Handbook, NIST, and FCA guidance documents.
We finalize this section as proposed.
A commenter stated that proposed § 609.930(c)(6)(ii) requires an independent party to perform testing but does not address the size and complexity of the institutions when performing testing. The commenter asserted that, to minimize examination inconsistencies, the rule should address the unique service provider relationship and structure between some System entities.
We disagree. The regulation provides that an independent party can include institution staff who are independent of the cyber risk management program. This will allow an institution, regardless of size, risk profile, or complexity, to conduct its own testing and due diligence, which the institution should document. Institution documentation will promote consistency in the examination process.
Several commenters stated that there is no indication how to measure the term “material.” One commenter added that “reasonable assurances” seem to refer to an auditor's degree of satisfaction that the evidence obtained during the audit supports the assertions in the financial statements. The commenter added “reasonable assurances” do not include “remediation” in the definition, as a situation with material deficiencies (situations requiring remediation) would not allow an auditor to arrive at a level of reasonable assurances. The commenter suggested separating this section into a testing element and a remediation element. The commenter stated that a testing element related to “reasonable assurances” would assess the cyber capabilities of the organization to detect and prevent cyber incidents of a material nature, while a remediation element related to incident responses would assess the effectiveness of timely remediation of cyber incidents that have a material impact on the entity.
Proposed § 609.930(c)(6)(iii) indicates that “internal systems and controls must provide reasonable assurances that System institutions will prevent, detect, and remediate material deficiencies on a timely basis.”
“Material” in this context means to exclude small or
Internal controls are intended to prevent errors and irregularities, identify problems, and ensure corrective action. Internal controls can be expected to provide only reasonable, not absolute, assurances to an institution's management and board.
We continue to believe internal controls must provide reasonable assurances to prevent, detect, and remediate material deficiencies. We do not believe any change to the proposal is necessary. The regulation, as proposed, is clear on the need for adequate internal controls.
With respect to proposed § 609.930(d), commenters were concerned that this section does not provide expectations on the privacy framework, or other legal or compliance requirements. This section requires, in part, that an institution “consider privacy and other legal compliance issues.”
We have decided not to specify a uniform privacy framework. Privacy frameworks can vary from state-to-state and from institution-to-institution. System institutions may consult the privacy framework established by NIST at
We finalize this section as proposed.
As proposed, § 609.930(e) requires an institution to “report quarterly to its board or an appropriate committee.” One commenter suggested that quarterly reporting may not be the correct frequency to report to an institution's Board.
We concur with the suggestion that quarterly reporting may not be the correct reporting frequency. We revise this section to provide, “[a]t a minimum, each institution must report quarterly to its board or an appropriate committee of the board.” This will ensure that there is at least quarterly reporting to the board. Depending on the risk or information that must be communicated to the board, the frequency of reporting may need to increase, and conversely, a quarterly report to the board may be brief, as appropriate and in accordance with the institution's situation. The institution should have appropriate documentation to support the frequency of board reporting.
Section 609.930(e), as proposed, requires the report to the board to “contain material matters and metrics related to the institution's cyber risk management program, including specific risks and threats.” One commenter was concerned that the section does not provide a framework or expectation for the metrics presented to the board, or consider institutions
Upon further review, we delete the phrase “and metrics” from the final rule, but we decline to reference modern frameworks based on industry standards. Removing “metrics” should alleviate confusion from the proposed language. We continue to believe management should timely report on cyber risk management practices to the board or a committee of the board.
One commenter stated that requiring an institution, per proposed § 609.935(b), to detail the technology budget in the technology plan could lead to unnecessary duplication. Some institutions present their technology budget to their boards with the overall operating expense budget. Another commenter objected to the requirement on how and when the information is to be presented.
We are not revising the proposed language. We believe there is little to no burden for institutions to include the technology budgets in the overall operating expense budgets, even if duplicative to other reports the boards might receive. Having a separate technology budget could benefit the board of directors by identifying the expenses incurred within the technology area. A separate technology budget is especially important as money spent in the technology area helps keep systems secure and adds more transparency to the technology area. Business planning is very important as institutions identify specific areas that should be reviewed, assessed, and evaluated. Board and management can use the technology budget to initiate discussions on spending for cyber risk management.
One commenter stated proposed § 609.935(c) is unclear. Proposed § 609.935(c) requires institutions to identify and assess the business risk of proposed technology changes and assess the adequacy of the institution's cyber risk program. The commenter did not know whether the requirement in proposed § 609.935(c) is intended to assess the adequacy of the program as a whole or solely assess the proposed technology changes. No recommendation was provided.
To alleviate any confusion, we modify this section, so that the plan “[i]dentifies and assesses the adequacy of the institution's entire cyber risk management program, including proposed technology changes.”
Several commenters stated that the proposed rule does not provide guidance on maintaining electronic records. Proposed § 609.945 requires “records stored electronically must be accurate, accessible, and reproducible for later reference.” The commenters stated that this section is silent on the scope and extent of the records and does not consider the institutions' data retention policies. The commenters recommended that we revise the rule to refer System institutions to modern frameworks based on industry standards, which would be customized for the institution's risk environment when defining the scope and extent of its electronic records retention program.
We are not revising the proposed language. This is the same language from the prior regulation on E-SIGN. This section will continue to hold institutions accountable for records retention in general. Institutions are still required to comply with E-SIGN, which is a statutory provision. Our existing E-SIGN regulations were educational and a reminder to institutions of their applicability.
As this is not a prescriptive rule, we have decided not to impose specific records retention schedules here. System institutions must continue to maintain their records to document their business decisions and to allow examiners to review such documents. Moreover, System institutions must have records retention programs that comply with their respective state and federal laws.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
Under the provisions of the Congressional Review Act (5 U.S.C. 801
Agriculture, Banks, Banking, Electronic commerce, Reporting and recordkeeping requirements, Rural areas.
Sec. 5.9 of the Farm Credit Act (12 U.S.C. 2243); 5 U.S.C. 301; Pub. L. 106-229 (114 Stat. 464).
Farm Credit System (System) institutions must engage in appropriate risk management practices to ensure safety and soundness of their operations. A System institution's board and management must maintain and document effective policies, procedures, and controls to mitigate cyber risks. This includes establishing an appropriate vulnerability management program to monitor cyber threats, mitigate any known vulnerabilities, and establish appropriate reporting mechanisms to the institution's board and the Farm Credit Administration (FCA). The vulnerability management programs should be commensurate with the size, risk profile, and complexity of the institution and based on sound industry standards and practices.
(a)
(b)
(1) Approve a written cyber risk program. The program must be consistent with industry standards to ensure the institution's safety and soundness and compliance with law and regulations;
(2) Oversee the development, implementation, and maintenance of the institution's cyber risk program; and
(3) Determine necessary expertise for executing the cyber risk management plan and, where practical, delegate day-to-day responsibilities to management and employees.
(c)
(1) Include an annual risk assessment of the internal and external factors likely to affect the institution. The risk assessment, at a minimum, must:
(i) Identify and assess internal and external factors that could result in unauthorized disclosure, misuse, alteration, or destruction of current, former, and potential customer and employee information or information systems; and
(ii) Assess the sufficiency of policies, procedures, internal controls, and other practices in place to mitigate risks.
(2) Identify systems and software vulnerabilities, prioritize the vulnerabilities and the affected systems based on risk, and perform timely remediation. The particular security measures an institution adopts will depend upon the size, risk profile, and complexity of the institution's operations and activities.
(3) Maintain an incident response plan that contains procedures the institution must implement when it suspects or detects unauthorized access to current, former, or potential customer, employee, or other sensitive or confidential information. An institution's incident response plan must be reviewed and updated periodically, but at least annually, to address new threats, concerns, and evolving technology. The incident response plan must contain procedures for:
(i) Assessing the nature and scope of an incident, and identifying what information systems and types of information have been accessed or misused;
(ii) Acting to contain the incident while preserving records and other evidence;
(iii) Resuming business activities during intrusion response;
(iv) Notifying the institution's board of directors when the institution learns of an incident involving unauthorized access to or use of sensitive or confidential customer, and/or employee information, or unauthorized access to financial institution information including proprietary information;
(v) Notifying FCA as soon as possible or no later than 36 hours after the institution determines that an incident has occurred; and
(vi) Notifying former, current, or potential customers and employees and known visitors to your website of an incident when warranted, and in accordance with state and federal laws.
(4) Describe the plan to train employees, vendors, contractors, and the institution board to implement the institution's cyber risk program.
(5) Include policies for vendor management and oversight. Each institution, at a minimum, must:
(i) Exercise appropriate due diligence in selecting vendors;
(ii) Negotiate contract provisions, when feasible, that facilitate effective risk management and oversight and specify the expectations and obligations of both parties;
(iii) Conduct a vendor risk assessment on all vendors; and
(iv) Monitor its IT and cyber risk management related vendors to ensure they have satisfied agreed upon expectations and deliverables. Monitoring may include reviewing audits, summaries of test results, or other equivalent evaluations of its vendors.
(6) Maintain robust internal controls by regularly testing the key controls, systems, and procedures of the cyber risk management program.
(i) The frequency and nature of such tests are to be determined by the institution's risk assessment.
(ii) Tests must be conducted or reviewed by independent third parties or staff independent of those who develop or maintain the cyber risk management program.
(iii) Internal systems and controls must provide reasonable assurances that System institutions will prevent, detect, and remediate material deficiencies on a timely basis.
(d)
(e)
The annually approved business plan required under subpart J of part 618 of this chapter, and § 652.60 of this chapter for System institutions and the Federal Agricultural Mortgage Corporation, respectively, must include a technology plan that, at a minimum:
(a) Describes the institution's intended technology goals, performance measures, and objectives;
(b) Details the technology budget;
(c) Identifies and assesses the adequacy of the institution's entire cyber risk management program, including proposed technology changes;
(d) Describes how the institution's technology and security support the current and planned business operations; and
(e) Reviews internal and external technology factors likely to affect the institution during the planning period.
Records stored electronically must be accurate, accessible, and reproducible for later reference.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Airbus Helicopters Deutschland GmbH (AHD) Model MBB-BK 117 D-3 helicopters. This AD was prompted by recalculations of the inspection intervals for certain parts. This AD requires revising the airworthiness limitations section (ALS) of the existing helicopter maintenance manual or instructions for continued airworthiness for your helicopter and the existing approved maintenance or inspection program for your helicopter, as applicable, to reduce the inspection interval of certain parts, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective January 16, 2024.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 16, 2024.
• For EASA material that is incorporated by reference in this final rule, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone (303) 342-1080; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0290, dated December 23, 2021; corrected December 23, 2021 (EASA AD 2021-0290), to correct an unsafe condition for all serial-numbered Airbus Helicopters Deutschland GmbH Model MBB-BK117 D-3 and D-3m helicopters.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Deutschland GmbH (AHD) Model MBB-BK 117 D-3 helicopters. The NPRM published in the
You may examine the EASA AD in the AD docket at
The FAA received no comments on the NPRM or on the determination of the costs.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.
EASA AD 2021-0290 requires replacing components before exceeding their life limits and accomplishing maintenance tasks within thresholds and intervals specified in the applicable ALS. Depending on the results of the maintenance tasks, EASA AD 2021-0290 requires accomplishing corrective action(s) or contacting AHD [Airbus Helicopters Deutschland GmbH] for approved instructions and accomplishing those instructions. EASA AD 2021-0290 also requires revising the Aircraft Maintenance Programme (AMP) by incorporating the limitations, tasks, and associated thresholds and intervals described in the specified ALS as applicable to helicopter model and configuration. Revising the AMP constitutes terminating action for the requirements to replace components before exceeding their life limits and accomplish maintenance tasks within thresholds and intervals specified in the applicable ALS as required by EASA AD 2021-0290.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA reviewed Airbus Helicopters Alert Service Bulletin ASB MBB-BK117 D-3-04A-001, Revision 0, dated December 22, 2021. This service information specifies checking the total accumulated flight hours since new for bolt part number (P/N) D671M7501201, bolt P/N D671M7501211, and mast bolt P/N D620M0501203, and accomplishing the airworthiness inspection within the reduced airworthiness inspection interval of 400 flight hours.
The FAA also reviewed Airbus MBB-BK117 D-3 Chapter 04, ALS, Revision 1, dated December 14, 2021. This service information specifies airworthiness limitations, tasks, and associated thresholds and intervals for various parts. Revision 1 of this service information specifies various updates for certain components.
EASA AD 2021-0290 applies to Model MBB-BK117 D-3m helicopters, whereas this AD does not because that model is not FAA type-certificated.
EASA AD 2021-0290 requires replacing certain components before exceeding applicable life limits, accomplishing certain maintenance tasks within thresholds and intervals as
The FAA estimates that this AD affects 29 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.
Revising the ALS of the existing helicopter maintenance manual or instructions for continued airworthiness for your helicopter and the existing approved maintenance or inspection program for your helicopter, as applicable, will take about 2 work-hours for an estimated cost of $170 per helicopter and $4,930 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective January 16, 2024.
None.
This AD applies to Airbus Helicopters Deutschland GmbH (AHD) Model MBB-BK 117 D-3 helicopters, certificated in any category.
Joint Aircraft Service Component (JASC) Code: 6710, Main Rotor Control.
This AD was prompted by recalculations of the inspection intervals for certain parts. The FAA is issuing this AD to reduce the inspection intervals for certain parts. The unsafe condition, if not addressed, could result in failure of a part and loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2021-0290, dated December 23, 2021; corrected December 23, 2021 (EASA AD 2021-0290).
(1) Where EASA AD 2021-0290 refers to its effective date, this AD requires using the effective date of this AD.
(2) This AD does not adopt the requirements specified in paragraphs (1), (2), (4), and (5) of EASA AD 2021-0290.
(3) Where paragraph (3) of EASA AD 2021-0290 specifies revising “the approved AMP” within 12 months after its effective date, this AD requires revising the airworthiness limitations section of your existing helicopter maintenance manual or instructions for continued airworthiness and your existing approved maintenance or inspection program, as applicable, within 30 days after the effective date of this AD.
(4) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2021-0290 is on or before the applicable “limitations” and “associated thresholds” as incorporated by the requirements of paragraph (3) of EASA AD 2021-0290, or within 30 days after the effective date of this AD, whichever occurs later.
(5) This AD does not adopt the “Remarks” section of EASA AD 2021-0290.
After the airworthiness limitations section of the existing helicopter maintenance manual or instructions for continued airworthiness; and the existing approved maintenance or inspection program, as applicable, has been revised as required by paragraph (g) of this AD, no alternative actions (
Special flight permits are prohibited.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (l) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Dan McCully, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone (303) 342-1080; email
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2021-0290, dated December 23, 2021; corrected December 23, 2021 (EASA AD 2021-0290).
(ii) [Reserved]
(3) For EASA AD 2021-0290, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all CFM International, S.A. (CFM) Model LEAP-1B21, LEAP-1B23, LEAP-1B25, LEAP-1B27, LEAP-1B28, LEAP-1B28B1, LEAP-1B28B2, LEAP-1B28B2C, LEAP-1B28B3, LEAP-1B28BBJ1, and LEAP-1B28BBJ2 (LEAP-1B) engines. This AD was prompted by a manufacturer investigation that revealed that certain high-pressure turbine (HPT) rotor stage 1 disks (HPT stage 1 disks) and a certain compressor rotor stages 6-10 spool were manufactured from material suspected to have reduced material properties due to iron inclusion. This AD requires replacing certain HPT stage 1 disks and a certain compressor rotor stages 6-10 spool. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective January 16, 2024.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 16, 2024.
• For service information identified in this final rule, contact CFM International, S.A., GE Aviation Fleet Support, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45215; phone: (877) 432-3272; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Mehdi Lamnyi, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7743; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to CFM International, S.A. (CFM) Model LEAP-1B21, LEAP-1B23, LEAP-1B25, LEAP-1B27, LEAP-1B28, LEAP-1B28B1, LEAP-1B28B2, LEAP-1B28B2C, LEAP-1B28B3, LEAP-1B28BBJ1, and LEAP-1B28BBJ2 engines. The NPRM published in the
In the NPRM, the FAA proposed to require replacement of certain HPT stage 1 disks and a certain compressor rotor stages 6-10 spool and also prohibit installation of an HPT stage 1 disk or compressor rotor stages 6-10 spool that has a part number and serial number identified in the service information onto any engine. The FAA is issuing this AD to address the unsafe condition on these products.
The FAA received comments from five commenters. Commenters included CFM International, United Air Lines (United), The Boeing Company (Boeing), Air Line Pilots Association, International (ALPA) and Lynx Air (Lynx). United, Boeing, and ALPA supported the NPRM without change. The following presents the comments received on the NPRM from CFM and Lynx and the FAA's response to each comment.
CFM advised that updated service information for replacement of the HPT Stage 1 disks and high-pressure compressor (HPC) Stage 6-10 spool has been published. This updated service information provides certain corrections, identifies Required by Compliance annotations, and updated cost information to adequately address this unsafe condition. CFM recommends the latest revision to be utilized in this final rule.
The FAA agrees with CFM's recommendation to utilize the updated
Lynx stated that the reference of HPC Stage 6-10 spool should be removed from the manufacturer service information; and additional removal instruction should be provided to address the unsafe condition as it pertains to this affected part. Lynx pointed out that issuing a single AD addressing HPC Stage 6-10 spools and HPT Stage 1 disks, could cause a certain level of uncertainty when maintaining maintenance records and incorporating these applicable engines into the operator's maintenance programs. Lynx suggested separate ADs should be issued to minimize the risk of confusion as it pertains to ensuring this unsafe condition has been addressed on these engines.
The FAA disagrees with the request to require the manufacturer to revise their service information and issue separate ADs for each affected part. Since the applicability, unsafe condition, required action, and corrective action, are consistent among the affected parts and the FAA has determined that the content of the service bulletin addresses the unsafe condition, there is no need for separate service bulletins or separate ADs.
The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for any changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed CFM Service Bulletin LEAP-1B-72-00-0392-01A-930A-D, Issue 002, dated September 5, 2023. This service information identifies the part numbers and serial numbers of HPT stage 1 disks and a compressor rotor stages 6-10 spool with potentially reduced material properties and specifies procedures for replacement of these parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA estimates that this AD affects 39 engines installed on airplanes of U.S. registry. These 39 engines require replacement of the HPT stage 1 disk. The FAA estimates that there are no engines installed on airplanes of U.S. registry that require replacement of the compressor rotor stages 6-10 spool.
The FAA estimates the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective January 16, 2024.
None.
This AD applies to CFM International, S.A. (CFM) Model LEAP-1B21, LEAP-1B23, LEAP-1B25, LEAP-1B27, LEAP-1B28, LEAP-1B28B1, LEAP-1B28B2, LEAP-1B28B2C, LEAP-1B28B3, LEAP-1B28BBJ1, and LEAP-1B28BBJ2 engines.
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section; 7250, Turbine Section.
This AD was prompted by a manufacturer investigation that revealed that certain high-pressure turbine (HPT) rotor stage 1 disks (HPT stage 1 disks) and a certain compressor rotor stages 6-10 spool were manufactured from material suspected to have reduced material properties due to iron inclusion. The FAA is issuing this AD to prevent fracture and subsequent uncontained failure of certain HPT stage 1 disks and a certain compressor rotor stages 6-10 spool. The unsafe condition, if not addressed, could result in uncontained debris release, damage to the engine, and damage to the aircraft.
Comply with this AD within the compliance times specified, unless already done.
(1) For engines with an installed HPT stage 1 disk having a part number (P/N) and serial number (S/N) identified in Compliance, paragraph 3.E., Tables 1 through 2, of CFM Service Bulletin (SB) LEAP-1B-72-00-0392-01A-930A-D, Issue 002, dated September 5, 2023 (CFM SB LEAP-1B-72-00-0392-01A-930A-D, Issue 2): At the next piece-part exposure of the HPT stage 1 disk, or before exceeding the applicable cycles since new (CSN) threshold identified in Compliance, paragraph 3.E., Tables 1 through 2, of CFM SB LEAP-1B-72-00-0392-01A-930A-D, Issue 2, whichever occurs first after the effective date of this AD; or if the applicable CSN threshold has been exceeded as of the effective date of this AD, within 50 flight cycles (FCs) from the effective date of this AD; remove the HPT stage 1 disk from service and replace with a part eligible for installation.
(2) For engines with an installed compressor rotor stages 6-10 spool having a P/N and S/N identified in Compliance, paragraph 3.E., Table 3, of CFM SB LEAP-1B-72-00-0392-01A-930A-D, Issue 2: At the next piece-part exposure of the compressor rotor stages 6-10 spool, or before exceeding the applicable CSN threshold identified in Compliance, paragraph 3.E., Table 3, of CFM SB LEAP-1B-72-00-0392-01A-930A-D, Issue 2, whichever occurs first after the effective date of this AD; or if the applicable CSN threshold has been exceeded as of the effective date of this AD, within 50 FCs from the effective date of this AD; remove the compressor rotor stages 6-10 spool from service and replace with a part eligible for installation.
For the purpose of this AD, a “part eligible for installation” is an HPT stage 1 disk or compressor rotor stages 6-10 spool that does not have a P/N and S/N identified in Compliance, paragraph 3.E., Tables 1 through 3 of CFM SB LEAP-1B-72-00-0392-01A-930A-D, Issue 2.
After the effective date of this AD, do not install an HPT stage 1 disk or compressor rotor stages 6-10 spool that has a P/N and S/N identified in Compliance, paragraph 3.E., Tables 1 through 3 of CFM SB LEAP-1B-72-00-0392-01A-930A-D, Issue 2 on any engine.
This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed prior to the effective date of this AD by following the Accomplishment Instructions specified in CFM SB LEAP-1B-72-00-0392-01A-930A-D, Issue 001, dated March 7, 2023.
(1) The Manager, AIR-520 Continued Operational Safety Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the AIR-520 Continued Operational Safety Branch, send it to the attention of the person identified in paragraph (l)(1) of this AD and email to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Mehdi Lamnyi, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7743; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) CFM International, S.A. Service Bulletin LEAP-1B-72-00-0392-01A-930A-D, Issue 002, dated September 5, 2023.
(ii) [Reserved]
(3) For service information identified in this AD, contact CFM International, S.A., GE Aviation Fleet Support, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45215; phone: (877) 432-3272; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment with deferrals.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, with two deferrals, an amendment to the Virginia regulatory program (the Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). This amendment includes revisions to Virginia's statutes and/or coal mining regulations that: remove self-bonds from the types of performance bond instruments authorized; adjust the financing of its alternative bonding system (ABS), which is in the form of a bond pool; and revise proof of publication requirements involving permit applications and bond release applications. We are deferring our decision on the removal of a regulation requiring certain actions by self-bonded operators when a condition affects their financial status and the proposed monetary cap on Virginia's pool bond fund.
The effective date is January 10, 2024.
Mr. Michael Castle, Acting Field Office Director, Charleston Field Office. Telephone: (859) 260-3900, Email:
Virginia's bonding program is authorized under Title 45.1 of the Code of Virginia, Chapter 19,
a.
b.
Further, in order to participate in the ABS, an operator must post an underlying financial security in the form of a performance bond. The performance bond can be in the form of any bond type approved by Virginia. The amount of the underlying financial security is determined by the greater of either a per-acre sum or a stated minimum, but is not tied to the estimated cost of reclamation. This underlying financial security results in a bond calculation that is less than the amount required under a full-cost bond, which considers the estimated cost of reclamation in its calculation.
Various sources of funding make up the bond pool fund account (an interest-bearing account referred to as the Coal Surface Mining Reclamation Fund or the “Fund”), which is used to supplement the underlying financial security. These sources include entrance fees, a reclamation tax based upon coal production, special assessments, interest, and civil penalty collections. Before 2014, the reclamation tax was collected from Fund participants commencing with and running from the date of the coal production, processing, or loading from those operations under a permit for a period of one year. When the quarterly Fund balance (including interest earned) was less than $1.75 million, participants paid the following amounts on a quarterly basis into the Fund according to the type of permit: $0.04/ton of coal extracted/produced for surface mining; $0.03/ton for deep mining; and $0.015/ton for preparation or loading facilities. When any quarterly Fund balance was greater than $2 million, payments would cease until any quarterly Fund balance was less than $1.75 million. The Fund is used for the following purposes only: (1) reclaiming permit areas covered by the Fund in the event of bond forfeiture (after the underlying financial security is used); and (2) covering administrative costs of the Fund. The Fund is administered by the Virginia Department of Mines, Minerals and Energy (DMME), now known as the Virginia Department of Energy (
Virginia's Reclamation Fund Advisory Board (RFAB), previously known as the Pool Bond Fund Advisory Committee (PBFAC), consists of five members and is responsible for formulating recommendations to Virginia's Director of the DMME (the Director) concerning oversight of the general operation of the Fund. The RFAB reports biannually to the Director and to the Governor on the status of the Fund and makes recommendations to the Director involving regulations or changes for the administration or operation of the Fund.
Following the 2012 actuarial review of the ABS and to improve the operation of the ABS, in March 2014, Virginia enacted Senate Bill 560 (S.B. 560) and House Bill 710 (H.B. 710) to amend certain provisions of the VACSMCRA.
By letter dated June 12, 2015, Virginia sent us an amendment to its program under SMCRA (Administrative Record No. VA 2024). With this amendment, Virginia seeks to revise Va. Code 45.1-241, 45.1-270.3, and 45.1-270.4, as amended by 2014 Va. Acts chs. 111, 135 (Administrative Record No. VA 2021). Virginia also seeks to revise its administrative regulations at Title 4 of the VAC that involve the option to self-bond and the ABS fees and taxes.
In addition to the revisions to Virginia's bonding program, Virginia also seeks to revise its permitting regulations by modifying its procedures related to the submission of proof that public notice had been published in a newspaper of general circulation for permit applications and bond release applications. Virginia also proposed certain non-substantive editorial statutory and regulatory revisions that involve clarification of syntax, renumbering of paragraphs, and reference changes, but do not change the administrative regulations substantively. The full text of the program amendment is available at
We announced receipt of the proposed amendment in the October 22, 2015,
In a letter dated October 24, 2016, Virginia clarified that while the submission included a revision that removed escrow bonds from its approved list of types of acceptable performance bond at 4 VAC 25-130-800.23, it was not their intent to do so. (Administrative Record No. VA 2040). Therefore, escrow bonds are not being addressed in this document.
In a letter dated April 24, 2017, Virginia notified us of a change affecting its initial submission (Administrative Record No. VA 2041). The original submission included changes to the reclamation tax payments under Va. Code 45.1-270.4,
Most recently, during a 2021 special legislative session, the Virginia legislature enacted Senate Bill 1453 (S.B. 1453) (approved March 24, 2021) and House Bill 1855 (H.B. 1855) (approved April 7, 2021). These bills amended the Virginia Code to, among other things, rename the Department from the “Department of Mines Minerals and Energy” to the “Department of Energy,” and recodify and reorganize Virginia's mining laws from Title 45.1,
The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment, with deferrals, as described below.
Virginia seeks to revise the following statutory and regulatory provisions related to self-bonding.
Subsection (c) provides that Virginia may accept the bond of an applicant of an underground mining operation without surety as provided by 4 VAC 25-130-801.13 upon a showing of an applicant's worth equivalent to $1 million and certified by an independent certified public accountant (CPA) initially and annually.
Subsection (d) provides that Virginia may accept the bond of an applicant of a surface mining operation or associated facility without separate surety if certain conditions are met (
Subsection (a) prescribes the requirements to designate a suitable agent for service of process, provide the name and address of the CPA who prepared the statement of the applicant's net worth, and provide the location of the financial records that were used for the CPA's statement. In addition, it provides the requirements for submitting an acceptable cognovit note.
Subsection (b) prescribes the requirement to provide evidence indicating a history of satisfactory continuous operation and financial solvency.
Subsection (c) requires that the CPA certification be updated to reflect prior obligations and self-bonding liabilities still in effect whenever a Fund participant applies for additional permit(s).
Subsection (d) requires that whenever the conditions upon which the self-bond was approved no longer prevail, Virginia must require the posting of a surety or collateral bond before coal surface mining operations may continue. The permittee is responsible to immediately notify DMME of any change in total liabilities or total assets which would jeopardize the support of the self-bond. If permittees fail to have sufficient resources to support the self-bond, they are deemed to be without bond coverage and in violation of bond requirements.
Changes in the coal market and coal mining industry have resulted in changes to the financial solvency of some coal companies and have highlighted the need to ensure adequate financial assurance exists to ensure the reclamation of disturbed mine lands. Therefore, it is prudent that Virginia examined its financial assurance program and reconsidered the types of performance bonds it will accept as a reclamation guarantee. While SMCRA authorizes a regulatory authority to accept a self-bond as financial assurance, it does not require a regulatory authority to do so. SMCRA provides a regulatory authority with discretion to implement more stringent requirements, such as implementing a financial assurance program that requires more security than that provided through a self-bond. We have determined that the elimination of self-bonding through deletions from sections 45.1-241 and 45.1-270.3 of VACSMCRA does not make the Virginia program less stringent than SMCRA or less effective than the Federal regulations. Therefore, we approve these changes.
We note this amendment requests the deletion of the definition of
We are not approving the removal of 4 VAC 25-130-801.13(d) at this time. This subsection requires the permittee to promptly notify Virginia of any condition affecting the permittee's financial status and prescribes the subsequent action to be taken when such conditions exist. Because some operators remain self-bonded, Virginia's request that the entire section on self-bonding be removed would mean that there would not be any regulations in place to address the action the operator or regulatory authority must take should a self-bonded permittee become insolvent or file for bankruptcy. The Federal regulations at 30 CFR 800.23(g) require that if, at any time during the period when a self-bond is posted, the financial conditions of the applicant or non-parent corporate guarantor change so that the conditions upon which the self-bond was approved no longer apply, the permittee must notify the regulatory authority immediately and post an alternate form of bond in the same amount as the self-bond within 90 days after notification. If an adequate bond is not posted by the end of the period allowed, the permittee must cease coal extraction and comply with the provisions of 30 CFR 800.16(e). Paragraph (e)(2) of 30 CFR 800.16 requires that in the event of bankruptcy, the permittee must be deemed to be without bond coverage and must be required to replace bond coverage within 90 days. If an adequate bond is not posted by the end of the 90-day period, the permittee is subject to the provisions of 30 CFR 816.132 or 817.132, which address cessation of operations (temporary and permanent). Mining operations must not resume until the regulatory authority has determined that an acceptable bond has been posted. Subsection (d) of 4 VAC 801.13, which Virginia seeks to delete, addresses the situation mentioned above. Without this subsection, there would not be any regulation that provides for immediate and corrective action, which would render Virginia's administrative regulations less effective than 30 CFR 800.23(g) and its related regulations.
We have determined that the subsection 4 VAC 25-130-801.13(d) cannot be removed until all previously approved self-bonds have either been: (1) lawfully released based on an accurate determination that the permittee has satisfactorily completed all reclamation obligations; or (2) replaced with an adequate substitute bond or set of bonds, each of which is backed by a qualified surety, adequate cash deposit, qualified government securities, qualified bank instruments, or an adequate combination of these forms of financial assurance/bond. Therefore, we are not approving the removal of subsection (d) at this time.
Virginia also seeks to revise subsection A to add paragraphs (1) and (2) (which previously appeared under Va. Code 45.1-270.4.C), specifying how the Fund balance must be calculated. Under these paragraphs, planned expenditures are deducted from the Fund balance at the time the engineering cost estimate is prepared, and, if the actual expenditures are less than the engineering cost estimate, an adjustment (credit) is made to the Fund.
First, we caution that a bond pool, particularly in an uncertain coal market, brings inherent risks to participating permittees and to Virginia. If the number of bond pool members and the amount of coal produced in Virginia decline, the production fees placed on coal being produced will need to rise correspondingly to maintain a financially sound and stable bond pool fund. Second, we focused our findings on the review of the provisions of the ABS and Virginia's ability to assure the objectives and purposes of the system are capable of being met. The actuarial recommendations were considered as part of the review. Subsequent oversight reviews of the ABS will be necessary to determine whether or not the ABS meets the provisions of 30 CFR 800.11(e), including the changes approved with this amendment. Our findings of the changes to the Virginia Code related to reclamation tax collection and limits follow:
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Subsection (a) provides for voluntary participation in the Fund for a permittee that can demonstrate at least a three-year history of compliance under the Act or any other comparable State or Federal Act.
Subsection (b) requires all participants in the Fund pay entrance fees as required by 4 VAC 25-130-801.12(a) and comply with the applicable parts of Va. Code 45.1-241.
Subsection (c) requires an irrevocable commitment by the permittee.
Subsection (d) provides that all fees and taxes are nonrefundable.
Subsection (e) permits the use of monies from the interest accrued to the Fund, as provided by Va. Code 45.1-270.5(B), to support one position for the administration of the Fund. If one position is deemed insufficient to ensure proper administration of the Fund, Virginia can obtain additional assistance if the Reclamation Fund Advisory Board concurs.
Regarding subsection (e), we note that while the administrative regulation
Virginia also seeks to delete subsection (g), which requires that, if a mining operation is to be in temporary cessation for more than six months, mining operators must post bond equal to the total estimated cost of reclamation for all portions of the permitted site which are in temporary cessation prior to the date on which the operation has been in temporary cessation for more than six months. This subsection provides additional time to post bond for operations that were in temporary cessation as of July 1, 1991. It also provides that the amount of the bond required for each area bonded is determined by DMME in accordance with 4 VAC 25-130-800.14 and remains in effect throughout the remainder of the period during which the site is in temporary cessation. When the site returns to active status, the bond posted would be released, provided the permittee had posted bond pursuant to subsection (b) of this section.
Va. Code 45.1-270.3.E requires full cost bond for these areas until the operation is back in active status and the operator can demonstrate alternative bonding requirements are met. The remainder of the approved Virginia program would still be relevant in determining the proper amount of full-cost bonding. Therefore, the specific reference to 4 VAC 25-130-800.14 being deleted by this revision to 4 VAC 25-130-801.12 does not affect the Virginia program as we have already approved it. Therefore, we are approving this deletion.
Subsection (a) provides that if, at the end of any calendar quarter, the total balance of the Fund (including interest) is less than $1.75 million, the reclamation tax assessment will be imposed. The reclamation tax amounts are provided as $.04/ton for surface mining operations; $.03/ton for underground mining; and $.015/ton for coal processing or preparation facilities, and are due within 30 days after the end of each taxable calendar quarter.
Subsection (b) provides that if, at the end of any calendar quarter, the total balance of the Fund (including interest) exceeds $2 million, payments will be deferred until required by subsection (a).
Subsection (c) provides that no permittee is required to pay the reclamation tax on more than 5 million tons produced per calendar year, regardless of the number of permits held by the permittee, except as provided in subsection (e).
Subsection (d) applies to permittees holding more than one type of permit and the amount of reclamation tax to be paid in such situations. It provides that any permittee holding more than one type of permit will not pay more than $.055/ton on coal originally surface mined by that permittee or $.045/ton of coal originally deep mined (underground mined) by that permittee. It also provides that for permittees holding one permit upon which coal is both mined and processed or loaded, the permittee will not pay more than the tax applicable to the surface or underground mining operation. However, the permittee must pay $.015/clean coal ton for all coal processed and/or loaded at the permit which originated from other permits during the calendar quarter.
Subsection (e) provides that the reclamation tax is required during the one-year period commencing with and running from the date of commencement of coal production, processing, or loading from the permit.
Subsection (a) involves the consequences of an operator's default on any reclamation obligation that causes the Fund to incur reclamation expenses. The permittee will no longer be eligible to participate in the Fund for any new permit or any permit renewal thereafter until full restitution for such default has been made to the Fund. The Director, along with the recommendation from the PBFAC (which was later replaced by the RFAB but not updated in this regulation), may require that the person seeking reinstatement pay interest at the composite rate determined by the Treasurer of Virginia compounded monthly.
Subsection (b) requires compliance with subsection (a) before seeking new permits or renewal of existing ones.
Regarding the regulation's reference to permit renewal, the statute at Va. Code 45.1-270.6.A states in relevant part: “An operator who has defaulted on any reclamation obligation and has thereby caused the Fund to incur reclamation expenses as a result thereof
Regarding interest payments, we note that Va. Code 45.1-270.6.A requires restitution by operators before they may be reinstated as a Fund participant. We understand from Virginia's submission that this provision duplicates Virginia's statutes, including its current interpretation and implementation of the statutes, and therefore the deletion of this sentence would not affect Virginia's current implementation of its program seeking interest as part of restitution to the Fund. We also note that there are no counterpart Federal regulations that direct the manner in which a state would seek such restitution. To the extent that the deletion of this sentence would cause Virginia to collect less restitution by omitting interest, just as it could currently at the Director's discretion, our review would occur in the course of our oversight of the adequacy of the ABS system as a whole. For these reasons, the deletion of 4 VAC 25-130-801.16 does not render the Virginia program inconsistent with SMCRA, and we are approving the deletion in its entirety.
In response to our 2014 review findings, Virginia seeks to revise requirements related to the timing of an applicant's submission to DMME of proof that it had published public notice of its exploratory permit applications, mining permit-related applications, and bond release applications referenced in 4 VAC 25-130-772.12, 778.21, and 800.40. In its submission, Virginia stated that these provisions are being revised to coincide with corresponding Federal regulations.
Virginia proposes to revise its regulations by removing the timeframe within which a copy of the required newspaper announcement or proof of publication must be filed with DMME. Rather than requiring proof of publication within four weeks of the date of publication, the revised regulations will require the applicant to submit proof of publication with a subsequent submittal related to the permit application. The following sections related to proof of publication of notice for exploratory permit applications, mining permit-related applications, and bond release applications are affected by this change:
Based on this regulatory history of 30 CFR 778.21, we have determined that the change at 4 VAC 25-130-778.21 does not render Virginia's program less effective than the Federal regulations. Virginia's revision only relates to the length of time that may elapse before DMME receives proof that an applicant has complied with its duty to publish public notice. The revision does not relieve an applicant of its duty to publish the notice in a timely fashion, nor does it affect the public's opportunity to participate in the permit application process. Moreover, Virginia's revision does not unduly delay the permit review process. We understand that electronic permitting is designed to improve the permitting process by reducing administrative delays that existed in the conventional process and making public participation more accessible. To the extent that these improvements require greater flexibility regarding the time in which an applicant can submit proof of publication to DMME, prior to final action on the application, the proposed revision is no less effective than the Federal regulations, and we approve this change.
Virginia also proposed certain editorial revisions, which include clarification of syntax, renumbering of paragraphs, and reference changes, but do not change the administrative regulations substantively. The editorial statutory changes are found in sections 45.1-270.3 (clarification of syntax in subsection A and re-lettering of subsections D, E, and F) and 45.1-270.4 (clarification of syntax in subsections B and C and clarification of syntax and renumbering of subsection E). The editorial regulatory changes are found at 4 VAC 25-130-801.12 (re-lettering of subsections (e) and (f)) and 4 VAC 25-130-801.15 (clarification at subsection (a) and reference changes at subsections (b) and (d)). Because the changes in these sections are only editorial adjustments and corrections, we are approving them.
We asked for public comments on two occasions. We announced receipt of the amendment and opportunity for public comment and/or hearing in the October 22, 2015,
The commenters also support their position by referencing our November 1990 report entitled “Alternative Bonding Systems: An Analytical Approach and Identified Factors to Consider for Evaluating Alternative Bonding Systems” (commenters refer to it as the “ABS Memo”) and a letter from an internationally recognized actuarial consultant, Tillinghast, dated November 9, 1990 (commenters refer to it as the Tillinghast Letter). The commenters state that it is the only known criteria that we have endorsed related to the evaluation of an alternative bonding system.
As the November 1990 report states, the analysis was conducted by an ad hoc committee whose purpose was to develop consistent considerations for evaluating an ABS. The report identifies factors which are recommended for use in analyzing and understanding the mechanisms for an ABS to operate as a solvent and legally sufficient system capable of complying with statutory and regulatory requirements. The considerations were developed through research and discussions with states and were supplemented with the advice of Tillinghast.
The commenters refer to these guidelines as our stated criteria for evaluating an ABS and state that SMCRA requires us to evaluate each system on every occasion when the regulatory authority proposes to change it. Referring to those guidelines, the commenters had three areas of concern, which we will address below.
The commenters suggest that we should direct Virginia to consider, based on the results of the new actuarial study, eliminating the bond pool system entirely if financial distress in the coal mining industry continues. The commenters suggest individual surety bonds for the full reclamation amount offer the most reliable guarantee that funds will be available to carry out the reclamation required by SMCRA.
The commenters state that, in approving Virginia's regulations, we should consider the comments submitted by the SAMS and SC. They opine that although eliminating self-bonding is a good start, Virginia needs to do more to prevent the citizens from bearing the costs of mine clean up. They request that we advise Virginia that it needs to do more and undertake a new study that actually accounts for the effects of decreased coal production and mine operator insolvency and eliminate caps on its pooled reclamation fund.
On June 23, 2015, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the Virginia program (Administrative Record No. 2025). No Federal agency comments were received.
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 23, 2015, we requested comments from the Virginia Department of Historic Resources on Virginia's amendment (Administrative Record No. VA 2025). We did not receive any comments.
Based on the above findings, we are approving Virginia's amendment that was submitted to us on June 12, 2015 (Administrative Record No. 2024), with the following two deferrals:
1. We are deferring our decision on the removal of 4 VAC 25-130-801.13(d) of the self-bonding regulations until all previously approved self-bonds have either (1) been lawfully released based on an accurate determination that the permittee has satisfactorily completed all reclamation obligations, or (2) been replaced with an adequate substitute bond or set of bonds, each of which is backed by a qualified surety, adequate cash deposit, qualified government securities, qualified bank instruments, or an adequate combination of these forms of financial assurance.
2. We are deferring our decision on the provisions of 45.1-270.4.B and C of the Virginia Code to the extent that they impose a cap of $20 million. We are approving the continuing collection of the tax beyond $2 million but deferring our decision on the cessation of the tax collection when the Fund reaches $20 million until such time as Virginia either takes legislative action to remove the cap from this statute or demonstrates that $20 million is a sufficient amount of money to complete the reclamation, including water treatment, on any area covered by the Fund. Our deferral has the effect of removing the cap upon the amount of money that can be in the Fund at any given time and will remain in effect until Virginia makes that demonstration.
To implement this decision, we are amending the Federal regulations at 30 CFR part 946 that codify decisions concerning the Virginia program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication.
This rule would not effect a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.
Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program is exempted from OMB review under Executive Order 12866, as amended by Executive Order 14094. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
The Department of the Interior has reviewed this rule as required by section 3 of Executive Order 12988. The Department determined that this
This rule has potential federalism implications as defined under section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. Virginia, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves an amendment to the Virginia program submitted and drafted by the State, and thus is consistent with the direction to provide maximum administrative discretion to States.
The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the Federal Government and Tribes. The basis for this determination is that our decision on the Virginia program does not include Indian lands, as defined by SMCRA, or regulation of activities on Indian lands. Indian lands are regulated independently under the applicable, approved Federal program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.
Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.
This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action does not address environmental health or safety risks disproportionately affecting children.
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 3701
This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.
This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This determination is based on an analysis of the Federal regulations that set minimum performance standards for alternative bonding systems, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
Intergovernmental relations, Surface mining, Underground mining.
For the reasons set out in the preamble, 30 CFR part 946 is amended as follows:
30 U.S.C. 1201
(d) We are not approving the following portions of provisions of the proposed program amendment that Virginia submitted on June 12, 2015:
(1) We are deferring our decision on the removal of 4 VAC 25-130-801.13(d) of the self-bonding regulations until all previously approved self-bonds have either been lawfully released based on an accurate determination that the permittee has satisfactorily completed all reclamation obligations or replaced with an adequate substitute financial assurance under the approved Virginia regulatory program.
(2) We are deferring our decision on the provisions of 45.1-270.4.B and C of the Virginia Code that address reclamation tax revenue to the extent that they impose a cap of $20 million. We are approving the continuing collection of the tax beyond $2 million but deferring our decision on the cessation of the tax collection when the Fund reaches $20 million until such time as Virginia either takes legislative action to remove the cap from this statute or demonstrates that $20 million is a sufficient amount of money to complete the reclamation, including water treatment, on any site covered by the Fund.
Postal Service
Final rule.
The U.S. Postal Service
This rule is effective December 11, 2023.
Questions on this action are welcome. Mail or deliver written comments to Postal Inspector in Charge, Office of Counsel, U.S. Postal Inspection Service, 475 L'Enfant Plaza SW, Room 3114, Washington, DC 20260-3100.
Louis DiRienzo, Postal Inspector in Charge, Office of Independent Counsel, U.S. Postal Inspection Service, 202-268-2705.
On May 22, 2023, the Postal Service
Administrative practice and procedure, Crime, Law enforcement, Penalties, Privacy.
For the reasons stated in the preamble, the Postal Service amends 39 CFR part 233 as follows:
39 U.S.C. 101, 102, 202, 204, 401, 402, 403, 404, 406, 410, 411, 1003, 3005(e)(1), 3012, 3017, 3018; 12 U.S.C. 3401-3422; 18 U.S.C. 981, 983, 1956, 1957, 2254, 3061; 21 U.S.C. 881; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-208, 110 Stat. 3009; Secs. 106 and 108, Pub. L. 106-168, 113 Stat. 1806 (39 U.S.C. 3012, 3017); Pub. L. 114-74, 129 Stat. 584.
U.S. Small Business Administration.
Notice of availability of white paper on Revised Size Standards Methodology for comments.
The U.S. Small Business Administration (SBA or Agency) advises the public that it has revised its white paper explaining how it establishes, reviews, and modifies small business size standards. The revised white paper provides a detailed description of SBA's size standards methodology, including changes from SBA's 2019 Revised Size Standards Methodology (2019 Methodology, available at
SBA must receive comments to the 2023 Revised Methodology on or before February 9, 2024.
The 2023 Revised Methodology White Paper, titled “SBA's Size Standards Methodology (December 2023),” is available on the SBA's website at
Comments may be submitted on the 2023 Revised Methodology, identified by Docket number SBA-2023-0015, by one of the following methods: (1) Federal eRulemaking Portal:
SBA will post all comments on
Khem R. Sharma, Chief, Office of Size Standards, (202) 205-7189 or
To determine eligibility for Federal small business assistance programs, SBA establishes small business definitions (commonly referred to as “size standards”) for private sector industries in the United States. Under the Small Business Act, the SBA's Administrator has authority to establish small business size standards for Federal Government programs. SBA's existing size standards use two primary measures of business size: average annual receipts and average number of employees. Financial assets and refining capacity are used as size measures for a few specialized industries. In addition, the SBA's Small Business Investment Company (SBIC), 7(a), Certified Development Company (CDC/504) Programs determine small business eligibility using either the industry based size standards or tangible net worth and net income based alternative size standards. Presently, there are 102 different size standards, covering 978 industries and 14 exceptions. Of these, 505 are based on average annual receipts, 483 on number of employees (one of which also includes barrels per calendar day total refining capacity), and four on average assets.
The Jobs Act (Pub. L. 111-240, 124 Stat. 2504, Sept. 27, 2010) requires SBA to review, every five years, all size standards and make necessary adjustments to reflect market conditions. SBA completed the first five-year review of size standards under the Jobs Act in early 2016
The goal of SBA's size standards review is to determine whether its existing small business size standards reflect the current industry structure and Federal market conditions and revise them if the latest available data suggests that revisions are warranted. The Small Business Act (the Act), 15 U.S.C. 632(a) (Pub. L. 85-536, 67 Stat. 232, as amended) requires that the size standard varies from industry to industry to the extent necessary to reflect the differing characteristics of the various industries. SBA evaluates the structure of each industry in terms of four economic characteristics or factors, namely average firm size, average assets size as a proxy of startup costs and entry barriers, the four-firm concentration ratio as a measure of industry competition, and size distribution of firms using the Gini coefficient (13 CFR 121.102(a)). Besides industry structure, SBA also examines the impact of an existing size standard as well as the potential impact of a revised size standard on small business participation in Federal contracting as an additional primary factor when establishing or reviewing the size standards. SBA generally considers these five factors—average firm size, average assets size, four-firm concentration ratio, Gini coefficient, and small business participation in Federal contracting—to be the most important factors in determining an industry's size standard. The 2023 Revised Size Standards Methodology White Paper provides a detailed description of evaluation of these factors (including relevant data sources) and derivation of size standards based on the results.
SBA also periodically adjusts all monetary based standards for inflation. In accordance with SBA's regulations
Section 3(a) of the Act provides the SBA's Administrator (Administrator) with authority to establish small business size standards for Federal Government programs. The Administrator has discretion to determine precisely how SBA should establish small business size standards. The Act and its legislative history highlight three important considerations for establishing size standards. First, as stated earlier, size standards should vary from industry to industry according to differences among industries. 15 U.S.C. 632(a)(3). Second, a firm that qualifies as small under the SBA's size standard shall not be dominant in its field of operation. 15 U.S.C. 632(a)(1). Third, pursuant to 15 U.S.C. 631(a), the policies of the Agency should assist small businesses as a means of encouraging and strengthening their competitiveness in the economy. These three considerations continue to form the basis for the SBA's methodology for establishing, reviewing, or revising small business size standards.
The 2023 Revised Methodology, available for review and comment on the SBA's website at
SBA's 2023 Revised Methodology describes various changes and revisions to the 2019 Methodology and provides a detailed history of changes to SBA's methodology for evaluating size standards over the years. In the past, including the first five-year review of size standards under the Jobs Act, to determine an overall size standard for each industry, SBA compared the characteristics of each industry with the average characteristics of a group of industries associated with an “anchor” size standard. For example, in the first five-year review of size standards, $7 million (now $9 million due to the inflation adjustments in 2014, 2019, and 2022) was considered the “anchor” for receipts based size standards and 500 employees was considered the “anchor” for employee based size standards. If the characteristics of a specific industry under review were similar to the average characteristics of industries in the anchor group, SBA generally adopted the anchor size standard for that industry. If the specific industry's characteristics were significantly higher or lower than those for the anchor group, SBA assigned a size standard that was higher or lower than the anchor.
In response to public comments received during the first five-year review of size standards concerning SBA's size standards methodology, section 3(a)(7) of the Act that limits the SBA's ability to create common size standards by grouping industries below the four-digit NAICS level, and its own review of the methodology, in the 2019 Methodology, SBA replaced the “anchor” approach with the “percentile” approach, as a basis of evaluating industry factors and deriving a size standard for each industry factor for each industry.
In the 2023 Revised Methodology, SBA is maintaining the “percentile” approach as a basis of evaluating industry factors and deriving size standards for each industry factor for each industry; however, based on its review of the current methodology, SBA is proposing two major changes to its size standards methodology.
The first major change is to replace the current approach to account for the Federal contracting factor with the disparity ratio approach. Under the 2019 Methodology SBA defines the Federal contracting factor in terms of the difference between the small business share of total contract obligations and the small business share of industry' receipts. If the small business share of an industry total receipts exceeds the small business share of total contract obligations by ten percentage points or more, all else being the same, SBA would increase that industry's current size standard by certain amount depending on the amount of that difference. If that difference is less than ten percentage points, SBA considers that the current size standard is sufficient with respect to the Federal contracting factor.
Under the disparity ratio approach, SBA computes a disparity ratio as a ratio (instead of the difference) between the small business share of contract obligations (utilization ratio) and the small business share of industry receipts (availability ratio). SBA also computes a second disparity ratio as a ratio between small business share of the number of contracts (utilization ratio) and the share of small firms in the total population of firms that are willing, ready, and able to bid on and perform Federal contracts (availability ratio).
If an industry's disparity ratio is less than 0.8, SBA would assume that small businesses are either materially underrepresented (
The second proposed major change is to replace the 20th percentile and 80th percentile values of industry factors for evaluating size standards at subindustry levels (“exceptions”) from those calculated based on the Economic Census data with those calculated using The Federal Procurement Data System—Next Generation (FPDS) and The System for Award Management (SAM) data.
SBA is proposing these changes in order to refine and improve its analysis of Federal contracting data used in the evaluation of industry size standards. These changes are also in response to public comments received during the second five-year review of size standards that pertained to Federal contracting trends generally. Although SBA did not specifically seek comments to the 2019 Methodology as part of the series of proposed rules issued to review size standards under the second five year review,
To determine how the above changes in the methodology would affect size standards across various industries and sectors, SBA derived the new size standards for all industries averaging $20 million or more in Federal contract dollars annually (excluding Sectors 42 and 44-45) using the 2019 Methodology and the disparity ratio approach of defining the Federal contracting factor. Overall, the calculated size standards were quite similar between the two approaches when compared to the existing size standards, with size standards increasing for some industries and decreasing for others under both approaches.
SBA believes that using FPDS-NG and SAM data to obtain the 20th percentile and 80th percentile values of industry factors for evaluating size standards for the exceptions, instead of using the percentiles from the Economic Census, will promote consistency in its analysis of the exceptions by ensuring that the percentile values and factor values for each exception are in comparable terms. Specifically, SBA has found that for most industries, the average firm size of businesses participating in Federal contracting is generally larger than the average firm size of businesses represented in the Economic Census. There are also inconsistencies in data reporting between SAM/FPDS-NG data and the Economic Census, which SBA will address by adopting the revised approach. Thus, SBA believes that using FPDS-NG and SAM to obtain the percentile values of industry factors for the exceptions will better reflect the varying economic characteristics of the underlying industries. The full results of SBA's impact analysis as well as a detailed description of the major changes to SBA's evaluation of size standards are included in the 2023 Revised Methodology.
In the 2023 Revised Methodology, SBA is also updating the minimum and maximum size standard levels based on current minimum and maximum size standard levels. The minimum size standard generally reflects the size a small business should be to have adequate capabilities and resources to be able to compete for and perform Federal contracts. On the other hand, the maximum size standard represents the level above which businesses, if qualified as small, would cause significant competitive disadvantage to smaller businesses when accessing Federal assistance. SBA will not generally propose or adopt a size standard that is either below the minimum or above the maximum level, even though the calculations might yield values below the minimum or above the maximum level.
With respect to receipts based size standards, SBA is proposing $8 million and $47 million, respectively, as the minimum and maximum size standard levels (except for most agricultural industries in Subsectors 111 and 112). These levels reflect the current minimum and the current maximum of receipts based size standards. As in the 2019 Methodology, the latest industry data from the 2017 Census of Agriculture suggests that $8 million minimum and $47 million maximum size standard levels would be too high for agricultural industries in Subsector 111 and Subsector 112. Accordingly, SBA is proposing $2.25 million and $5.5 million, respectively, as the minimum and maximum size standard levels for agricultural industries in Subsectors 111 and 112 (excluding NAICS 112112 and NAICS 112310). These levels represent the current minimum and current maximum levels of size standards in Subsectors 111 and 112 (excluding NAICS 112112 and NAICS 112310).
Regarding employee based size standards for manufacturing and other industries that have employee based size standards (excluding Wholesale and Retail Trade), SBA's proposed 250-employee minimum and 1,500-employee maximum are the current minimum and maximum employee based size standards among those industries. For employee based size standards for Wholesale Trade and Retail Trade industries, the proposed minimum and maximum size standards levels are 50 employees and 250 employees, respectively.
SBA is also updating the percentile values, derived from the latest 2017 Economic Census and other industry data, used to evaluate the structure of each industry in terms of the four economic characteristics or factors, namely average firm size, average assets size, the four-firm concentration ratio, and the Gini coefficient. As explained in
SBA welcomes comments from the public on a number of issues concerning its size standards methodology. Specifically, SBA invites feedback and suggestions on the following:
• Should SBA establish size standards that are higher than industry's entry-level business size? SBA generally sets size standards higher than the entry-level business size to enable small businesses to compete against others of their size and considerably larger businesses for Federal contracts set aside for small businesses. It is important that small businesses be able to apply for and be eligible for SBA's various business development programs that have additional requirements, such as a minimum number of years in business to qualify for its 8(a) Business Development Program. This precludes setting size standards at too low a level or at the entry-level size. Additionally, establishing size standards at the industry entry-level firm size would cause small businesses to outgrow their eligibility very quickly, thereby lacking sufficient cushion or experience to succeed outside of the small business market. Finally, size standards must be above the entry-level size to ensure small businesses have necessary resources and capabilities to be able to perform and meet Federal Government contracting requirements.
• Should there be a ceiling beyond which a business concern cannot be considered as small? In other words, should there be a maximum size standard? SBA has not increased its employee based standards beyond the 1,500-employee level. However, receipts based size standards have gradually increased over time due to inflationary adjustments and the highest receipts based size standard stands at $47 million today. This is a policy decision that the Agency should make—is there a size beyond which a business is not small?
• Should SBA consider adjusting employee based size standards for labor productivity growth or increased automation? Just as firms in industries with receipts based standards may lose small business eligibility due to inflation, firms in industries with employee based standards may gain eligibility due to improvement in labor productivity and technical change.
• Should SBA consider lowering its size standards generally? SBA receives periodic comments from the public that its standards are too high in certain industries or for certain types of Federal contracting opportunities. The comments generally concern the competitive edge that large small businesses have over the “truly small businesses” (a phrase heard frequently from commentators). On the other hand, SBA also receives comments from advanced small businesses that its size standards are too small to qualify for Federal contracting opportunities and other Federal small business assistance. This has always been a challenging issue, one that SBA has had to deal with over the years. SBA's size standards appear too large to the smallest of small businesses while more advanced small businesses often request even higher size standards.
• In response to the distressed economic environment in the aftermath of the 2007-2009 Great Recession, in the first five-year review of size standards, SBA adopted a policy of not lowering size standards even though the data supported lowering them. Similarly, in response to the COVID-19 pandemic and its impacts on small businesses and the overall economy, during the second five-year review of size standards, SBA adopted a similar policy of not lowering any size standards even if the analytical results supported lowering them. Should SBA lower size standards regardless of prevailing economic conditions when the analytical results support lowering them or should it consider the prevailing economic environment when deciding on whether to revise size standards?
• Should SBA adopt new disparity ratio approach to evaluating small business participation in the Federal market, which will replace the Federal contracting factor the Agency used in the past. Should SBA adopt the results from the power analyses of the disparity ratios? Since only a very few industries were impacted by the power analyses, SBA has decided to not use the results from the power analyses.
• SBA is proposing to use FPDS-NG and SAM data to obtain the 20th percentile and 80th percentile values of industry factors for evaluating size standards for the NAICS exceptions, instead of using the percentiles from the Economic Census. Should SBA continue using the Economic Census data to obtain the 20th percentile and 80th percentile values of industry factors for evaluating size standards for exceptions or should it start using FPDS-NG and SAM data to calculate 20th and 80th percentile values of industry factors for evaluating exceptions?
• Should size standards vary from program to program? In other words, should SBA establish one set of standards for SBA financial programs, another for Federal procurement, or yet another for other Federal programs? SBA had, in the 1980s, established different size standards for different programs. The result had been that some firms were small for some programs and large for others. Such size standards were very confusing to users and caused unnecessary and unwanted complexity in their application. The statutory guidance encourages an industry-by-industry analysis and not a program-by-program analysis when developing small business size definitions. While the characteristics and needs of a particular SBA program may necessitate the deviation from the uniform size standards, the Agency will continue its general policy of favoring one set of size standards for all programs. However, SBA has established 14 special size standards for some activities (commonly referred to as “exceptions”) within certain industries for Federal Government purposes. Similarly, for industries in Wholesale Trade and Retail Trade, SBA has established industry specific size standards for SBA's loan and other Federal nonprocurement programs and a common 500-employee size standard for Federal procurement under the nonmanufacturer rule. Additionally, for SBA's SBIC, 7(a), and CDC/504 Programs businesses can qualify either based on industry specific size standards for their primary industries or based on a tangible net worth and net income based alternative size standard.
• Should size standards apply nationally or should they vary geographically? The data SBA obtains from the Economic Census are national data. While the Economic Census does publish a Geographic Series of the data, application of those data to evaluating and establishing size standards would be cumbersome and time consuming at best, resulting in a very complex set of size standards that would likely be
• Are there alternative approaches that SBA should consider for determining small business size standards?
• How have SBA's latest size standards revisions impacted competition in general and within a specific industry?
• Are there alternative or additional factors or data sources that SBA should consider when establishing, reviewing, or revising size standards?
• Does SBA's current approach to establishing or modifying small business size standards make sense in the current economic environment?
SBA encourages the public to review and comment on the Revised Methodology, which is available at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Leonardo S.p.a. Model A109C, A109E, A109K2, A109S, and AW109SP helicopters. This proposed AD was prompted by reports of loose tail rotor duplex bearing locking nuts, possibly caused by improper installation. This proposed AD would require disassembling certain tail rotor duplex bearings and reassembling them in accordance with updated service information. This proposed AD would also prohibit installing certain tail rotor duplex bearings. These actions are specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by January 25, 2024.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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• For EASA material identified in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Parkway, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110. The EASA material is also available at
Sungmo Cho, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7241; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0105, dated May 23, 2023 (EASA AD 2023-0105), to correct an unsafe condition on Leonardo S.p.A. Model A109C, A109E, A109K2, A109LUH, A109S, and AW109SP helicopters. EASA advises of reports of loosening of the tail rotor duplex bearing locking nut. Subsequent investigations identified incorrect accomplishment of the assembly and continued maintenance instructions of the tail rotor duplex bearing housing and slider group as the most likely root cause of that loosening. The FAA is proposing this AD to detect and address the incorrect assembly of the tail rotor duplex bearing.
This unsafe condition, if not addressed, could lead to failure of the tail rotor function, possibly resulting in loss of control of the helicopter. See EASA AD 2023-0105 for additional background information.
EASA AD 2023-0105 requires replacing certain parts through the disassembly and reassembly of the tail rotor duplex bearing and the pitch change slider assembly. EASA AD 2023-0105 also prohibits installing certain parts on any helicopter.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.
This proposed AD would require accomplishing the actions specified in EASA AD 2023-0105, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and EASA AD 2023-0105.”
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0105 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0105 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0105 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0105. Service information referenced in EASA AD 2023-0105 for compliance will be available at
EASA AD 2023-0105 applies to Model A109LUH helicopters, however, this proposed AD would not because that model is not FAA type-certificated.
The FAA estimates that this AD, if adopted as proposed, would affect 160 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. The FAA estimates the following costs to comply with the proposed AD.
Disassembly and reassembly of the tail rotor housing and slider assembly would take approximately 8 work-hours for an estimated cost of $680 per helicopter and $108,800 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by January 25, 2024.
None.
This AD applies to all Leonardo S.p.a. Model A109C, A109E, A109K2, A109S, and AW109SP helicopters, certificated in any category.
Joint Aircraft Service Component (JASC) Code: 6400, Tail Rotor System.
This AD was prompted by reports of loose tail rotor duplex bearing locking nuts, possibly caused by improper installation. The FAA is issuing this AD to detect and address the incorrect assembly of the tail rotor duplex bearing. The unsafe condition, if not addressed, could lead to failure of the tail rotor function, possibly resulting in loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraphs (h) and (i) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2023-0105, dated May 23, 2023 (EASA AD 2023-0105).
(1) Where EASA AD 2023-0105 requires compliance in terms of flight hours, this AD requires using hours time-in-service.
(2) Where EASA AD 2023-0105 refers to its effective date, this AD requires using the effective date of this AD.
(3) Where the service information referenced in EASA AD 2023-0105 specifies to “discard” parts; for this AD, replace that text with “remove from service.”
(4) This AD does not adopt the “Remarks” section of EASA AD 2023-0105.
Although the service information referenced in EASA AD 2023-0105 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Sungmo Cho, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7241; email:
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2023-0105, dated May 23, 2023.
(ii) [Reserved]
(3) For EASA material identified in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Parkway, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D and Class E surface airspace for St. Petersburg-Clearwater International Airport, St. Petersburg, FL. This action would increase the radius and amend the verbiage in the Class D and Class E descriptions.
Comments must be received on or before January 25, 2024.
Send comments identified by FAA Docket No. [FAA-2023-2184] and Airspace Docket No. [23-ASO-49] using any of the following methods:
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FAA Order JO 7400.11H Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
Stephen Sutcavage, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-5649.
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 Class D and E airspace in St. Petersburg, FL. An airspace evaluation determined that this update is necessary to support IFR operations in the area.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the proposal's overall regulatory, aeronautical, economic, environmental, and energy-related aspects. 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 once 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 and 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 receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
An electronic copy of this document may be downloaded online at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see
Class D and Class E airspace designations are published in Paragraphs 5000, 6004, and, of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11H is publicly available as listed in the
FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA is proposing an amendment to 14 CFR part 71 to amend Class D airspace and Class E surface airspace for St. Petersburg- Clearwater International Airport, St. Petersburg, FL, as an airspace evaluation determined an update for this airport necessary. This action would increase the Class D radius of the airport to 4.9-miles (previously 4.2-miles). This action would also increase the Class E radius of the airport to 4.9 miles (previously 4.2 miles). This action would also replace Notice to Airmen with Notice to Air Missions in the appropriate airspace descriptions. Controlled airspace is necessary for the area's safety and management of instrument flight rules (IFR) operations.
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 Department of Transportation (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 the surface to and including 1,600 feet MSL within a 4.9-mile radius of St. Petersburg-Clearwater International Airport, excluding that portion within the Tampa International Airport, FL, Class B airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace is within a 4.9-mile radius of St. Petersburg-Clearwater International Airport, excluding that portion within the Tampa International Airport, FL, Class B airspace area. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be continuously published in the Chart Supplement.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D airspace, Class E airspace designated as an extension to a Class D surface, and Class E airspace extending upward from 700 feet above the surface area for Greenbrier Valley Airport, Lewisburg, WV. This action would amend verbiage in the descriptions, as well as adding additional extensions to the northeast and southwest of the airport.
Comments must be received on or before January 25, 2024.
Send comments identified by FAA Docket No. FAA-2023-2275 and Airspace Docket No. 23-AEA-223261 using any of the following methods:
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FAA Order JO 7400.11H Airspace Designations and Reporting Points and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class D and Class E airspace in Lewisburg, WV. An airspace evaluation determined that this update is necessary to support IFR operations in the area.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the proposal's overall regulatory, aeronautical, economic, environmental, and energy-related aspects. 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 once 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 all comments it receives in the docket and 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 receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible without incurring expense or delay. 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 Operations office (see
Class D and Class E airspace designations are published in Paragraphs 5000, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, Airspace Designations and Reporting Points, dated August 11, 2023, and effective September 15, 2023. These updates would be published subsequently in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11H is publicly available as listed in the
The FAA proposes an amendment to 14 CFR part 71 to amend Class D airspace and Class E airspace designated as an extension to a Class D surface area by:
• Removing the city name from the airport header.
• Replacing Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement.
• Removing the BUSHI NDB from the description, as it is unnecessary in describing the airspace.
• Add a northeast extension and amend the southwest extension.
The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface area by removing the BUSHI NDB from the description, as it is unnecessary in describing the airspace.
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 Department of Transportation (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 per FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” before 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 the surface to and including 4,000 feet MSL within a 4-mile radius of Greenbrier Valley Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be published continuously in the Chart Supplement.
That airspace extending upward from the surface within 2 miles on each side of the 216° bearing of Greenbrier Valley Airport, extending from the 4-mile radius of the airport to 6.8 miles southwest of the airport and from the 009° bearing of the airport to the 044° bearing of the airport, extending from the 4-mile radius to 6.8-miles northeast of the airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be published continuously in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 12-mile radius of Greenbrier Valley Airport and within 4.4 miles on each side of the 216° bearing of the airport, extending from the 12-mile radius to 16 miles southwest of the airport.
Consumer Product Safety Commission.
Extension of comment period.
On November 1, 2023, the Consumer Product Safety Commission (Commission or CPSC) published in the
The comment period for the proposed rule published November 1, 2023, at 88 FR 74909, is extended. Submit comments by February 1, 2024.
Submit comments on the proposed rule, identified by Docket No. CPSC-2011-0074, by any of the following methods:
On October 18, 2023, the Commission voted to publish an SNPR in the
On November 22, 2023, Susan Orenga, Executive Manager, Power Tool Institute, Inc. (PTI), submitted a request to the Commission to extend the comment period by 60 days. The Commission has considered this request to extend the comment period. To provide additional time for stakeholders to prepare comments for the rulemaking, the Commission will grant an extension of the comment period to February 1, 2024.
Consumer Product Safety Commission.
Extension of comment period.
The Consumer Product Safety Commission (Commission or CPSC) published in the
The comment period for the proposed rule published October 25, 2023, at 88 FR 73272, is extended. Submit comments by January 25, 2024.
Other written comments in response to the proposed rule, identified by Docket No. CPSC-2019-0020, may be submitted by any of the following methods:
Ronald A. Jordan, Directorate for Engineering Sciences, Mechanical Engineering, Consumer Product Safety Commission, National Product Testing and Evaluation Center, 5 Research Place, Rockville, MD 20850; telephone: 301-987-2219;
On October 11, 2023, the Commission voted to publish an NPR in the
The Commission has received two requests to extend the comment period. On November 3, 2023, the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) requested the public comment period be extended for an additional 60 days to February 26, 2024. On November 17, 2023, the American Gas Association (AGA), American Public Gas Association (APGA), and National Propane Gas Association
Department of Veterans Affairs.
Advance notice of proposed rulemaking.
The Department of Veterans Affairs (VA) is requesting public comment on the minimum property requirements (MPRs) for VA-guaranteed and direct loans. VA will consider information received in response to this advance notice of proposed rulemaking (ANPRM) in implementing the Improving Access to the VA Home Loan Benefit Act of 2022 (the Act). The Act requires VA to consider making changes to MPRs in prescribing updated regulatory requirements regarding appraisals. This ANPRM seeks public input to better understand areas for improvement in MPRs, including whether VA should consider adopting an approach that aligns with other industry-wide property standards already in existence.
Comments must be received on or before February 9, 2024.
Comments must be submitted through
Stephanie Li, Assistant Director for Regulations, Legislation, Engagement and Training, and Terry Rouch, Assistant Director for Loan Policy and Valuation, Loan Guaranty Service (26), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, 202-632-8862. (This is not a toll-free telephone number.)
VA must ensure that any property financed through a VA-guaranteed or direct loan is suitable for dwelling purposes.
In 38 CFR 36.4351 and 36.4527(c)(4), VA implemented the above noted statutory requirements, and in the Lenders Handbook, VA maintains a list of MPRs.
In addition to MPRs being a legal requirement, they also serve as a safeguarding function by exposing potential defects or maintenance issues that could have a significant effect on a property's value.
Section 3 of the Act
(1)(a) What are the advantages and/or disadvantages of VA MPRs noted in the above table as compared with similar requirements found in other Federal housing programs and conventional sources of financing (
(b) What policies or processes specific to VA MPRs could be streamlined, modified, or eliminated to enhance your experience with the VA home loan program?
(c) Please also provide any general suggestions for improvement or comments on the current VA MPRs.
(2)(a) Should VA replace the above noted VA MPRs with the property condition ratings outlined in Fannie Mae's
(b) If VA were to guarantee or make loans only on properties with a condition rating of C1, C2, C3, or C4, either based on the initial appraisal or following repairs, what would be the advantages and/or disadvantages for a borrower? For VA and taxpayers? For lenders and servicers?
(c) Could the below noted property condition ratings be used by VA in another way to determine MPRs?
By way of background, the UAD defines all fields required for an appraisal submission for specific appraisal forms (
VA appraisers utilize industry-standard forms to complete appraisals for VA-guaranteed loans. As such, VA already collects information regarding the UAD property condition rating as part of a VA appraisal.
(3) VA is interested in hearing how the current MPRs may be impacting certain groups of veteran borrowers, including those traditionally underserved in the housing finance industry. As VA considers changes to the MPRs, VA is exploring how best to ensure all eligible individuals for the VA home loan benefit are served.
(a) Please describe any needs of groups of veterans who might be underserved due to the current MPRs and how the VA home loan program could address those needs.
(b) Please describe any VA MPRs that might restrict utilization by any group(s) of veterans that are traditionally underserved in the housing finance industry. What changes could VA make to its MPRs to encourage more utilization by these groups?
(4) VA is interested in hearing how changes to the MPRs might affect lender participation which, in turn, could affect a veteran borrower's access to the benefit.
(a) As an interested stakeholder, in your opinion, what type(s) of MPRs are helpful in protecting veteran borrowers, lenders, servicers, and VA?
(b) What type(s) of changes related to MPRs would encourage more lenders
(5)(a) As an interested stakeholder, in your opinion, are waivers of certain MPRs necessary in the VA home loan buying process? If so, please explain.
(b) Would your answer change if VA adopted a more generalized approach to MPRs, such as the property condition ratings in the Fannie Mae Selling Guide or Freddie Mac Seller/Servicer Guide and UAD, versus the current MPRs?
Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rule is a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on December 4, 2023, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments are requested regarding: (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 the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding these information collections are best assured of having their full effect if received by January 10, 2024. Written comments and recommendations for the proposed information collection should be submitted, identified by docket number 0535-0264, within 30 days of the publication of this notice by any of the following methods:
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An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Revisions to burden are needed due to the removal of surveys funded under cooperative agreements, changes in the size of the target population, sample design, and minor changes in questionnaire design.
Farm Service Agency.
30-Day notice of submission of information collection approval from the Office of Management and Budget and request for comments.
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Department of Agriculture (USDA), Farm Service Agency (FSA) has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act (PRA).
Comments must be submitted by January 10, 2024.
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: the target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received no comments in response to the 60-day notice published in the
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by January 10, 2024 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The purpose of CYFAR SCP funding is to improve the quality and quantity of comprehensive community-based programs for at-risk children, youth, and families supported by the Cooperative Extension System. Collaboration across disciplines, program areas, and geographic lines, as well as a holistic approach that views the individual in the context of the family and community, are central to Sustainable Community Projects. CYFAR grants are awarded only to 1862, 1890, and 1994 Land Grant institutions through a competitive application process. Awards are made annually, for five year terms. There are up to 50 grantees at any given time.
Forest Service, Agriculture (USDA).
Notice.
The Tahoe National Forest is proposing to establish a new recreation fee site and a new annual recreation pass. Recreation fee revenues collected at the new recreation fee site would be used for operation, maintenance, and improvement of the new site. Recreation fee revenues collected from the new annual pass would be used for operation, maintenance, and improvement of the standard amenity recreation fee sites listed in the
If approved, the new recreation fee and new annual recreation pass would be implemented no earlier than six months following the publication of this notice in the
Tahoe National Forest, 631 Coyote Street, Nevada City, CA 95959.
Mary Sullivan, Forest Recreation Program Manager, 530-478-6298 or
The Federal Lands Recreation Enhancement Act (16 U.S.C. 6803(b)) requires the Forest Service to publish a six-month advance notice in the
A new expanded amenity recreation fee of $75 per night would be charged for rental of Grouse Ridge and Sardine Peak Lookouts. A new Tahoe National Forest annual pass of $40 per vehicle per year would be honored for the existing standard amenity recreation fees charged at the French Meadows, McGuire, and Sugar Pine boating sites and at the Manzanita Picnic Area. The America the Beautiful—the National Parks and Federal Recreational Lands Pass would continue to be honored at these standard amenity recreation fee sites.
Expenditures from recreation fee revenues collected at the new recreation fee site as well as from the annual recreation pass would enhance recreation opportunities, improve customer service, and address maintenance needs. Once public involvement is complete, the new recreation fee and new annual recreation pass will be reviewed by a Resource Advisory Committee prior to a final decision and implementation. Reservations for Grouse Ridge and Sardine Peak Lookouts could be made online at
Commission on Civil Rights.
Announcement of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Iowa Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold public meetings via Zoom on Thursday, January 18, 2024 and Thursday, February 15, 2024 from 3:00 p.m.-4:00 p.m. Central Time. The purpose of these meetings is for the Committee to begin planning a briefing series to study the barriers to mental and behavioral health access for K-12 students.
The meetings will be held via Zoom.
Ana Fortes, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Corrine Sanders, Support Specialist, at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Ana Fortes at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Utah Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a public meeting via Zoom at 1:00 p.m. MT on Thursday, January 11, 2024. The purpose of the meeting is to discuss the Committee's project regarding the civil rights implications of disparate outcomes in Utah's K-12 education system.
Thursday, January 11, 2024, from 1:00 p.m.-2:00 p.m. Mountain Time
The meeting will be held via Zoom.
David Barreras, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Liliana Schiller, Support Services Specialist, at
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Commission on Civil Rights.
Notice of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Wyoming Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Zoom at 1:00 p.m. MT on Wednesday, February 7, 2024. The purpose of this meeting is to discuss the testimony received on the topic of housing discrimination in the state.
Wednesday, February 7, 2024, from 1:00 p.m.-2:30 p.m. Mountain Time.
The meeting will be held via Zoom.
Kayla Fajota, Designated Federal Officer, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email Liliana Schiller, Support Services Specialist, at
Members of the public are entitled to submit written comments; the
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meetings will be available via
Commission on Civil Rights.
Announcement of public meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Guam Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Zoom at 9:30 a.m. ChST on Thursday, January 18, 2024 (6:30 p.m. ET on Wednesday, January 17, 2024). The purpose of this meeting is to discuss the Committee's project,
Thursday, January 18, 2024, from 9:30 a.m.-11:00 a.m. ChST (Wednesday, January 17, 2024, from 6:30 p.m.-8:00 p.m. ET).
The meeting will be held via Zoom.
Kayla Fajota, DFO, at
This committee meeting is available to the public through the registration link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Closed captioning will be available for individuals who are deaf, hard of hearing, or who have certain cognitive or learning impairments. To request additional accommodations, please email
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to David Mussatt at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
Economic Development Administration, Department of Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The Economic Development Administration (EDA) proposes to extend Form ED-209, Revolving Loan Fund (RLF) Financial Report, to continue collecting limited performance information from EDA RLF award recipients. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before February 9, 2024.
Interested persons are invited to submit written comments by mail to Mitchell Harrison, Program Analyst, Performance and National Programs Division, Economic Development Administration, U.S. Department of Commerce, via email to
Requests for additional information or specific questions related to collection activities should be directed to Mitchell
Guided by the basic principle that sustainable economic development should be locally driven, the Economic Development Administration (EDA) works directly with communities and regions to help them build the capacity for economic development based on local business conditions and needs.
The EDA Revolving Loan Fund (RLF) Program, authorized under section 209 of the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3149), has served as an important pillar of EDA investment programs since the establishment of the RLF Program in 1975. The purpose of the RLF Program is to provide regions with a flexible and continuing source of capital, to be used with other economic development tools, for creating and retaining jobs and inducing private investment that will contribute to long-term economic stability and growth. EDA provides RLF grants to eligible recipients, which include State and local governments, Indian Tribes, and non-profit organizations, to operate a lending program that offers loans with flexible repayment terms, primarily to small businesses in distressed communities that are unable to obtain traditional bank financing. These loans enable small businesses to expand and lead to new employment opportunities that pay competitive wages and benefits.
A unique feature of the RLF Program is that the federal interest in RLF awards does not terminate but may be released by EDA seven years after completion of the grant disbursement. EDA RLF regulations therefore require RLF recipients to submit to EDA RLF Financial Report, Form ED-209, which collects limited performance information for RLF awards (13 CFR 307.14(a)). EDA currently requires Form ED-209 to be submitted on an annual basis for high-performing RLFs and on a semi-annual basis for other RLFs.
Through implementation of the Reinvigorating Lending for the Future Act (RLF Act), EDA released its federal interest in a substantial portion of the RLF awards that were previously required to submit Form ED-209. As a result, the number of respondents required to submit Form ED-209 will decrease. Although Form ED-209 is being extended without change, and the estimated amount of time required to complete Form ED-209 remains unchanged at three hours, the estimated annual burden hours for Form ED-209 is decreasing because of the decreased number of RLF awards and respondents required to complete Form ED-209.
RLF recipients must complete and submit the information collected by Form ED-209 online through a Salesforce application (“RLF Portal”) for Revolving Loan Fund (RLF) reporting that is accessible at
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce preliminarily determines that imports of R-410A, completed in the Republic of Turkey (Turkey) using People's Republic of China (China)-origin components, and exported from Turkey, as specified below, are circumventing the antidumping duty (AD) order on hydrofluorocarbon (HFC) blends from China.
Applicable December 11, 2023.
Paul Senoyuit, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6106.
On August 19, 2016, Commerce published in the
The merchandise covered by the
This circumvention inquiry covers R-410A, completed in Turkey using China-origin HFC components and subsequently exported from Turkey to the United States (inquiry merchandise).
Commerce is conducting this circumvention inquiry in accordance with section 781(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.226. For a complete description of the methodology underlying this circumvention inquiry,
As detailed in the Preliminary Decision Memorandum, and the “Use of Adverse Facts Available (AFA)” section, Commerce preliminarily determines that R-410A completed in Turkey using HFC components from China, that is subsequently exported from Turkey to the United States, is circumventing the
Pursuant to section 776(a) of the Act, if the necessary information is not available on the record, or an interested party withholds requested information, fails to provide requested information by the deadline or in the form and manner requested, or significantly impedes a proceeding, Commerce shall use the facts otherwise available in reaching the applicable determination. Moreover, pursuant to section 776(b) of the Act, Commerce may use inferences adverse to the interests of an interested party in selecting from among the facts otherwise available if the party fails to cooperate by not acting to the best of its ability to provide requested information.
Commerce requested information from Cantas and ICE. In these initial questionnaires, Commerce explained that, if the company to which Commerce issued the questionnaire fails to respond to the questionnaire, or fails to provide the requested information, Commerce may find that the company failed to cooperate by not acting to the best of its ability to comply with the request for information, and may use an inference that is adverse to the company's interests in selecting from the facts otherwise available. Cantas, one of the mandatory respondents in Turkey, received, but failed to respond to, Commerce's questionnaire.
Therefore, we preliminarily find that Cantas failed to provide requested information by the deadline or in the form and manner requested, and significantly impeded this inquiry. Moreover, we find that these companies failed to cooperate to the best of its ability to provide the requested information because it did not provide a response to Commerce's initial questionnaires. Consequently, we used adverse inferences with respect to Cantas in selecting from among the facts otherwise available on the record, pursuant to sections 776(a) and (b) of the Act. For details regarding the adverse facts available used in these preliminary determinations,
As detailed in the Preliminary Decision Memorandum, based on AFA, we preliminarily determine that Cantas exported inquiry merchandise and that U.S. entries of that merchandise are circumventing the
ICE timely responded to Commerce's circumvention questionnaire, in which it reported that it did not sell or export the merchandise covered by the circumvention inquiry to the United States during the period of inquiry.
Based on the preliminary affirmative country-wide determination of circumvention for Turkey, in accordance with 19 CFR 351.226(l)(2), we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation and require a cash deposit of estimated duties on unliquidated entries of R-410A, completed in Turkey using China-origin components, that were entered, or withdrawn from warehouse, for consumption on or after July 7, 2023, the date of publication of the initiation of this circumvention inquiry in the
R-410A produced in Turkey from HFC blends that is not of China origin is not subject to this inquiry. Therefore, cash deposits are not required for such merchandise under the
Commerce has established the following third-country case number for Turkey in the Automated Commercial Environment (ACE) for such entries: A-489-400-000. For Cantas, which will not be permitted to certify that its merchandise was not produced from China-origin HFC components, Commerce will direct CBP, for all entries of R-410A from Turkey produced or exported by Cantas, to suspend liquidation and require a cash deposit at the rate established for the China-wide entity,
Where no certification is provided for an entry, and the
Entries for which the importer and exporter have met the certification requirements described below and in Appendix II to this notice will not be subject to suspension of liquidation, or the cash deposit requirements described above. Failure to comply with the applicable requisite certification requirements may result in the merchandise being subject to duties.
To administer the preliminary affirmative country-wide determination of circumvention, Commerce established importer and exporter certifications, which allow companies to certify that specific entries of R-410A from Turkey are not subject to suspension of liquidation or the collection of cash deposits pursuant to this preliminary affirmative country-wide determination of circumvention because the merchandise is not made with China-origin components (
Because Cantas was non-cooperative, it is not currently eligible to use the certification described above.
Importers and exporters that claim that the entry of R-410A from Turkey is not subject to suspension of liquidation or the collection of cash deposits because the merchandise is not made with China-origin components must complete the applicable certification and meet the certification and documentation requirements described below, as well as the requirements identified in the applicable certification.
Importers are required to complete and maintain the applicable importer certification, and maintain a copy of the applicable exporter certification, and retain all supporting documentation for both certifications. With the exception of the entries described below, the importer certification must be completed, signed, and dated by the time the entry summary is filed for the relevant entry. The importer, or the importer's agent, must submit both the importer's certification and the exporter's certification to CBP as part of the entry process by uploading them into the document imaging system (DIS) in ACE. Where the importer uses a broker to facilitate the entry process, the importer should obtain the entry summary number from the broker. Agents of the importer, such as brokers, however, are not permitted to certify on behalf of the importer.
Exporters are required to complete and maintain the applicable exporter certification and provide the importer with a copy of that certification and all supporting documentation (
Additionally, the claims made in the certifications and any supporting documentation are subject to verification by Commerce and/or CBP. Importers and exporters are required to maintain the certifications and supporting documentation until the later of: (1) the date that is five years after the latest entry date of the entries covered by the certification; or (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries.
For all R-410A from Turkey that was entered, or withdrawn from warehouse, for consumption during the period July 7, 2023 (the date of initiation of this circumvention inquiry), through the date of publication of the preliminary determination in the
For unliquidated entries (and entries for which liquidation has not become final) of R-410A from Turkey that were declared as non-AD type entries (
If it is determined that an importer and/or exporter has not met the certification and/or related documentation requirements for certain entries, Commerce intends to instruct CBP to suspend, pursuant to this preliminary affirmative country-wide determination of circumvention and the
Interested parties may comment on these certification requirements, and on the certification language contained in Appendix II to this notice in their case briefs.
As provided in 19 CFR 351.307, Commerce may verify information relied upon in making its final determination.
Case briefs or other written comments should be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the verification report is issued. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the date for filing case briefs.
As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged interested parties to provide an executive summary of their brief that should be limited to five pages total, including footnotes. In these circumvention inquiries, we instead request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs.
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, U.S. Department of Commerce, within 30 days after the date of publication of this notice in the
Consistent with section 781(e) of the Act, Commerce will notify the U.S. International Trade Commission (ITC) of this preliminary determination to include the merchandise subject to these circumvention inquiries within the
Commerce is issuing and publishing this determination in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(1).
I hereby certify that:
A. {IMPORTING COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF IMPORTING COMPANY}, located at {ADDRESS of IMPORTING COMPANY};
B. I have direct personal knowledge of the facts regarding the importation into the Customs territory of the United States of the hydrofluorocarbon (HFC) blend R-410A produced in Turkey that entered under the entry number(s) identified below, and which are covered by this certification. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, the importer should have direct personal knowledge of the importation of the product, including the exporter's and/or foreign seller's identity and location;
C. If the importer is acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
The R-410A covered by this certification were imported by {NAME OF IMPORTING COMPANY} on behalf of {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER}.
If the importer is not acting on behalf of the first U.S. customer, include the following sentence as paragraph C of this certification:
{NAME OF IMPORTING COMPANY} is not acting on behalf of the first U.S. customer.
D. The R-410A covered by this certification was shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM THE MERCHANDISE WAS FIRST SHIPPED} located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED}.
E. I have personal knowledge of the facts regarding the production of the imported products covered by this certification. “Personal knowledge” includes facts obtained from another party, (
F. This certification applies to the following entries (repeat this block as many times as necessary):
G. The R-410A covered by this certification do not contain HFC components (
H. I understand that {NAME OF IMPORTING COMPANY} is required to maintain a copy of this certification and sufficient documentation supporting this certification (
I. I understand that {IMPORTING COMPANY} is required to maintain a copy of the exporter's certification (attesting to the production and/or exportation of the imported merchandise identified above), and any supporting documentation provided to the importer by the exporter, until the later of: (1) the date that is five years after the date of the latest entry covered by the certification or; (2) the date that is three years after the conclusion of any litigation in United States courts regarding such entries;
J. I understand that {IMPORTING COMPANY} is required to submit a copy of the importer and exporter certifications as part of the entry summary by uploading them into the document imaging system (DIS) in ACE, and to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with the importer certification, and any supporting documentation, and a copy of the exporter's certification, and any supporting documentation provided to the importer by the exporter, upon request of either agency;
K. I understand that the claims made herein, and the substantiating documentation, are subject to verification by CBP and/or Commerce;
L. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of liquidation of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the cash deposits determined by Commerce; and
(iii) the importer no longer being allowed to participate in the certification process.
M. I understand that agents of the importer, such as brokers, are not permitted to make this certification;
N. This certification was completed and signed on, or prior to, the date of the entry summary if the entry date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
O. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make materially false statements to the U.S. government.
The party that made the sale to the United States should fill out the exporter certification.
I hereby certify that:
A. My name is {COMPANY OFFICIAL'S NAME} and I am an official of {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES}; located at {ADDRESS OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES};
B. I have direct personal knowledge of the facts regarding the production and exportation of the hydrofluorocarbon (HFC) blend R-410A for which sales are identified below. “Direct personal knowledge” refers to facts the certifying party is expected to have in its own records. For example, an exporter should have direct personal knowledge of the producer's identity and location.
C. The R-410A, and the individual components thereof, covered this certification were produced by {NAME OF PRODUCING COMPANY}, located at {ADDRESS OF shipped to {NAME OF PARTY IN THE UNITED STATES TO WHOM MERCHANDISE WAS FIRST SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED};
D. The R-410A produced in Turkey do not contain HFC components (
E. This certification applies to the following sales to {NAME OF U.S. CUSTOMER}, located at {ADDRESS OF U.S. CUSTOMER} (repeat this block as many times as necessary):
F. The R-410A covered by this certification was shipped to {NAME OF U.S. PARTY TO WHOM MERCHANDISE WAS SHIPPED}, located at {U.S. ADDRESS TO WHICH MERCHANDISE WAS SHIPPED};
G. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES required to maintain a copy of this certification and sufficient documentation supporting this certification (
H. I understand that {NAME OF FOREIGN COMPANY THAT MADE THE SALE TO THE UNITED STATES} is required to provide the U.S. importer with a copy of this certification and is required to provide U.S. Customs and Border Protection (CBP) and/or the U.S. Department of Commerce (Commerce) with this certification, and any supporting documents, upon request of either agency;
I. I understand that the claims made herein, and the substantiating documentation are subject to verification by CBP and/or Commerce;
J. I understand that failure to maintain the required certification and supporting documentation, or failure to substantiate the claims made herein, or not allowing CBP and/or Commerce to verify the claims made herein, may result in a
(i) suspension of all unliquidated entries (and entries for which liquidation has not become final) for which these requirements were not met;
(ii) the importer being required to post the cash deposits determined by Commerce; and
(iii) the seller/exporter no longer being allowed to participate in the certification process.
K. I understand that agents of the seller/exporter, such as freight forwarding companies or brokers, are not permitted to make this certification.
L. This certification was completed and signed, and a copy of the certification was provided to the importer, on, or prior to, the date of shipment if the shipment date is more than 14 days after the date of publication of the notice of Commerce's preliminary determination of circumvention in the
M. I am aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make material false statements to the U.S. government.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily determines that imports of R-410A and R-407C, completed in Malaysia using the People's Republic of China (China)-origin components, and exported from Malaysia, as specified below, are circumventing the antidumping duty (AD) order on hydrofluorocarbon blends (HFC blends) from China.
Applicable December 11, 2023.
Jerry Xiao, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2273.
On August 19, 2016, Commerce published in the
The merchandise covered by the
This circumvention inquiry covers R-410A and R-407C, completed in Malaysia using China-origin HFC components and subsequently exported from Malaysia to the United States.
Commerce is conducting this circumvention inquiry in accordance with section 781(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.226. For a complete description of the methodology underlying this circumvention inquiry,
As detailed in the Preliminary Decision Memorandum, and based on the “Use of Adverse Facts Available (AFA)” section, Commerce preliminarily determines that R-410A and R-407C completed in Malaysia using HFC components from China, that are subsequently exported from Malaysia to the United States, are circumventing the
Pursuant to section 776(a) of the Act, if the necessary information is not available on the record, or an interested party withholds requested information, fails to provide requested information by the deadline or in the form and manner requested, or significantly impedes a proceeding, Commerce shall use the facts otherwise available in reaching the applicable determination. Moreover, pursuant to section 776(b) of the Act, Commerce may use inferences adverse to the interests of an interested party in selecting from among the facts otherwise available if the party fails to cooperate by not acting to the best of its ability to provide requested information.
We requested information from Juara. In the Initial Questionnaire, Commerce explained that, if the company to which Commerce issued the questionnaire fails to respond to the questionnaire, or fails to provide the requested information, Commerce may find that the company failed to cooperate by not acting to the best of its ability to comply with the
Therefore, we preliminarily find that Juara failed to provide requested information by the deadline or in the form and manner requested, and significantly impeded this inquiry. Moreover, we find that Juara failed to cooperate to the best of its ability to provide the requested information because it did not provide a response to Commerce's initial questionnaire. Consequently, we used adverse inferences with respect to Juara in selecting from among the facts otherwise available on the record, pursuant to sections 776(a) and (b) of the Act. For details regarding the AFA used in this preliminary determination,
As detailed in the Preliminary Decision Memorandum, based on AFA, we preliminarily determine that Juara exported inquiry merchandise and that U.S. entries of that merchandise are circumventing the
Based on the preliminary affirmative country-wide determination of circumvention for Malaysia in accordance with 19 CFR 351.226(l)(2), we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation and require a cash deposit of estimated duties on unliquidated entries of R-410A and R0407C, completed in Malaysia using China-origin components, that were entered, or withdrawn from warehouse, for consumption on or after July 7, 2023, the date of publication of the initiation of this circumvention inquiry in the
Commerce has established the following third-country case number for Malaysia in the Automated Commercial Environment (ACE) for such entries: A-557-300-000. For Juara, Commerce will direct CBP, for all entries of R-410A or R-407C from Malaysia produced or exported by Juara, to suspend liquidation and require a cash deposit at the rate established for the China-wide entity,
R-410A and R-407C produced in Malaysia that is not from China-origin HFC blends is not subject to this inquiry. Therefore, cash deposits are not required for such merchandise under the
At this time, Commerce has not included a certification requirement. We invite interested parties to comment on this matter.
Interested parties may submit case briefs to Commerce no later than 14 days after the date of publication of this notice.
As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged interested parties to provide an executive summary of their brief that should be limited to five pages total, including footnotes. In these circumvention inquiries, we instead request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs.
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, U.S. Department of Commerce, within 30 days after the date of publication of this notice in the
Consistent with section 781(e) of the Act, Commerce will notify the U.S. International Trade Commission (ITC) of this preliminary determination to include the merchandise subject to this circumvention inquiry within the
Commerce is issuing and publishing this determination in accordance with section 781(b) of the Act and 19 CFR 351.226(g)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines Oman Fasteners, LLC (Oman Fasteners), the sole producer and exporter subject to this administrative review, made sales of certain steel nails (steel nails) from the Sultanate of Oman (Oman) in the United States at prices below normal value (NV) during the period of review (POR), July 1, 2021, through June 30, 2022.
Applicable December 11, 2023.
Dakota Potts, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0223.
On August 7, 2023, Commerce published the
The product covered by this
All issues raised in the parties' case and rebuttal briefs are addressed in the Issues and Decision Memorandum and are listed in the appendix 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 comments received from interested parties regarding our
The Tariff Act of 1930, as amended (the Act), and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, when calculating margins for non-selected respondents, Commerce looks to section 735(c)(5) of the Act for guidance, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for companies which we did not examine in an administrative review. When the rates for individually examined companies are all zero,
As a result of this review, we determine the following estimated weighted-average dumping margins exist for the POR:
Commerce intends to disclose the calculations performed for these final results within five days of the date of publication of this notice in the
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's “automatic assessment” practice will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise it sold to the intermediary (
The following 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 final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for the companies listed above will be equal to the weighted-average dumping margin that is established in the “Final Results of Review”; (2) for previously investigated or reviewed companies not subject to this review, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which the company participated; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of the proceeding for the producer of the merchandise; and (4) the cash deposit rate for all other producers and exporters will continue to be 9.10 percent
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during 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.
This notice also serves as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), 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 the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(5) and 19 CFR 351.213(h)(1).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permits, permit amendments, and permit modifications.
Notice is hereby given that permits, permit amendments, and permit modifications have been issued to the following entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), as applicable.
The permits and related documents are available for review upon written request via email to
Amy Hapeman (Permit No. 23639-02), Carrie Hubard (Permit Nos. 21678-01 and 27361), Shasta McClenahan, Ph.D. (Permit Nos. 21938-03 and 27426), Erin Markin, Ph.D. (Permit No. 20528-05), and Malcolm Mohead (Permit No. 23096-01); at (301) 427-8401.
Notices were published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, as applicable, issuance of these permit was based on a finding that such permits: (1) were applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) are consistent with the purposes and policies set forth in Section 2 of the ESA.
9:30 a.m. EST, Wednesday, December 13, 2023.
CFTC Headquarters Conference Center, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC.
Open.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) will hold this meeting to consider the following matters:
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•
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• Amended Application of Bitnomial Clearinghouse, LLC for Registration as a Derivatives Clearing Organization; and
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The agenda for this meeting will be available to the public and posted on the Commission's website at
In the event that the time, date, or place of this meeting changes, an announcement of the change, along with the new time, date, or place of the meeting, will be posted on the Commission's website.
Christopher Kirkpatrick, Secretary of the Commission, 202-418-5964.
Joint Service Committee on Military Justice (JSC), Department of Defense (DoD).
Publication of supplementary materials accompanying the Manual for Courts-Martial (MCM), United States (2024 ed.).
The JSC hereby announces the publication of the supplementary materials accompanying the MCM. These supplemental materials have been approved by the JSC and the General Counsel of the DoD and shall be applied in conjunction with the rule with which they are associated. The supplemental materials are separated into 5 “TABs” (alternatively called “ANNEXES”), TABs A through E.
The supplemental materials in TABs A, C, D, and E should be consulted on or after December 27, 2023, when utilizing the MCM (2024 edition). The amendments to the Discussion sections of Parts II and III of the MCM, found in TAB B, are effective insofar as the rules they supplement are effective. Refer to the text of E.O. 14103 (July 28, 2023) for further information on the effective date of the rules.
Commander Anthony M. DeStefano, U.S. Coast Guard, Executive Secretary, JSC, (202) 372-3807 (voice),
The supplementary materials, as amended by the President in Executive Order (E.O.) 12473 (April 13, 1984) to present, including Executive Order (E.O.) 14062 (January 26, 2022) and E.O. 14103 (July 28, 2023) [hereinafter “MCM (2024 ed.)”], are available on the internet at
Federal Student Aid (FSA), 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 January 10, 2024.
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 Beth Grebeldinger, 202-377-4018.
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.
Federal Student Aid (FSA), 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 February 9, 2024.
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 Beth Grebeldinger, 202-377-4018.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The Higher Education Opportunity Act, Public Law 110-315, added provisions to the Higher Education Act, as amended (HEA) in sections 760 and 766 that enable eligible students with intellectual disabilities to receive Federal Pell Grant (Pell), Supplemental Educational Opportunity Grant (FSEOG), and Federal Work Study (FWS) funds if they are enrolled in an approved program. This collection provides the method for institutions to report the number of Pell Grant, SEOG and FWS funds used for such a purpose.
Department of Energy.
Notice of request for comments.
The Department of Energy (DOE) invites public comment on a revision of currently approved collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995.
Comments regarding this proposed information collection must be received on or before February 9, 2024. If you anticipate any difficulty in submitting comments within that period, contact the person listed in the
Written comments may be sent to Kathryn Clarke, U.S. Department of Energy, Office of Energy Jobs, 1000 Independence Avenue SW, Washington, DC 20585 or by
Kathryn Clarke,
Comments are invited on: (a) Whether the extended collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) 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; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
This information collection request contains:
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(2)
(3)
(4)
(5)
(6)
(7)
(8)
This document of the Department of Energy was signed on December 5, 2023, by Betony Jones, Director, Office of Energy Jobs, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), “Air Emission Standards for Tanks, Surface Impoundments and Containers,” EPA ICR No. 1593.12, OMB Control No. 2060-0318 to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before February 9, 2024.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2023-0584, at
Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0453;
This is a proposed extension of the ICR, which is currently approved through April 30, 2024. 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.
This notice allows 60 days for public comments. Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate forms of information technology. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another
Federal Communications Commission.
Notice of availability.
The Office of General Counsel announces that the Federal Communications Commission (FCC) has posted on fcc.gov (
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Wade Lindsay, Office of General Counsel, at
The Office of General Counsel announces posting of plain-language summaries. Effective July 25, 2023, the Providing Accountability Through Transparency Act of 2023, Public Law 118-9, amended section 553(b) of the Administrative Procedure Act by adding paragraph (4). New section 553(b)(4) requires each government agency, when it is required to publish notice of a rule making in the
To facilitate public engagement with the FCC's rulemakings, each NPRM, FNPRM, and PN the FCC publishes in the Proposed Rules section of the
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Notice of renewal.
The Federal Communications Commission (FCC or Commission) hereby announces that the charter of the Task Force for Reviewing the Connectivity and Technology Needs of Precision Agriculture in the United States (the Task Force) has been renewed for a period expiring on January 1, 2025, pursuant to the Federal Advisory Committee Act (FACA) and after consultation with the Committee Management Secretariat, General Services Administration.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Christi Shewman, Designated Federal Officer, Federal Communications Commission, Wireline Competition Bureau, (202) 418-0646, or email:
The Chairwoman of the Commission, as required by Section 12511 of the Agriculture Improvement Act of 2018, Public Law 115-334, 132 Stat 4490, has taken appropriate steps to renew the Task Force, which Congress has deemed necessary and in the public interest. After consultation with the General Services Administration, the Commission renewed the charter on November 29, 2023, providing the Task Force with authorization to operate until January 1, 2025.
In consultation with the Secretary of Agriculture (Secretary), or a designee of the Secretary, and in collaboration with public and private stakeholders in the agriculture and technology fields, the purpose of the Task Force is to: identify and measure current gaps in the availability of broadband internet access service on agricultural land; develop policy recommendations to promote the rapid, expanded deployment of broadband internet access service on unserved agricultural land, with a goal of achieving reliable capabilities on 95 percent of agricultural land in the United States by 2025; promote effective policy and regulatory solutions that encourage the adoption of broadband internet access service on farms and ranches and promote precision agriculture; recommend specific new rules or amendments to existing rules of the Commission that the Commission should issue to achieve the goals and purposes of the policy recommendations described in the second item in this list; recommend specific steps that the Commission should take to obtain reliable and standardized data measurements of the availability of broadband internet access service as may be necessary to target funding support, from future programs of the Commission dedicated to the deployment of broadband internet access service, to unserved agricultural land in need of broadband internet access service; and recommend specific steps that the Commission should consider to ensure that the expertise of the Secretary and available farm data are reflected in future programs of the Commission dedicated to the infrastructure deployment of broadband internet access service and to direct available funding to unserved agricultural land where needed.
In addition, annually, the Task Force will submit to the Chairwoman of the Commission a report, which shall be made public, that details: the status of fixed and mobile broadband internet access service coverage of agricultural land; the projected future connectivity needs of agricultural operations, farmers, and ranchers; and the steps being taken to accurately measure the availability of broadband internet access service on agricultural land and the limitations of current, as of the date of the report, measurement processes.
The Task Force is organized under and operates in accordance with, the provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C. app. 2). The Task Force is solely advisory in nature. Consistent with FACA and its requirements, each meeting of the Task Force will be open to the public unless otherwise noticed. A notice of each meeting will be published in the
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the Reports of Foreign Banking Organizations (FR Y-7N, FR Y-7NS, and FR Y-7Q; OMB No. 7100-0125).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System,
Office of Management and Budget (OMB) Desk Officer for the Federal Reserve Board, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. The OMB inventory, as well as copies of the PRA Submission, supporting statements, and approved collection of information instrument(s) are available at
The Federal Reserve uses the data collected on the FR Y-7N, FR Y-7NS, and FR Y-7Q to assess an FBO's ability to be a continuing source of strength to its U.S. operations and to determine compliance with applicable U.S. laws and regulations.
The Board received a joint comment from two trade associations and a comment from an individual banking organization, as well as additional feedback through industry outreach. The commenters did not support the proposed revisions.
Commenters expressed concern that the proposed line item for top-tier FBOs to report total combined U.S. assets net of intercompany balances and transactions on a quarterly average using daily data would impose significant operational costs on FBOs that do not currently perform the calculation. Specifically, commenters recommended instead to require the line item only for FBOs that file the FR Y-15 and are in Categories II and III (and potentially Category IV) of the enhanced prudential standards applicable to FBOs under Regulation YY. Commenters also recommended a longer implementation period and allowing averaging for the line item to use monthly data when calculating the averages.
In response to the comments received, the Board has decided to implement the new line item 6(b) as an average combined U.S. operations asset calculation using monthly data. The calculation would consist of providing the average of the three month-end balances within the quarter. Annual filers would provide the average of the three month-end balances of the fourth quarter of that filing year. Respondents that currently file the FR Y-15 would have this line item automatically retrieved to the FR Y-7Q from the FR Y-15. The Board believes the modified
Commenters also recommended retaining the option for FBOs to file the FR Y-7Q on a fiscal year basis. Commenters stated that FBOs that follow a non-calendar fiscal year base their home country reporting requirements, internal and external financial reporting, and management information systems around the 90-day filing deadline for the FR Y-7Q.
In response to the comments received, the Board will move forward with a modified approach so that
The Board has also decided to retain line item 8, as-of financial date, in Part 1A and line item 6, as-of financial date, in Part 2, in order to continue the use of the fiscal filing option, which will only apply to non-U.S. asset line items. FR Y-7Q respondents that are required to file the FR Y-15 would have already submitted total combined U.S. assets net of intercompany balances and transactions, given that the FR Y-15 is due 50 calendar days after March 31, June 30 and September 30, and 65 days after December 31. Individual respondents that believe the information they are required to submit under the FR Y-7Q is nonpublic commercial or financial information, which is both customarily and treated as private by the respondent, may request confidential treatment of such information under exemption 4 of the FOIA.
Finally, commenters expressed concern about shortening the filing deadline for the FR Y-7Q because firms may need more than 30 days to provide capital adequacy information to their home country supervisor before they report it on the FR Y-7Q. Commenters stated that modifying home country reporting frameworks to file the information on an accelerated timetable based on the FR Y-7Q would require significant resources.
In response to the comments received, the Board has modified the proposal to stagger implementation filing deadlines. The modified proposal would be implemented in two phases. Under phase one, effective as of December 31, 2023, all FR Y-7Q filers that file the FR Y-15 would report no later than 70 days after the report date. The remaining filers would have 90 days to file the FR Y-7Q after calendar end. Under phase two, effective as of December 31, 2024, all remaining FR Y-7Q filers would report no later than 70 days after the report date. Moving this implementation date to December 31, 2024, from the originally proposed December 31, 2022, would allow additional time for respondents to implement the necessary system enhancements. Further, fiscal filers with a report date after the calendar quarter-end periods (
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Characteristics of Cases of Priority Fungal Diseases. These case report forms (CRFs) collect information on patient demographics, underlying conditions, diagnosis, treatments, healthcare utilization, and outcomes of patients with coccidioidomycosis, histoplasmosis, blastomycosis,
CDC must receive written comments on or before February 9, 2024.
You may submit comments, identified by Docket No. CDC-2024-0098 by either of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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;
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,
5. Assess information collection costs.
Characteristics of Cases of Priority Fungal Diseases (OMB Control No. 0920-1385, Exp. 3/31/2026)—Revision—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Fungal diseases cause substantial illness, ranging from mild infection to severe or life-threatening invasive disease. They also constitute a considerable financial burden on patients and healthcare systems. Awareness of fungal diseases is low, and data collection has historically been limited in size, scope, and coordination, which has hindered our understanding of these diseases. Detailed epidemiologic and clinical data are critical to inform appropriate public health responses.
We plan to enhance surveillance of high priority fungal diseases across the United States to better characterize factors such as disease burden, geographic scope, patient risk factors, health disparities, healthcare utilization, outcomes, and emerging trends. This project will serve as a Revision of the information collections project: Triazole-resistant Aspergillus fumigatus Case Report Form (CRF). The Revision will expand the number of fungal diseases for which data may be collected. In addition to triazole-resistant
We plan to use standardized CRFs to collect public health surveillance data for cases of these diseases regarding demographics (
CDC requests OMB approval for an estimated 1,138 annual burden hours. There is no cost to respondents other than their time to participate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled DP-23-0002 Healthy Schools Evaluation. The project
CDC must receive written comments on or before February 9, 2024.
You may submit comments, identified by Docket No. CDC-2023-0097 by either of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7118; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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;
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,
5. Assess information collection costs.
CDC-RFA-DP-23-0002 Healthy Schools Program Evaluation—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
CDC awarded funds through cooperative agreement DP23-0002 (2302 Program) to 20 funding recipients (States, universities, and a Tribal nation) to improve health, academic achievement, and well-being of students in K-12 schools. A portion of the funding within each State is allocated to one priority local education agency (LEA) and its corresponding schools to support the implementation of policies, practices, and programs to increase physical activity, healthy dietary behaviors, and management of chronic health conditions among students. CDC is conducting a mixed-methods multi-level evaluation of the 2302 Program and associated outcomes. Evaluation findings will allow CDC to help recipients improve their programs as they progress over the five-year funding period. A CDC evaluation contractor will collect information from relevant funded recipients, priority LEAs, schools, and students. Program monitoring information will be collected from recipients via a monthly reporting tool. Descriptions of the implementation of the program's two strategies and nine activities will be collected in years two and four via semi-structured, virtual key informant interviews with program leaders among funded recipients and their priority LEA colleagues to understand successes, barriers, and lessons learned. Additionally, two annual questionnaires will be distributed either digitally (web-based) and/or on paper. One of the questionnaires is for school-level leaders in participating schools in the 20 priority LEAs focusing on implementation of healthy school policies, practices, and programs. The other questionnaire is for students in elementary, middle, and high schools (grades 4-12) in the priority LEAs' schools focusing on physical activity, dietary behaviors, management of chronic health conditions, and well-being and academic attainment. The evaluation results will help recipients improve their programs and aid CDC in understanding and communicating the impact of its funding. We
CDC requests approval for the period of three years, with an anticipated request for an extension after that to cover the full five years of the program. The annual estimated total time burden to participants is 810 hours. There are no anticipated financial costs to participants other than their time to participate.
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
Administration for Children and Families, United States Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF) at the United States Department of Health and Human Services (HHS) intends to request approval from the Office of Management and Budget (OMB) to establish a new umbrella generic clearance to request information while engaging individuals and groups who could provide valuable information to inform ACF programs and work, including but not limited to those who are served or have been served by ACF, those with expertise in ACF program areas, and individuals invested in the outcomes of ACF research and evaluation. These engagement activities often need to be conducted quickly, to allow for sufficient time to inform project direction and decision-making. Additionally, planning for engagement activities is most often on a quick timeline and the standard timeline to comply with a full request under the Paperwork Reduction Act (PRA) often inhibits the ability to collect information to inform these activities. Therefore, an umbrella generic is necessary to allow for quick turnaround requests for similar information collections related to these activities.
You can obtain copies of the proposed collection of information and submit comments by emailing
Additionally, the Presidential Memorandum on Restoring Trust in Government through Scientific Integrity and Evidence-Based Policy Making,
Hearing the perspective of those affected by, experienced in, interested
ACF envisions using information collected to inform a variety of efforts and activities such as the improvement, planning, and implementation of research studies, program changes, development and dissemination of resources and products developed under ACF studies, regulatory activities, guidance, outreach and/or training activities.
The specific types of information gathering methods included under the umbrella of this clearance will vary, but will use well-established methodologies, including but not limited to:
Data collection will take place through a variety of activities—both in-person and virtual—dependent on the specific project. ACF will submit individual requests under this clearance. ACF requests OMB provide a response on individual generic information collections within 10 business days.
The burden table below is illustrative. Estimates for the number of respondents and time per response have been made based on discussion with ACF program offices, but as this is a new umbrella generic, it may be possible that we will need to adjust estimates throughout the three-year approval period. If needed, ACF will submit a change request for these updates. While we will not exceed the total burden cap for this generic without requesting a change for updates, we may use more or less burden within each instrument type.
Administration for Children and Families, Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF) proposes to extend data collection under the existing overarching Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery (Office of Management and Budget (OMB) #0970-0401). There are no changes to the proposed types of information collection or uses of data, but ACF is requesting an increase to the estimated number responses per respondent.
You can obtain copies of the proposed collection of information and submit comments by emailing
To work continuously to ensure that the ACF programs are effective and meet our customers' needs, we use this Fast Track generic clearance process to collect qualitative feedback on our service delivery. This collection of information is necessary to enable ACF to garner customer and stakeholder feedback in an efficient, timely manner in accord with our commitment to improving service delivery. The information collected from our customers and stakeholders helps ensure that users have an effective, efficient, and satisfying experience with the programs. This feedback provides insights into customer or stakeholder perceptions, experiences, and expectations; provides an early warning of issues with service; or focus attention on areas where communication, training, or changes in operations might improve delivery of products or services. These collections allow for ongoing, collaborative, and actionable communications between ACF and its customers and stakeholders. They also allow feedback to contribute directly to the improvement of program management.
Per Memorandum M-11-26, information collection requests submitted under this Fast Track generic will be considered approved unless OMB notifies ACF otherwise within 5 days.
The request to OMB will include an extension request for approved information collections that are planned to continue beyond May 2024. Find currently approved information collections here:
The following table includes burden estimates for new requests under this generic over the next 3 years. Based on the use of this generic clearance over the past 3 years, ACF is requesting an increase to the estimated number of responses per respondent from 1 to 2.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for WELIREG and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of patents which claims that human drug product.
Anyone with knowledge that any of the dates as published (see
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
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• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301-796-3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug or biologic product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: a testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human drug product WELIREG (belzutifan). WELIREG is indicated for the treatment of adult patients with von Hippel-Lindau disease who require therapy for associated renal cell carcinoma, central nervous system hemangioblastomas, or pancreatic neuroendocrine tumors, not requiring immediate surgery. Subsequent to this approval, the USPTO received patent term restoration applications for WELIREG (U.S. Patent Nos. 9,908,845; 9,969,689) from Peloton Therapeutics, Inc, and the USPTO requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated September 13, 2022, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of WELIREG represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for WELIREG is 1,752 days. Of this time, 1,541 days occurred during the testing phase of the regulatory review period, while 211 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks 342 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Theodoric Mattes at 240-627-3827, or
Technology description follows:
Researchers at the National Institute of Allergy and Infectious Diseases (NIAID), the U.S. Department of Agriculture (USDA), and the University of South Bohemia (České Budějovice, Czechia) have demonstrated that
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Theodoric Mattes at 240-627-3827, or
Technology description follows:
Investigators at NIAID have developed the recombinant IgG monoclonal antibody known as TsG10, which can target
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
National Institutes of Health, HHS.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Brian Bailey, Ph.D.; 240-669-5128 or 301-201-9217;
Technology description follows:
This technology is available for licensing for commercial development in accordance with 35 U.S.C. 209 and 37 CFR part 404, as well as for further development and evaluation under a research collaboration.
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• Provides enhanced stability and efficacy in norovirus VLP vaccines, ensuring effectiveness even in individuals with strong immune responses who have previously shown limited vaccine response.
• Its innovative design increases the VLPs' resistance to degradation, offering a more durable and reliable option for large-scale immunization programs.
• Pre-Clinical.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis, Panel SEP-1: NCI Clinical and Translational Cancer Research, February 7, 2024, 9:00 a.m. to February 7, 2024, 5:00 p.m., National Cancer Institute Shady Grove, 9609 Medical Center Drive, Room 7W108, Rockville, Maryland, 20850 which was published in the
This notice is being amended to change the meeting date from February 7, 2024, to February 20, 2024. The meeting location and time will stay the same. The meeting is closed to the public.
Federal Emergency Management Agency, Department of Homeland Security.
60-Day notice of new collection and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on a new information collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, this notice seeks comments concerning a generic clearance to collect feedback from applicants on service delivery and their subsequent disaster recovery.
Comments must be submitted on or before February 9, 2024.
To avoid duplicate submissions to the docket, please submit comments at
All submissions received must include the agency name and Docket ID. Regardless of the method used to submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Kristin Brooks, Statistician, FEMA's Recovery Reporting and Analytics Division, Customer Survey and Analysis Section, at (202) 826-6291 or
Executive Order 12862, “Setting Customer Service
The Government Performance and Results Act (GPRA) of 2010 also requires quarterly performance assessments of Government programs for purposes of assessing agency performance and improvement. One of the primary goals of GPRA is to improve Federal program effectiveness and public accountability by promoting a focus on results, service quality, and customer satisfaction.
The Foundations for Evidence-Based Policymaking Act of 2018 (“Evidence Act”) supports that data collection and analysis are important inputs to be used as evidence for prioritizing agency efforts to support civic engagement, delivering on mission, service, and stewardship objectives, and supporting decision-making.
FEMA seeks Office of Management and Budget (OMB) approval for a generic clearance to collect feedback from applicants on service delivery and their subsequent disaster recovery. The Agency has numerous touchpoints with applicants through several specialized customer-facing programs. The feedback collected from applicants may be quantitative or qualitative in nature depending on the population of interest, specific research questions, and the types of required analysis.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, Department of Homeland Security.
60-Day notice of new collection and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on a new information collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, this notice seeks comments concerning FEMA's grants performance reporting.
Comments must be submitted on or before February 9, 2024.
To avoid duplicate submissions to the docket, please submit comments at
All submissions received must include the agency name and Docket ID. Regardless of the method used to submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Cassandra Henry, Ph.D., CGMS, Monitoring and Compliance Branch, Risk Management Division, Grant Programs Directorate, FEMA, at 202-257-2308 or
In accordance with the Code of Federal Regulations (see 2 CFR 200.301 and 200.329), Federal awarding agencies must measure each recipient's performance to show achievement of program goals and objectives, share lessons learned, improve program outcomes, and foster adoption of promising practices. The Foundations for Evidence-Based Policy-Making Act of 2018 (Pub. L. 115-435) (“Evidence Act”) established processes for the Federal Government to modernize and increase impacts of reporting activities. To achieve these aims, the Federal Emergency Management Agency (FEMA) is changing its programmatic reporting to facilitate better and more consistent data collection. FEMA's Grant Programs Directorate (GPD) Risk Management Division (RMD) developed standard performance reporting
Grant performance reporting is a Federal requirement; standardized instruments under this generic collection will serve as the minimum performance reporting requirement for all programs. FEMA grants will collect both performance and project effectiveness measures via the required instruments under this new generic collection. Each FEMA grant program will collect only relevant, useful data. FEMA will utilize a standard framework under this generic collection but will not require each program to create the same end-product. Programs will tailor grant performance reporting instruments based on the grant's specific objectives, activities, indicators, targets, and reporting measures most appropriate for each program's funding objectives. Instruments under this generic collection are not intended to replace all existing information collection instruments that are programmatic or statutorily specific (
Comments may be submitted as indicated in the
Federal Emergency Management Agency, Department of Homeland Security.
60-Day notice of new collection and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on a new information collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, this notice seeks comments concerning a new generic information collection allowing FEMA to individually update instruments needed to provide financial, non-financial, program management, and technical assistance for FEMA's major disaster, emergency response, emergency recovery, and hazard mitigation activities.
Comments must be submitted on or before February 9, 2024.
To avoid duplicate submissions to the docket, please submit comments at
All submissions received must include the Agency name and Docket ID. Regardless of the method used to submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Jennie Orenstein, Branch Chief, FEMA's Federal Insurance and Mitigation Administration's Policy, Tools and Training Branch, at
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 93-288, as amended), 42 U.S.C. 5121-5207 (Stafford Act) provides broad authority to FEMA for disaster and emergency relief operations, reducing risk to people and property from hazards, and related activities and operations. The Stafford Act authorizes FEMA to provide financial and technical assistance to assist state, local, territorial, and Tribal (SLTT) governments and certain private non-profit (PNP) entities with the response to and recovery from Presidentially declared major disasters and emergencies, and the
The National Flood Insurance Act of 1968 (“NFIA”), as amended, and the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4001, et. seq.) authorize FEMA's National Flood Insurance Program (NFIP), including a wide range of related activities. For instance, the NFIA authorizes FEMA to provide financial assistance for planning and carrying out projects and activities designed to reduce the risk of flood damage to NFIP-insured structures.
FEMA routinely receives additional guidance from Congress, through new legislation, and the President, through Executive Orders, that requires changes to previously approved collection instruments in a few months to provide timely assistance to survivors. FEMA is proposing moving instruments from currently approved information collections into this new generic information collection to provide the necessary flexibility to update individual existing instruments and create new instruments as new guidance from Congress and the President is received, deliver timely assistance to survivors (both before and after a disaster), and maintain compliance with the Paperwork Reduction Act.
Comments may be submitted as indicated in the
Department of Homeland Security.
Notice.
The U.S. Department of Homeland Security (DHS), as the Chair of the Forced Labor Enforcement Task Force (FLETF), announces the publication and availability of the updated Uyghur Forced Labor Prevention Act (UFLPA) Entity List, a consolidated register of the four lists required to be developed and maintained pursuant to the UFLPA, on the DHS UFLPA website. The updated UFLPA Entity List is also published as an appendix to this notice. This update adds three entities to one of the lists of the UFLPA, which identifies entities working with the government of the Xinjiang Uyghur Autonomous Region to recruit, transport, transfer, harbor or receive forced labor or Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups out of the Xinjiang Uyghur Autonomous Region. Details related to the process for revising the UFLPA Entity List are included in this
This notice announces the publication and availability of the UFLPA Entity List updated as of December 11, 2023, included as an appendix to this notice.
Persons seeking additional information on the UFLPA Entity List should email the FLETF at
Cynthia Echeverria, Director of Trade Policy, Trade and Economic Security, Office of Strategy, Policy, and Plans, DHS. Phone: (202) 891-2331, Email:
The U.S. Department of Homeland Security (DHS), on behalf of the Forced Labor Enforcement Task Force (FLETF), is announcing the publication of the updated UFLPA Entity List, a consolidated register of the four lists required to be developed and maintained pursuant to Section 2(d)(2)(B) of the Uyghur Forced Labor Prevention Act (Pub. L. 117-78) (UFLPA), to
Beginning on June 21, 2022, the UFLPA requires the Commissioner of U.S. Customs and Border Protection to apply a rebuttable presumption that goods mined, produced, or manufactured by entities on the UFLPA Entity List are made with forced labor, and therefore, prohibited from importation into the United States
Section 741 of the United States-Mexico-Canada Agreement Implementation Act established the FLETF to monitor United States enforcement of the prohibition under section 307 of the Tariff Act of 1930, as amended (19 U.S.C. 1307).
The UFLPA requires, among other things, that the FLETF, in consultation with the Secretary of Commerce and the Director of National Intelligence, develop a strategy (UFLPA Section 2(c)) for supporting enforcement of section 307 of the Tariff Act of 1930, to prevent the importation into the United States of goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part with forced labor in the People's Republic of China. As required by the UFLPA, the
The UFLPA Entity List addresses distinct requirements set forth in clauses (i), (ii), (iv), and (v) of Section 2(d)(2)(B) of the UFLPA that the FLETF identify and publish the following four lists:
(1) a list of entities in the Xinjiang Uyghur Autonomous Region that mine, produce, or manufacture wholly or in part any goods, wares, articles, and merchandise with forced labor;
(2) a list of entities working with the government of the Xinjiang Uyghur Autonomous Region to recruit, transport, transfer, harbor or receive forced labor or Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups out of the Xinjiang Uyghur Autonomous Region;
(3) a list of entities that exported products made by entities in lists 1 and 2 from the People's Republic of China into the United States; and
(4) a list of facilities and entities, including the Xinjiang Production and Construction Corps, that source material from the Xinjiang Uyghur Autonomous Region or from persons working with the government of the Xinjiang Uyghur Autonomous Region or the Xinjiang Production and Construction Corps for purposes of the “poverty alleviation” program or the “pairing-assistance” program or any other government-labor scheme that uses forced labor.
The UFLPA Entity List is a consolidated register of the above four lists. In accordance with Section 3(e) of the UFLPA, effective June 21, 2022, entities on the UFLPA Entity List (listed entities) are subject to the UFLPA's rebuttable presumption, and products they produce, wholly or in part, are prohibited from entry into the United States under 19 U.S.C. 1307. The UFLPA Entity List is described in Appendix 1 to this notice. The UFLPA Entity List should not be interpreted as an exhaustive list of entities engaged in the practices described in clauses (i), (ii), (iv), or (v) of Section 2(d)(2)(B) of the UFLPA.
Revisions to the UFLPA Entity List, including all additions, removals, and technical corrections, will be published on the DHS UFLPA website (
The FLETF will consider future additions to the UFLPA Entity List based on the criteria described in clauses (i), (ii), (iv), or (v) of Section 2(d)(2)(B) of the UFLPA. Any FLETF member agency may submit a recommendation to the FLETF Chair to add an entity to the UFLPA Entity List. Following review of the recommendation by the FLETF member agencies, the decision to add an entity to the UFLPA Entity List will be made by majority vote of the FLETF member agencies.
Any listed entity may submit a request for removal (removal request) from the UFLPA Entity List along with supporting information to the FLETF Chair at
Listed entities may request a meeting with the FLETF after submitting a removal request in writing to the FLETF Chair at
This notice supersedes the UFLPA Entity List published in the
• Anhui Xinya New Materials Co., Ltd. (formerly known as Chaohu Youngor Color Spinning Technology Co., Ltd. and Chaohu Xinya Color Spinning Technology Co., Ltd.)
• COFCO Sugar Holdings Co., Ltd.
• Sichuan Jingweida Technology Group Co., Ltd. (also known as Sichuan Mianyang Jingweida Technology Co., Ltd. and JWD Technology; and formerly known as Mianyang High-tech Zone Jingweida Technology Co., Ltd.)
No technical corrections or removals are being made to the UFLPA Entity List at this time.
The UFPLA Entity List is a consolidated register of the four lists that are required to be developed and maintained pursuant to Section 2(d)(2)(B) of the UFLPA. Thirty entities that meet the criteria set forth in the four required lists (
Entities identified in sections (i) and (ii) above may serve as both manufacturers and exporters. The FLETF has not identified additional exporters at this time but will continue to investigate and gather information about additional entities that meet the specified criteria.
Office of Policy Development and Research, Chief Data Officer, 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
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
(5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Policy Development and Research, Chief Data Officer, 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 an additional 30 days of public comment.
Interested persons are invited to submit comments regarding
Colette Pollard, Reports Management Officer, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(5) ways to minimize the burden of the collection of information on those who are respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Policy Development and Research, Chief Data Officer, 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 an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
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 respond, including through the use of appropriate automated collection techniques or other forms of information technology,
(5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection can be submitted within 60 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A.
HUD is adding to the collection two (2) documents (HUD-5985L and HUD-5985B) that will be used to facilitate uniform electronic closings of FHA-insured commercial mortgage closings, allow for the use of digital signatures and digital records where they are consistent with program obligations, and determine the parties' compliance with applicable legal requirements and therefore ensure protection of the FHA insurance fund; and one (1) document (HUD-5985IRR) that will be used by the FHA Lender to certify to HUD certain conditions required as part of a request to reduce the interest rate of an existing FHA-insured commercial mortgage (often due to market fluctuations that lower the interest rate and save the project money by making this reduction). In addition, the name of this collection is being changed from COVID19 HUD Contingency Plan for HUD Multifamily Rental Project Closing Documents to Electronic Closing and Continued First Lien Priority Certificates for FHA-Insured Commercial Mortgage Transactions.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35
Office of Policy Development and Research, Chief Data Officer, 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 an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing to renew an information collection, with changes.
Interested persons are invited to submit comments on or before January 10, 2024.
Written comments and recommendations for the proposed information collection should be submitted within 30 days of publication of this notice at
Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA; 44 U.S.C. 3501
On June 2, 2023, we published in the
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 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. We will include or summarize each comment in our request
Under 50 CFR 20.20, migratory bird hunters must register for the Migratory Bird Harvest Information Program (HIP) in each State in which they hunt each year. State natural resource agencies must send names and addresses of all migratory bird hunters to the Service's Branch of Monitoring and Information Management, Division of Migratory Bird Management, on an annual basis.
The Migratory Bird Hunter Survey is based on the Migratory Bird Harvest Information Program. We randomly select migratory bird hunters and ask them to report their harvests. The resulting estimates of harvest per hunter are combined with the complete list of migratory bird hunters to provide estimates of the total harvest for the species surveyed.
The Parts Collection Survey estimates the species, sex, and age composition of the harvest, and the geographic and temporal distribution of the harvest. Randomly selected successful hunters who responded to the Migratory Bird Hunter Survey the previous year, as well as a sample of hunters who were not surveyed the previous year, are asked to complete and return a letter if they are willing to participate in the Parts Collection Survey. We provide postage-paid envelopes to respondents before the hunting season and ask them to send in a wing or the tail feathers from each duck or goose that they harvest, or a wing from each mourning dove, woodcock, band-tailed pigeon, or rail that they harvest. We use the wings and tail feathers to identify the species, sex, and age of the harvested sample. We also ask respondents to report the date and location of harvest for each bird on the outside of the envelope. We combine the results of this survey with the harvest estimates obtained from the Migratory Bird Hunter Survey to provide species-specific national harvest estimates.
The combined results of these surveys enable us to evaluate the effects of season length, season dates, and bag limits on the harvest of each species, and thus help us determine appropriate hunting regulations.
The Sandhill Crane Harvest Survey is an annual questionnaire survey of people who obtained a sandhill crane hunting permit. At the end of the hunting season, we randomly select a sample of permit holders and ask them to report the date, location, and number of birds harvested for each of their sandhill crane hunts. Their responses provide estimates of the temporal and geographic distribution of the harvest as well as the average harvest per hunter, which, combined with the total number of permits issued, enables us to estimate the total harvest of sandhill cranes. Based on information from this survey, we adjust hunting regulations as needed.
In 2019, we implemented a new, online platform for the Migratory Bird Hunter Survey. The platform is optimized for use on multiple devices (computer, tablet, or phone; Android or Apple OS). This online survey platform walks a participant through the process of entering their harvest for a single day and asks for one piece of information at a time, which reduces confusion and the likelihood that the hunter will provide incorrect information. The online system improves data quality and prevents errors (
We propose to conduct a 3-year pilot study with the development of a mobile application that can be used by hunters to take photos of the birds they harvest and upload them to our database, and a web-based interface for expert biologists to use to examine and identify birds from photos. We propose to conduct the pilot study with up to 600 hunters each year, which allows us to (1) evaluate the potential of using photo identification for other species in the Parts Collection survey, including doves, band-tailed pigeons, woodcock and rails, (2) achieve sample sizes sufficient to assess the limitations of photo identification for all waterfowl species, (3) develop methods to enhance the quality of hunter-supplied photos, and (4) amass an annotated set of photos to provide to researchers investigating the potential of machine-learning based image classification methods for automated identification of species, age, and sex.
In addition, there is the potential for introducing other biases in data collection when transitioning to a photo survey; to assess these biases and provide uninterrupted information on annual harvest, we intend to conduct the full parts survey during this 3-year period to provide a comparison of results between the two surveys. If photo identification proves difficult for some species, we may continue a limited sample of parts collection to ensure harvest estimates can be calculated.
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
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) is proposing to renew an information collection.
Interested persons are invited to submit comments on or before January 10, 2024.
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 Sabry Hanna 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 the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including 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, 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
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
The Bureau of Land Management (BLM) hereby provides constructive notice that it will issue an appealable decision approving conveyance of the surface estate in certain lands to The Tatitlek Corporation for the Native village of Tatitlek, pursuant to the Alaska Native Claims Settlement Act of 1971 (ANCSA). The subsurface estate in the same lands will be conveyed to Chugach Alaska Corporation when the surface estate is conveyed to The Tatitlek Corporation.
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the time limits set out in the
You may obtain a copy of the decision from the Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, AK 99513-7504.
Dina Torres, BLM Alaska State Office, 907-271-5699, or
As required by 43 CFR 2650.7(d), notice is hereby given that the BLM will issue an appealable decision to The Tatitlek Corporation. The decision approves conveyance of the surface estate in
Containing 3,289.54 acres.
Containing 1,280 acres.
Containing 2,560 acres.
Containing 991.81 acres.
Containing 640 acres.
Aggregating 8,761.35 acres.
The decision addresses public access easements, if any, to be reserved to the United States pursuant to sec. 17(b) of ANCSA (43 U.S.C. 1616(b)), in the lands described above.
The BLM will also publish notice of the decision once a week for four consecutive weeks in the “Cordova Times” newspaper.
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until January 10, 2024 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4 shall be deemed to have waived their rights. Notices of appeal transmitted by facsimile will not be accepted as timely filed.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before November 25, 2023, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by December 26, 2023.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before November 25, 2023. Pursuant to section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
A request for removal has been made for the following resource(s):
An additional documentation has been received for the following resource(s):
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before November 18, 2023, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by December 26, 2023.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before November 18, 2023. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
A request for removal has been made for the following resource(s):
An additional documentation has been received for the following resource(s):
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint, a motion for temporary relief, and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Future Motion, Inc. on December 5, 2023. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain self-balancing electric skateboards and components thereof. The complaint names as respondents: Floatwheel of China; Changzhou Smilo Motors Co., Ltd. of China; Changzhou Gaea Technology Co., Ltd. of China; and Shanghai Loyal Industry Co., Ltd. d/b/a “SoverSky” of China. The complainant requests that the Commission grant temporary relief in the form of temporary exclusion orders during the period of investigation. Complainant also requests issuance of a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3710”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part a final initial determination (“Final ID”) issued by the presiding administrative law judge (“ALJ”) finding no violation of section 337 of the Tariff Act of 1930, with respect to U.S. Patent Nos. 9,264,370 (“the '370 patent”); 10,193,917 (“the '917 patent”); and 10,284,526 (“the '526 patent”). On review, the Commission has determined to take no position regarding whether the economic prong of the domestic industry requirement is satisfied, and to affirm under modified reasoning the Final ID's finding of no violation of section 337 with respect to those patents. This investigation is terminated.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2392. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On May 24, 2022, the Commission instituted this investigation based on a complaint, as amended and supplemented, filed on behalf of Centripetal Networks, Inc. of Reston, Virginia. 87 FR 31581-82 (May 24, 2022). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain computer network security equipment and systems, related software, components thereof, and products containing the same that infringe certain claims of the '370 patent, the '917 patent, and the '526 patent.
On January 20, 2023, the complainant provided notice that it changed its name to Centripetal Networks, LLC (“Centripetal”). Complainant's Notice of Corporate Name Change (Jan. 20, 2023). On March 6, 2023, the Commission granted the complainant's motion to amend the complainant and notice of the investigation to reflect the name change. Order No. 32 (Feb. 3, 2023),
Centripetal originally asserted that Keysight violated section 337 based on infringement of claims 22-27, 42-48, and 63 of the '370 patent; claims 1, 5, 11, 15, and 20 of the '917 patent; and claims 1-3, 6, 11-13, and 16 of the '526 patent. 87 FR at 31581-82. The Commission previously terminated the investigation with respect to claims 23-27, 42, 44-48, and 63 of the '370 patent, claims 1, 5, and 15 of the '917 patent,
On September 26, 2022, the ALJ conducted a
On August 8, 2023, the ALJ issued the Final ID finding no violation of section 337 with respect to any asserted patent. Specifically, the Final ID finds that: (1) with respect to the '370 patent, claims 22 and 43 are not infringed and are invalid for being directed to unpatentable subject matter under 35 U.S.C. 101, and the technical prong of the domestic industry requirement is not satisfied; (2) with respect to the '917 patent claims 11 and 20 are infringed and the technical prong of the domestic industry requirement is satisfied, but the asserted claims are invalid as obvious under 35 U.S.C. 103; and (3) with respect to the '526 patent, claims 1, 3, 11, 13, and 16 of the '526 patent are not infringed and are invalid as anticipated under 35 U.S.C. 102, but the technical prong of the domestic industry requirement is satisfied. Finally, the Final ID finds that Centripetal has satisfied the economic prong of the domestic industry requirement under Section 337(a)(3)(A) and (B) with respect to each of the asserted patents.
The ALJ recommended that, if the Commission were to find a violation of section 337, the Commission should issue a limited exclusion order and cease and desist order with respect to Keysight. The ALJ also recommended that, should a violation be found, the bond rate be set at a 100 percent of entered value of the products imported during the period of Presidential review.
On August 14, 2023, the Commission requested comments from the public and interested government agencies regarding any public interest issues raised by the ALJ's recommended determination on remedy and bonding. 88 FR 55067-68 (Aug. 14, 2023). The Commission received no comments from the public or government agencies. On September 7, 2023, Centripetal and Keysight provided comments on the public interest pursuant to Commission Rule 210.50(a)(4). 19 CFR 210.50(a)(4).
On August 23, 2023, Centripetal filed a petition for review challenging the Final ID's findings that: (1) the '370 patent claims are not infringed or invalid for being directed to unpatentable subject matter, and that the technical prong of the domestic industry requirement is not satisfied as to that patent; (2) the '917 patent claims are invalid for obviousness; and (3) the '526 claims are not infringed and invalid for anticipation. On September 1, 2023, Keysight and OUII filed responses opposing the petition for review.
Having examined the record of this investigation, including the ALJ's Final ID, the petitions for review, and the responses thereto, the Commission has determined to review the Final ID in part and, on review, to affirm the Final ID's finding of no violation. Specifically, the Commission reviews the Final ID's finding that Centripetal waived its argument that the Check Point R77.30 prior art software does not satisfy the limitation “creat[ing] the list of the identification data based on the received at least one list of network addresses and/or domain names” in claims 3 and 13 of the '526 patent. The Final ID finds waiver because Centripetal failed to contest that limitation in its prehearing brief.
The Commission, however, determines to affirm under modified reasoning the Final ID's finding that Check Point R77.30 satisfies the limitation “creat[ing] the list of the identification data based on the received at least one list of network addresses and/or domain names.” In addition to the reasons found in the Final ID, and as argued by OUII, the Application and URL Filter satisfy the claim language because the filter uses category-based rules based on a subscription service to determine what traffic to decrypt and inspect.
The Commission has also determined to review the Final ID's finding that the economic prong of the domestic industry requirement is satisfied. On review, the Commission has determined to take no position as to whether the economic prong of the domestic industry requirement is satisfied.
The Commission has determined not to review the remainder of the Final ID. Consequently, the Commission finds no violation of section 337 with respect to any asserted patent. This investigation is hereby terminated with a finding of no violation of section 337.
The Commission vote for this determination took place on December 5, 2023.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping investigation Nos. 731-TA-1607-1611 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of boltless steel shelving units prepackaged for sale (“boltless steel shelving”) from India, Malaysia, Taiwan, Thailand, and Vietnam, provided for in subheading 9403.20.00 of the Harmonized Tariff Schedule of the United States. The Department of Commerce (“Commerce”) has preliminarily determined imports of boltless steel shelving from Malaysia, Taiwan, Thailand, and Vietnam to be sold at less-than-fair value. In addition, Commerce has made negative
November 29, 2023.
Jordan Harriman (202-205-2610), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Although Commerce has preliminarily determined that imports of boltless steel shelving units prepackaged for sale from India are not being and are not likely to be sold in the United States at less than fair value, for purposes of efficiency the Commission hereby waives rule 207.21(b)
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the hearing. All parties and nonparties desiring to appear at the hearing and make oral presentations should attend a prehearing conference, if deemed necessary, to be held at 9:30 a.m. on Friday, April 5, 2024. Parties shall file and serve written testimony and presentation slides in connection with their presentation at the hearing by no later than 4:00pm on April 10, 2024. Oral testimony and written materials to be submitted at the public hearing are governed by sections 201.6(b)(2), 201.13(f), and 207.24 of the
Additional written submissions to the Commission, including requests pursuant to § 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with §§ 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
Joint Board for the Enrollment of Actuaries.
Notice of Federal advisory committee meeting.
The Joint Board for the Enrollment of Actuaries gives notice of a meeting of the Advisory Committee on Actuarial Examinations (a portion of which will be open to the public), which will be held at the Internal Revenue Service, 1111 Constitution Avenue NW, Washington DC, on January 4 and 5, 2024.
Thursday, January 4, 2024, from 9 a.m. to 5 p.m., and Friday, January 5, 2024, from 8:30 a.m. to 4 p.m.
The meeting will be held at the Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC 20224.
Ms. Elizabeth Van Osten, Designated Federal Officer, Advisory Committee on Actuarial Examinations, at (202) 317-3648 or
Notice is hereby given that the Advisory Committee on Actuarial Examinations will meet at the Internal Revenue Service, 1111 Constitution Avenue NW, Washington, DC 20224, on Thursday, January 4, 2024, from 9 a.m. to 5 p.m. and Friday, January 5, 2024, from 8:30 a.m. to 4 p.m.
The purpose of the meeting is to discuss topics and questions that may be recommended for inclusion on future Joint Board examinations in actuarial mathematics and methodology referred to in 29 U.S.C. 1242(a)(1)(B) and to review the November 2023 Pension (EA-2F) to make recommendations relative thereto, including the minimum acceptable passing score. Topics for inclusion on the syllabus for the Joint Board's examination program for the May 2024 Basic (EA-1) Examination and the May 2024 Pension (EA-2L) Examination also will be discussed.
A determination has been made as required by section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. 1009, that the portions of the meeting dealing with the discussion of questions that may appear on the Joint Board's examinations and the review of the November 2023 EA-2F Examination fall within the exceptions to the open meeting requirement set forth in 5 U.S.C. 552b(c)(9)(B), and that the public interest requires that such portions be closed to public participation.
The portion of the meeting dealing with the discussion of the other topics will commence at 1 p.m. on January 4, 2024, and will continue for as long as necessary to complete the discussion, but not beyond 3 p.m. Time permitting, after the close of this discussion by Committee members, interested persons may make statements germane to this subject. Persons wishing to make oral statements should contact the Designated Federal Officer at
Bureau of Justice Statistics, Department of Justice.
60-Day notice.
The Bureau of Justice Statistics, Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget
Comments are encouraged and will be accepted for 60 days until February 9, 2024.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Zhen Zeng, Bureau of Justice Statistics, 810 Seventh Street NW, Washington, DC 20531 (email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
It takes 150 minutes to complete the 2024 COJ form. About 70% of the respondents (2,030) will be contacted for data quality follow-up and each follow-up will take 10 minutes. The total burden for the 2024 COJ is 7,588 hours. The 2025 and 2026 COJ forms are shorter than the 2024 form and take 80 minutes per response. The estimated time and number of respondents for data quality follow-up remain the same. In addition, it takes 5 minutes to verify jail status and point-of-contact per jail for the 2025 and 2026 COJ. The burden for the 2025 and 2026 COJ is 4,447 hours for each collection. Jail verification takes 10 minutes per jail for the 2024 COJ. This burden is covered by BJS's generic clearance agreement (OMB Control Number 1121-0339) and excluded from the current OMB application.
6.
7.
If additional information is required contact: Darwin Arceo, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 4W-218, Washington, DC.
Employee Benefits Security Administration, Labor.
Notice of exemption.
This document contains a notice of exemption issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
The exemption will be in effect on the date that this grant notice is published in the
Mr. Joseph Brennan of the Department at (202) 693-8456. (This is not a toll-free number.)
On November 18, 2021, the Department published a notice of proposed exemption in the
Under the exemption, certain restrictions of ERISA sections 406(a) and 406(b) and certain sanctions resulting from the application of Code section 4975,
The Applicant requested an individual exemption pursuant to ERISA section 408(a) in accordance with the Department's procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).
Currently, Mitsubishi is the largest investor in Morgan Stanley, holding 24.5 percent of Morgan Stanley's outstanding common stock. Mitsubishi also currently nominates two directors to Morgan Stanley's board of directors. Despite this ownership interest, the Applicant states that Mitsubishi does not have sufficient control over Morgan Stanley to warrant treatment of Mitsubishi and Morgan Stanley as “affiliates” within the meaning of certain Applicable Class Exemptions, which are described below.
The Department has granted a wide variety of class exemptions that permit affiliated parties to engage in specified plan-related transactions, provided that certain protective conditions are met. The following seven class exemptions (the Applicable Class Exemptions) are relevant to this exemption:
PTE 75-1, Part III permits a fiduciary to cause a plan to purchase securities from a member of an underwriting syndicate, when the fiduciary is also a member of such syndicate, and the member selling the securities to the plan is not affiliated with the fiduciary. The
PTE 75-1, Part IV permits a plan to purchase or sell securities in a principal transaction with a fiduciary that is also a “market-maker” with respect to such securities. For purposes of the exemption, the term “fiduciary” includes “affiliates” of the fiduciary.
PTE 77-3 permits the acquisition or sale of shares of a registered open-end investment company (a mutual fund) by a plan that covers only employees of the mutual fund, the mutual fund's investment adviser, the mutual fund's underwriter, or an affiliate thereof.
PTE 77-4 permits the purchase or sale by a plan of shares of a mutual fund, where the mutual fund's investment adviser is a plan fiduciary, or is affiliated with a plan fiduciary, but is not an employer of employees covered by the plan.
PTE 79-13 permits the purchase, ownership, and sale of shares of a closed-end mutual fund by a plan, where such plan covers only employees of the closed-end mutual fund, employees of an investment adviser to the closed-end mutual fund, or employees of an affiliate of the closed-end mutual fund or investment adviser.
PTE 86-128 provides an exemption for certain fiduciaries and their affiliates to receive a fee from a plan or IRA for effecting or executing securities transactions as an agent on behalf of the plan or IRA. PTE 86-128 also allows a fiduciary (or an affiliate of a fiduciary) to act as an agent in an “agency cross transaction” for both a plan (or IRA) and for another party to the transaction, and to receive reasonable compensation from another party to the transaction.
PTE 2002-12 permits the cross-trading of securities by and between certain index and model-driven funds managed by investment “managers,” and among index and model-driven funds, and certain large accounts, that engage such “managers.” For purposes of PTE 2002-12, the term “manager” includes affiliates of the “manager.”
Assuming that Morgan Stanley and Mitsubishi are not affiliates for the purposes of the Applicable Class Exemptions, as they indicate,
The Applicant represents that the exemption would enhance plans investment and service provider options. According to Morgan Stanley, plan participants would have access to more counterparties and investment products in the market. In addition, the plans would have access to more efficient and less expensive brokerage services.
This exemption contains certain new conditions that are not otherwise found in the Applicable Class Exemptions (the New Conditions). One New Condition requires the Morgan Stanley/Mitsubishi Entities to comply with a new “Impartial Conduct Standard” and act in the Best Interest of plans. Another New Condition requires the Morgan Stanley/Mitsubishi Entity to provide plans with written notice that discloses (a) the ownership relationship between Morgan Stanley and Mitsubishi, and (b) that the transactions will provide a benefit to Morgan Stanley and/or Mitsubishi, and/or involve a conflict of interest.
The Department granted each Applicable Class Exemption after determining on the record that each exemption was administratively feasible and in the interest of and protective of affected plans. Given that the transactions in this exemption are substantially similar to those permitted by the Applicable Class Exemptions, subject to not only essentially the same suite of conditions, but also to the New Conditions, the Department has determined that this exemption is administratively feasible and in the interest of, and protective of, affected plans and their participants and beneficiaries.
In the proposed exemption, the Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the notice of proposed exemption. All comments and requests for a hearing were due to the Department by January 18, 2022. The Department received one written comment from the Applicant. The Department did not receive any requests for a public hearing.
The Applicant states: (a) Mitsubishi's ownership interest in Morgan Stanley has decreased since Morgan Stanley agreed to convert all Mitsubishi-owned Morgan Stanley Series B Preferred Stock into Morgan Stanley common stock; (b) it cannot represent that Mitsubishi's ownership interest has decreased because of stock repurchases from others; and (c) it cannot confirm the 22.56% ownership interest referenced in the proposed exemption, as that was not a fact that the Applicant provided to the Department.
The complete application file (D-11955) is available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, please refer to the notice of proposed exemption published in the
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under ERISA section 408(a) does not relieve a fiduciary or other party in interest from requirements of other ERISA provisions, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of ERISA section 404, which, among other things, require fiduciaries to discharge their duties respecting the plan solely in the interest of the plan's participants and beneficiaries and in a prudent fashion in accordance with ERISA section 404(a)(1)(B).
(2) As required by ERISA section 408(a), the Department hereby finds that the exemption is: (a) administratively feasible; (b) in the interests of affected plans and of their participants and beneficiaries; and (c) protective of the rights of participants and beneficiaries of such plans.
(3) This exemption is supplemental to, and not in derogation of, any other ERISA provisions, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of determining whether the transaction is in fact a prohibited transaction.
(4) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describe all material terms of the transactions that are the subject of the exemption.
Accordingly, after considering the entire record developed in connection with the Applicant's exemption application, the Department has determined to grant the following exemption under the authority of ERISA section 408(a), and in accordance with the procedures set forth in 29 CFR part 2570, subpart B:
The restrictions of ERISA section 406 and the taxes imposed Code section 4975 (a) and (b), by reason of Code section 4975(c)(1), shall not apply to the purchase or other acquisition of certain securities by a plan during the existence of an underwriting or selling syndicate with respect to such securities, from any person other than Morgan Stanley or Mitsubishi, when a Morgan Stanley/Mitsubishi Entity is a fiduciary with respect to such plan, and a Related Entity is a member of such syndicate, provided that the following conditions are met:
(a) No Morgan Stanley/Mitsubishi Entity or Related Entity that is involved in causing a plan to make the purchase is a manager of such underwriting or selling syndicate. The term “manager” means any member of an underwriting or selling syndicate who, either alone or together with other members of the syndicate, is authorized to act on behalf of the members of the syndicate in connection with the sale and distribution of the securities being offered or who receives compensation from the members of the syndicate for its services as a manager of the syndicate.
(b) The securities to be purchased or otherwise acquired are:
(1) Part of an issue registered under the Securities Act of 1933 (the 1933 Act) or, if exempt from such registration requirement, are:
(i) Issued or guaranteed by the United States or by any person controlled or supervised by and acting as an instrumentality of the United States, pursuant to authority granted by the Congress of the United States,
(ii) Issued by a bank,
(iii) Issued by a common or contract carrier, if such issuance is subject to the provisions of section 20a of the Interstate Commerce Act, as amended,
(iv) Exempt from such registration requirement, pursuant to a Federal statute other than the 1933 Act, or are
(v) The subject of a distribution and are of a class which is required to be registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 781) (the 1934 Act), and the issuer of which has been subject to the reporting requirements of section 13 of the 1934 Act (15 U.S.C. 78m) for a period of at least ninety (90) days immediately preceding the sale of securities and has filed all the reports required to be filed thereunder with the SEC during the preceding twelve (12) months.
(2) Purchased at not more than the public offering price before the end of the first full business day after the final terms of the securities have been fixed and announced to the public, except that:
(i) If such securities are offered for subscription upon exercise of rights, they are purchased on or before the fourth day preceding the day on which the rights offering terminates; or
(ii) If such securities are debt securities, they may be purchased at a public offering price on a day after the end of such first full business day, provided that the interest rates on comparable debt securities offered to the public after such first full business day and before the purchase are less than the interest rate of the debt securities being purchased.
(3) Offered pursuant to an underwriting agreement under which the members of the syndicate are committed to purchase all securities being offered, except if:
(i) Such securities are purchased by others pursuant to a rights offering; or
(ii) Such securities are offered pursuant to an over-allotment option.
(c) The issuer of such securities has been in continuous operation for not less than three (3) years, including the operations of any predecessors, unless
(1) Such securities are non-convertible debt securities rated in one of the four (4) highest rating categories by at least one (1) of the Rating Agencies, as defined below in Part IX (e);
(2) Such securities are issued or fully guaranteed by a person described above in subparagraph (b)(1)(i) of this Part I; or
(3) Such securities are fully guaranteed by a person who has issued securities described above in subparagraph (b)(1)(ii), (iii), (iv), or (v) of Part I, and in this subparagraph (c) of Part I.
(d) The amount of such securities to be purchased or otherwise acquired by a plan, pursuant to this exemption and PTE 75-1, Part III, does not exceed 3 percent (3%) of the total amount of such securities being offered.
(e) The consideration to be paid by a plan in purchasing or otherwise acquiring such securities pursuant to this exemption and PTE 75-1, Part III, does not exceed 3 percent (3%) of the
If such securities are purchased by a plan from a party in interest or disqualified person with respect to such plan, such party in interest or disqualified person shall not be subject to the civil penalty which may be assessed under ERISA section 502(i) or the taxes imposed by Code section 4975(a) and (b) if the conditions of this exemption are not met. However, if such securities are purchased from a party in interest or disqualified person with respect to a plan, the restrictions of ERISA section 406(a) shall apply to any Morgan Stanley/Mitsubishi Entity acting as fiduciary with respect to such plan, and the taxes imposed by Code section 4975(a) and (b) by reason of Code section 4975(c)(1)(A) through (D), shall apply to such party in interest or disqualified person, unless the conditions for exemption of PTE 75-1 (40 FR 50845, October 31, 1975), Part II (relating to certain principal transactions) are met.
The restrictions of ERISA section 406, and the taxes imposed by Code section 4975 (a) and (b), by reason of Code section 4975(c)(1), shall not apply to any purchase or sale of any securities by a plan from or to a Related Entity which is a market-maker with respect to such securities, when a Morgan Stanley/Mitsubishi Entity is a fiduciary with respect to such plan, provided that the following conditions are met:
(a) The issuer of such securities has been in continuous operation for not less than three (3) years, including the operations of any predecessors, unless such securities are:
(1) non-convertible debt securities rated in one of the four (4) highest rating categories by at least one (1) of the Rating Agencies;
(2) issued or guaranteed by the United States or by any person controlled or supervised by and acting as an instrumentality of the United States pursuant to authority granted by the Congress of the United States; or
(3) fully guaranteed by a person described in this subparagraph (a).
(b) As a result of purchasing such securities:
(1) The fair market value of the aggregate amount of securities owned, directly or indirectly, by a plan and with respect to which a Morgan Stanley/Mitsubishi Entity is a fiduciary, pursuant to this exemption and PTE 75-1, Part IV, does not exceed three percent (3%) of the fair market value of the plan's assets with respect to which the Morgan Stanley/Mitsubishi Entity is a fiduciary, as of the last day of the most recent fiscal quarter of such plan before the transaction, provided that if the fair market value of such securities exceeds $1 million, it does not exceed one percent (1%) of the fair market value of the plan's assets, except that this subparagraph shall not apply to securities described in subparagraph (a)(2) of this Part II, above; and
(2) The fair market value of the aggregate amount of all securities for which any Related Entity is a market-maker, which are owned, directly or indirectly, by a plan and with respect to which a Morgan Stanley/Mitsubishi Entity is a fiduciary, pursuant to this exemption and PTE 75-1, Part IV, does not exceed 10 percent (10%) of the fair market value of the plan's assets with respect to which the Morgan Stanley/Mitsubishi Entity is a fiduciary, as of the last day of the most recent fiscal quarter of such plan before such transaction, except that this subparagraph shall not apply to securities described in subparagraph (a)(2) of this Part II.
(c) At least one (1) person other than a Related Entity is a market-maker with respect to such securities.
(d) The transaction is executed at a net price to a plan for the number of shares or other units to be purchased or sold in the transaction that is more favorable to such plan than that which the Morgan Stanley/Mitsubishi Entity, acting as fiduciary and acting in good faith, reasonably believes to be available at the time of such transaction from all other market-makers with respect to the securities.
For purposes of this Part II, the term “market-maker” shall mean any specialist permitted to act as a dealer, and any dealer who, with respect to a security, holds themselves out as being willing to buy and sell such security for their own account on a regular or continuous basis by entering quotations in an inter-dealer communications system or otherwise.
The restrictions of ERISA sections 406 and 407(a) and the taxes imposed by Code section 4975(a) and (b), by reason of Code section 4975(c)(1), shall not apply to the acquisition or sale of shares of an open end investment company registered under the Investment Company Act of 1940 (the 1940 Act) by an benefit plan covering only employees of a Morgan Stanley/Mitsubishi Entity where a Related Entity is an investment adviser or principal underwriter with respect to the open-end investment company, provided the following conditions are met (whether or not such investment company, investment adviser, principal underwriter or any affiliated person thereof is a fiduciary with respect to the plan):
(a) The plan does not pay any investment management, investment advisory or other fees or compensation to any Morgan Stanley/Mitsubishi Entity or Related Entity, except to the extent expressly permitted herein. This condition does not preclude the payment of investment advisory fees by the investment company under the terms of its investment advisory agreement adopted in accordance with section 15 of the 1940 Act.
(b) The plan does not pay a redemption fee in connection with the sale by the plan to the investment company of such shares, unless (1) such redemption fee is paid only to the investment company, and (2) the existence of such redemption fee is disclosed in the investment company prospectus in effect both at the time of the acquisition of such shares and at the time of such sale.
(c) The plan does not pay a sales commission in connection with such acquisition or sale.
(d) All dealings between the plan and the investment company, the Related Entity, any other investment adviser or principal underwriter for the investment company, or any affiliated person (as defined in section 2(a)(3) of the 1940 Act) of the Related Entity, other investment adviser, or principal underwriter, are on a basis no less favorable to the plan than such dealings are with other shareholders of the investment company.
The restrictions of ERISA section 406(a)(1)(B) and 406(b) and the taxes imposed by Code section 4975(a) and (b), by reason of Code section 4975(c)(1)(B), (D), (E) and (F), shall not apply to the purchase or sale by a plan of shares of an open-end investment company registered under the 1940 Act, where a Related Entity is the investment adviser of the investment company and a Morgan Stanley/Mitsubishi Entity is a
(a) The plan does not pay a sales commission in connection with such purchase or sale.
(b) The plan does not pay a redemption fee in connection with the sale by the plan to the investment company of such shares unless:
(1) The redemption fee is paid only to the investment company, and
(2) The existence of the redemption fee is disclosed in the investment company prospectus in effect both at the time of the purchase of the shares and at the time of the sale.
(c) The plan does not pay an investment management, investment advisory or other fee or compensation, with respect to the plan assets invested in the shares for the entire period of the investment, except to the extent expressly permitted herein. This condition does not preclude the payment of investment advisory fees by the investment company under the terms of its investment advisory agreement adopted in accordance with section 15 of the 1940 Act. This condition also does not preclude payment of an investment advisory fee by the plan based on the total plan assets from which a credit has been subtracted representing the plan's pro rata share of the investment advisory fees paid by the investment company. If, during any fee period for which the plan has prepaid its investment management, investment advisory or similar fee, the plan purchases shares of the investment company, the requirement of this subparagraph (c) shall be deemed met with respect to such prepaid fee if, by a method reasonably designed to accomplish the same, the amount of the prepaid fee that constitutes the fee with respect to the plan assets invested in the investment company shares: (1) is anticipated and subtracted from the prepaid fee at the time of payment of the fee; (2) is returned to the plan no later than during the immediately following fee period; or (3) is offset against the prepaid fee for the immediately following fee period or for the fee period immediately following thereafter. For purposes of this subparagraph (c), a fee shall be deemed to be prepaid for any fee period if the amount of the fee is calculated as of a date no later than the first day of such period.
(d) A second fiduciary with respect to the plan, who is independent of and unrelated to Morgan Stanley and Mitsubishi, receives a current prospectus issued by the investment company, and full and detailed written disclosure of the investment advisory and other fees charged to or paid by such plan and the investment company, including the nature and extent of any differential between the rates of such fees, the reasons why the Morgan Stanley/Mitsubishi Entity may consider such purchases to be appropriate for the plan, and whether there are any limitations on the Morgan Stanley/Mitsubishi Entity with respect to which plan assets may be invested in shares of the investment company and, if so, the nature of such limitations. For purposes of this subparagraph (d), the second fiduciary will not be deemed to be independent of and unrelated to Morgan Stanley and Mitsubishi if:
(1) The second fiduciary directly or indirectly controls, is controlled by, or is under common control with Morgan Stanley or Mitsubishi;
(2) The second fiduciary, or any officer, director, partner, employee or relative of such second fiduciary is an officer, director, partner or employee of Morgan Stanley or Mitsubishi; or
(3) The second fiduciary directly or indirectly receives any compensation or other consideration for their own personal account in connection with any transaction described in this Part IV.
Subparagraph (d)(2) of this Part IV shall not apply If an officer, director, partner, employee or relative of any Morgan Stanley or Mitsubishi entity is a director of such second fiduciary, and if they abstain from participation in:
(i) The choice of the plan's investment adviser,
(ii) The approval of any purchase or sale between the plan and the investment company, and
(iii) The approval of any change of fees charged to or paid by such plan.
For purposes of subparagraph (d)(1) above, the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual, and the term “relative” means a “relative” as that term is defined in ERISA section 3(15) (or a “member of the family” as that term is defined in Code section 4975(e)(6)), or a brother, a sister, or a spouse of a brother or a sister.
(e) On the basis of the prospectus and disclosure referred to in subparagraph (d), the second fiduciary referred to in subparagraph (d) approves such purchases and sales consistent with the responsibilities, obligations, and duties imposed on fiduciaries by Part 4 of Title I of ERISA. Such approval may be limited solely to the investment advisory and other fees paid by the mutual fund in relation to the fees paid by such plan and need not relate to any other aspects of such investments. In addition, such approval must be either:
(1) Set forth in such plan's plan documents or in the investment management agreement between the plan and the Morgan Stanley/Mitsubishi Entity,
(2) Indicated in writing before each purchase or sale, or
(3) Indicated in writing before commencement of a specified purchase or sale program in the shares of such investment company.
(f) The second fiduciary referred to in subparagraph (d) above, or any successor thereto, is notified of any change in any of the rates and fees referred to in subparagraph (d) and approves in writing the continuation of such purchases or sales and the continued holding of any investment company shares acquired by such plan prior to such change and still held by such plan. Such approval may be limited solely to the investment advisory and other fees paid by the mutual fund in relation to the fees paid by such plan and need not relate to any other aspects of such investment.
(g) Each Morgan Stanley/Mitsubishi Entity and Related Entity must satisfy ERISA section 408(b)(2) or Code section 4975(d)(2), as applicable.
The restrictions of ERISA sections 406 and 407(a), and the taxes imposed by Code section 4975(a) and (b), by reason of Code section 4975(c)(1), shall not apply to the acquisition, ownership, or sale of shares of a closed-end investment company which is registered under the Investment Company Act of 1940 Act (1940 Act) and is not a “small business investment company,” as defined in section 103 of the Small Business Investment Company Act of 1958, with respect to which a Related Entity is an investment adviser, by an employee benefit plan covering only employees of a Morgan Stanley/Mitsubishi Entity, provided that the following conditions are met (whether or not such investment company, investment adviser or any affiliated person thereof is a fiduciary with respect to the plan):
(a) The plan does not pay any investment management, investment advisory, or other fee or compensation to any Morgan Stanley/Mitsubishi Entity or Related Entity, except as expressly permitted herein. This condition does not preclude the payment of investment advisory fees by
(b) The plan does not pay a sales commission in connection with such acquisition or sale to any such investment company, or investment adviser, or any Morgan Stanley/Mitsubishi Entity or Related Entity; and
(c) All dealings between the plan and such investment company, the investment adviser, or any Morgan Stanley/Mitsubishi Entity or Related Entity, are on a basis no less favorable to the plan than such dealings are with other shareholders of the investment company.
The following definitions and special rules apply to this Part VI:
(a) The term “Morgan Stanley/Mitsubishi Entity” means Morgan Stanley & Co. LLC (MS) or one of its “affiliates,” or Mitsubishi UFJ Financial Group, Inc. (Mitsubishi UFJ) or one of its “affiliates,” acting as the plan fiduciary authorizing a transaction covered by this Part.
(b) An “affiliate” of a Morgan Stanley/Mitsubishi Entity or a Related Entity, which is defined below, includes the following:
(1) Any person directly or indirectly controlling, controlled by, or under common control with, MS or with Mitsubishi UFJ;
(2) Any officer, director, partner, employee, relative (as defined in ERISA section 3(15)), brother, sister, or spouse of a brother or sister, of a Morgan Stanley/Mitsubishi Entity or a Related Entity; and
(3) Any corporation or partnership of which a Morgan Stanley/Mitsubishi Entity or a Related Entity is an officer(s), director(s), or partner(s).
A person is not an affiliate of another person solely because such person has investment discretion over the other's assets. The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(c) An “agency cross transaction” is a securities transaction in which the same Related Entity acts as agent for both any seller and any buyer for the purchase or sale of a security.
(d) The term “covered transaction” means an action described in Section II (a), (b), or (c) of this Part VI.
(e) The term “effecting or executing a securities transaction” means the execution of a securities transaction as agent for another person and/or the performance of clearance, settlement, custodial, or other functions ancillary thereto.
(f) A plan fiduciary is independent of a Morgan Stanley/Mitsubishi Entity and a Related Entity only if the fiduciary has no relationship to and no interest in MS and no interest in Mitsubishi UFJ that might affect the exercise of such fiduciary's best judgment as a fiduciary.
(g) The term “profit” includes all charges relating to effecting or executing securities transactions, less reasonable and necessary expenses including reasonable indirect expenses (such as overhead costs) properly allocated to the performance of these transactions under generally accepted accounting principles.
(h) The term “securities transaction” means the purchase or sale of securities.
(i) The term “nondiscretionary trustee” of a plan means a trustee or custodian whose powers and duties with respect to any assets of the plan are limited to:
(1) The provision of nondiscretionary trust services to the plan, and
(2) Duties imposed on the trustee by any provision or provisions ERISA or the Code. The term “nondiscretionary trust services” means custodial services and services ancillary to custodial services, none of which services are discretionary. For purposes of this Part VI, a person does not fail to be a nondiscretionary trustee solely by reason of having been delegated, by the sponsor of a master or prototype plan, the power to amend such plan.
(j) The term “Related Entity” means MS or one of its “affiliates,” or Mitsubishi UFJ or one of its “affiliates,” where the entity is not the plan fiduciary authorizing a transaction covered by this Part.
If each condition in Section III below is either satisfied or not applicable under Section IV, the restrictions of ERISA section 406(b) and the taxes imposed by Code section 4975(a) and (b) by reason of Code section 4975(c)(1)(E) and (F) shall not apply to:
(a) a Morgan Stanley/Mitsubishi Entity, as a plan fiduciary, using its authority to cause the plan to pay a fee to a Related Entity, for effecting or executing securities transactions on behalf of the plan, but only to the extent that such transactions are not excessive, under the circumstances, in either amount or frequency;
(b) a Related Entity, as the agent in an agency cross transaction, acting on behalf of: (1) a plan with a Morgan Stanley/Mitsubishi Entity as the plan fiduciary that used its authority to cause the transaction; and (2) one or more other parties to the agency cross transaction; and
(c) the receipt of reasonable compensation by a Related Entity for effecting or executing an agency cross transaction on behalf of a plan with a Morgan Stanley/Mitsubishi Entity as the plan fiduciary that used its authority to cause the transaction, where the reasonable compensation is received from one or more other parties to the agency cross transaction.
Except to the extent otherwise provided in Section IV below, Section II applies only if the following conditions are satisfied:
(a) The Morgan Stanley/Mitsubishi Entity or Related Entity engaging in the covered transaction is not an administrator of the plan, or an employer any of whose employees are covered by the plan.
(b) The covered transaction is performed under a written authorization executed in advance by a fiduciary of each plan whose assets are involved in the transaction that is independent of MS and Mitsubishi UFJ.
(c) The authorization referred to above in subparagraph (b) of this Section III is terminable at will by the plan, without penalty to the plan, upon receipt by the authorized Morgan Stanley/Mitsubishi Entity of written notice of termination. A form expressly providing an election to terminate the authorization described in subparagraph (b) of this Section III with instructions on the use of the form must be supplied to the authorizing plan fiduciary no less than annually. The instructions for such form must include the following information:
(1) The authorization is terminable at will by the plan, without penalty to the plan, upon receipt by the authorized Morgan Stanley/Mitsubishi Entity of written notice from the authorizing plan fiduciary or other plan official having authority to terminate the authorization; and
(2) Failure to return the form will result in the continued authorization of the authorized Morgan Stanley/Mitsubishi Entity to engage in the covered transactions on behalf of the plan.
(d) Within three (3) months before an authorization is made, the authorizing plan fiduciary is furnished with any reasonably available information that the Morgan Stanley/Mitsubishi Entity
(e) The authorizing plan fiduciary is furnished with either:
(1) A confirmation slip for each securities transaction underlying a covered transaction within ten (10) business days after the securities transaction containing the information described in Rule 10b-10(a)(1-7) under the Securities and Exchange Act of 1934 (1934 Act), 17 CFR 240.10b-10; or
(2) At least once every three (3) months and not later than forty-five (45) days following the period to which it relates, a report disclosing:
(i) A compilation of the information that would be provided to a plan pursuant to subparagraph (e)(1) of this Section III during the three-month period covered by the report;
(ii) The total of all securities transaction-related charges incurred by the plan during such period in connection with such covered transactions; and
(iii) The amount of the securities transaction-related charges retained by the Related Entity and the amount of such charges paid to other persons for execution or other services.
For purposes of this subparagraph (e), the words “incurred by the plan” shall be construed to mean “incurred by the pooled fund” with respect to covered transactions engaged in on behalf of a pooled fund in which the plan participates.
(f) The authorizing plan fiduciary is furnished with a summary of the information required under subparagraph (e)(1) of this Section III at least once per year. The summary must be furnished within forty-five (45) days after the end of the period to which it relates, and must contain the following:
(1) The total of all securities transaction-related charges incurred by the plan during the period in connection with covered securities transactions.
(2) The amount of the securities transaction-related charges retained by the authorized Related Entity and the amount of these charges paid to other persons and their affiliates for execution or other services.
(3) A description of the Morgan Stanley/Mitsubishi Entity's brokerage placement practices, if such practices have materially changed during the period covered by the summary.
(4) (i) A portfolio turnover ratio, calculated in a manner which is reasonably designed to provide the authorizing plan fiduciary with the information needed to assist in discharging its duty of prudence. The requirements of this subparagraph (f)(4)(i) will be met if the “annualized portfolio turnover ratio”, calculated in the manner described in subparagraph (f)(4)(ii), is contained in the summary.
(ii) The “annualized portfolio turnover ratio” must be calculated as a percentage of the plan assets consisting of securities or cash over which the authorized Morgan Stanley/Mitsubishi Entity had discretionary investment authority, or with respect to which such Morgan Stanley/Mitsubishi Entity rendered, or had any responsibility to render, investment advice (the portfolio) at any time or times (management period(s)) during the period covered by the report. First, the “portfolio turnover ratio” (not annualized) is obtained by dividing:
(A) The lesser of the aggregate dollar amounts of purchases or sales of portfolio securities during the management period(s) by
(B) The monthly average of the market value of the portfolio securities during all management period(s). Such monthly average is calculated by totaling the market values of the portfolio securities as of the beginning and ending of each management period and as of the end of each month that ends within such period(s) and dividing the sum by the number of valuation dates so used. For purposes of this calculation, all debt securities whose maturities at the time of acquisition were one (1) year or less are excluded from both the numerator and the denominator. The “annualized portfolio turnover ratio” is then derived by multiplying the “portfolio turnover ratio” by an annualizing factor. The annualizing factor is obtained by dividing (C) the number twelve (12) by (D) the aggregate duration of the management period(s) expressed in months (and fractions thereof).
(iii) The information described in this subparagraph (f)(4) is not required to be furnished in any case where the authorized Morgan Stanley/Mitsubishi Entity acting as plan fiduciary has not exercised discretionary authority over trading in the plan's account during the period covered by the report.
For purposes of this subparagraph (f), the words, “incurred by the plan,” shall be construed to mean “incurred by the pooled fund” with respect to covered transactions engaged in on behalf of a pooled fund in which the plan participates.
(g) For an agency cross transaction with respect to which Section IV(a) of this Part VI does not apply, the following conditions must also be satisfied:
(1) The information required under Section III(d) or Section IV(c)(1)(ii) of this Part VI includes a statement to the effect that with respect to agency cross transactions, the entity effecting or executing the transactions will have a potentially conflicting division of loyalties and responsibilities regarding the parties to the transactions;
(2) The summary required under Section III(f) of this Part VI includes a statement identifying the total number of agency cross transactions during the period covered by the summary and the total amount of all commissions or other remuneration received or to be received from all sources by the Related Entity engaging in the transactions in connection with those transactions during the period;
(3) The Morgan Stanley/Mitsubishi entity has the discretionary authority to act on behalf of, and/or provide investment advice to, either:
(i) One or more sellers, or
(ii) One or more buyers with respect to the transaction, but not both.
(4) The agency cross transaction is a purchase or sale for no consideration other than cash payment against prompt delivery of a security for which market quotations are readily available; and
(5) The agency cross transaction is executed or effected at a price that is at or between the independent bid and independent ask prices for the security prevailing at the time of the transaction.
(h) A Morgan Stanley/Mitsubishi Entity serving as trustee (other than a nondiscretionary trustee) may only engage in a covered transaction with a plan that has total net assets with a value of at least $50 million. In the case of a pooled fund, the $50 million net asset requirement will be met, if 50 percent or more of the units of beneficial interest in such pooled fund are held by plans each of which has total net assets with a value of at least $50 million.
For purposes of the net asset tests described above, where a group of plans is maintained by a single employer or controlled group of employers, as defined in ERISA section 407(d)(7), the $50 million net asset requirement may be met by aggregating the assets of such
(i) The Morgan Stanley/Mitsubishi Entity serving as trustee (other than a nondiscretionary trustee) engaging in a covered transaction furnishes, at least annually, to the authorizing plan fiduciary of each plan the following:
(1) The aggregate brokerage commissions, expressed in dollars, paid by the plan to brokerage firms affiliated with such trustee;
(2) The aggregate brokerage commissions, expressed in dollars, paid by the plan to brokerage firms not affiliated with such trustee;
(3) The average brokerage commissions, expressed as cents per share, paid by the plan to brokerage firms affiliated with such trustee; and
(4) The average brokerage commissions, expressed as cents per share, paid by the plan to brokerage firms not affiliated with such trustee.
For purposes of this subparagraph (i), the words, “paid by the plan,” should be construed to mean “paid by the pooled fund” when the trustee engages in covered transactions on behalf of a pooled fund in which the plan participates.
(a) Certain agency cross transactions. Section III of this Part VI does not apply in the case of an agency cross transaction, provided that the Morgan Stanley/Mitsubishi Entity and/or Related Entity:
(1) Does not render investment advice to any plan for a fee within the meaning of ERISA section 3(21)(A)(ii) with respect to the transaction;
(2) Is not otherwise a fiduciary who has investment discretion with respect to any plan assets involved in the transaction,
(3) Does not have the authority to engage, retain or discharge any person who is or is proposed to be a fiduciary regarding any such plan assets.
(b) Recapture of profits. Section III(a) of this Part VI does not apply in any case where the entity engaging in a covered transaction returns or credits to the plan all profits earned by the entity in connection with the securities transactions associated with the covered transaction.
(c) Special rules for pooled funds. In the case of a covered transaction involving an account or fund for the collective investment of the assets of more than one plan (pooled fund):
(1) Section III (b), (c), and (d) of this Part VI do not apply if:
(i) The arrangement under which the covered transaction is performed is subject to the prior and continuing authorization, in the manner described in this subparagraph (c)(1), of an authorizing plan fiduciary with respect to each plan whose assets are invested in the pooled fund who is independent of the Morgan Stanley/Mitsubishi Entity and the Related Entity. The requirement that the authorizing plan fiduciary be independent shall not apply in the case of a plan covering only employees of a Morgan Stanley/Mitsubishi Entity, if the requirements of Section IV(c)(2)(i) and (ii) of this Part VI are met.
(ii) The authorizing plan fiduciary is furnished with any reasonably available information that the Morgan Stanley/Mitsubishi Entity engaging or proposing to engage in the covered transactions reasonably believes to be necessary for the authorizing plan fiduciary to determine whether the authorization should be given or continued, not less than thirty (30) days prior to implementation of the arrangement or material change thereto, including (but not limited to) a description of the Morgan Stanley/Mitsubishi Entity's brokerage placement practices, and, where requested, any reasonably available information regarding the matter upon the reasonable request of the authorizing plan fiduciary at any time.
(iii) In the event an authorizing plan fiduciary submits a notice in writing to the Morgan Stanley/Mitsubishi Entity engaging in or proposing to engage in the covered transaction objecting to the implementation of, material change in, or continuation of, the arrangement, the plan on whose behalf the objection was tendered is given the opportunity to terminate its investment in the pooled fund, without penalty to the plan, within such time as may be necessary to effect the withdrawal in an orderly manner that is equitable to all withdrawing plans and to the non-withdrawing plans. In the case of a plan that elects to withdraw under this subparagraph (c)(1)(iii), the withdrawal shall be effected prior to the implementation of, or material change in, the arrangement; but an existing arrangement need not be discontinued by reason of a plan electing to withdraw.
(iv) In the case of a plan whose assets are proposed to be invested in the pooled fund after the implementation of the arrangement and that has not authorized the arrangement in the manner described in subparagraphs (c)(1)(ii) and (c)(1)(iii) of this Section IV, such plan's investment in the pooled fund is subject to the prior written authorization of an authorizing fiduciary who satisfies the requirements of subparagraph (c)(1)(i).
(2) To the extent that Section III(a) of this Part VI prohibits any Morgan Stanley/Mitsubishi Entity or Related Entity from being the employer of employees covered by a plan investing in a pool managed by the Morgan Stanley/Mitsubishi Entity, Section III(a) of this Part VI does not apply if:
(i) The Morgan Stanley/Mitsubishi Entity is an “investment manager” as defined in ERISA section 3(38), and
(ii) Either
(A) The Morgan Stanley/Mitsubishi Entity returns or credits to the pooled fund all profits earned by the Related Entity in connection with all covered transactions engaged in by the Related Entity on behalf of the fund, or
(B) The pooled fund satisfies the requirements of Section IV(c)(3) of this Part VI.
(3) A pooled fund satisfies the requirements of this subparagraph for a fiscal year of the fund if:
(i) On the first day of such fiscal year, and immediately following each acquisition of an interest in the pooled fund during the fiscal year by any plan covering employees of any Morgan Stanley/Mitsubishi Entity or Related Entity, the aggregate fair market value of the interests in such fund of all plans covering employees of any Morgan Stanley/Mitsubishi Entity and Related Entity, acquired under this exemption and PTE 86-128, does not exceed 20 percent (20%) of the fair market value of the total assets of the fund; and
(ii) The aggregate brokerage commissions received by any Related Entity, in connection with covered transactions engaged under this exemption and PTE 86-128, on behalf of all pooled funds in which a plan covering employees of any Morgan Stanley/Mitsubishi Entity or Related Entity participates, do not exceed five percent (5%) of the total brokerage commissions received by any Related Entity from all sources in such fiscal year.
The restrictions of ERISA sections 406(a)(1)(A) and 406(b)(2), and the sanctions resulting from the application of Code section 4975, by reason of Code section 4975(c)(1)(A), shall not apply to the transactions described below, if the
(a) The purchase and sale of securities between an Index Fund or a Model-Driven Fund, as defined in Section IV(a) and (b), below, and another Index Fund or Model-Driven Fund (hereinafter, either referred as a Fund), at least one of which holds “plan assets” subject to the Act; or
(b) The purchase and sale of securities between a Fund and a Large Account, as defined in Section IV(e) of this Part VII, at least one of which holds “plan assets” subject to the Act, pursuant to a portfolio restructuring program, as defined in Section IV(f) of this Part VII, of the Large Account, where a Morgan Stanley entity is the Manager on one side of the cross-trade and a Mitsubishi entity is the Manager on the other side of the cross-trade. Each Manager must comply with each condition below and is deemed a Morgan Stanley/Mitsubishi Entity for purposes of Parts VIII and IX below.
Notwithstanding the foregoing, this Part VII shall apply to cross-trades between two (2) or more Large Accounts pursuant to a portfolio restructuring program, if such cross-trades occur as part of a single cross-trading program involving both Funds and Large Accounts for which securities are cross-traded solely because of the objective operation of the program.
(a) The cross-trade is executed at the closing price, as defined below in Section IV(h) of this Part VII.
(b) Any cross-trade of securities by a Fund occurs as a direct result of a “triggering event,” as defined in Section IV(d), and is executed no later than the close of the third business day following such “triggering event.”
(c) If the cross-trade involves a Model-Driven Fund, the cross-trade does not take place within three (3) business days following any change made by the Manager to the model underlying the Fund.
(d) The Manager has allocated the opportunity for all Funds or Large Accounts to engage in the cross-trade on an objective basis which has been previously disclosed to the authorizing fiduciaries of plan investors, and which does not permit the exercise of discretion by the Manager (
(e) No more than 20 percent (20%) of the assets of the Fund or Large Account at the time of the cross-trade is comprised of assets of plans maintained by the Manager for its own employees (the Manager Plan(s)) for which the Manager exercises investment discretion.
(f)(1) Cross-trades of equity securities involve only securities that are widely held, actively traded, and for which market quotations are readily available from independent sources that are engaged in the ordinary course of business of providing financial news and pricing information to institutional investors and/or to the general public, and are widely recognized as accurate and reliable sources for such information. For purposes of this requirement, the terms, “widely-held” and “actively-traded,” shall be deemed to include any security listed in an Index, as defined in Section IV(c); and
(2) Cross-trades of fixed-income securities involve only securities for which market quotations are readily available from independent sources that are engaged in the ordinary course of business of providing financial news and pricing information to institutional investors and/or to the general public and are widely recognized as accurate and reliable sources for such information.
(g) The Manager receives no brokerage fees or commissions because of the cross-trade.
(h) A plan's participation in the cross-trading program of a Manager, as a result of investments made in any Index or Model-Driven Fund that holds plan assets is subject to a written authorization executed in advance of such investment by a fiduciary of such plan that is independent of Morgan Stanley and Mitsubishi (the independent plan fiduciary).
For purposes of this Part VII, the requirement that the authorizing fiduciary be independent of the Manager shall not apply in the case of a Manager Plan.
(i) With respect to existing plan investors in any Index or Model-Driven Fund that holds plan assets as of the date this proposed exemption is granted, the independent fiduciary is furnished with a written notice, not less than forty-five (45) days before the implementation of the cross-trading program, that describes the Fund's participation in the cross-trading program of the Manager, provided that:
(1) Such notice allows each plan an opportunity to object to such plan's participation in the cross-trading program as a Fund investor by providing such plan with a special termination form;
(2) The notice instructs the independent plan fiduciary that failure to return the termination form to the Manager, by a specified date (which shall be at least thirty (30) days following such plan's receipt of the form) shall be deemed to be an approval by such plan of its participation in the Manager's cross-trading program as a Fund investor; and
(3) If the independent plan fiduciary objects to a plan's participation in the cross-trading program as a Fund investor by returning the termination form to the Manager by the specified date, such plan is given the opportunity to withdraw from each Index or Model-Driven Fund without penalty before the implementation of the cross-trading program, within such time as may be reasonably necessary to effectuate the withdrawal in an orderly manner.
(j) Prior to obtaining the authorization described in Section II(h) the notice described in Section II(i) of this Part VII, the following statement must be provided by the Manager to the independent plan fiduciary:
Investment decisions for the Fund (including decisions regarding which securities to buy or sell, how much of a security to buy or sell, and when to execute a sale or purchase of securities for the Fund) will not be based in whole or in part by the Manager on the availability of cross-trade opportunities and will be made prior to the identification and determination of any cross-trade opportunities. In addition, all cross-trades by a Fund will be based solely upon a “triggering event” as set forth in this Part VII. Records documenting each cross-trade transaction will be retained by the Manager.
(k) Before any authorization set forth in Section II(h) of this Part VII, and at the time of any notice described in Section II(i) of this Part VII, the independent plan fiduciary must be furnished with any reasonably available information necessary for the fiduciary to determine whether the authorization should be given, including (but not limited to) (i) a copy of this proposed exemption and the final exemption, if granted, (ii) an explanation of how the authorization may be terminated, (iii) detailed disclosure of the procedures to be implemented under the Manager's cross-trading practices (including the “triggering events” that will create the cross-trading opportunities, the independent pricing services that will be used by the Manager to price the cross-traded securities, and the methods that will be used for determining closing price), and (iv) any other reasonably available information regarding the matter that the authorizing plan fiduciary requests. The independent plan fiduciary must also be provided with a statement that the Manager will have a potentially conflicting division of
With respect to Funds that are added to the Manager's cross-trading program or changes to, or additions of, triggering events regarding Funds, following the authorizations described in Section II(h) or Section II(i) of this Part VII, the Manager shall provide a notice to each relevant independent plan fiduciary of each plan invested in the affected Funds before, or within ten (10) days following, such addition of Funds or change to, or addition of, triggering events, which contains a description of such Fund(s) or triggering event(s). Such notice will also include a statement that such plan has the right to terminate its participation in the cross-trading program and its investment in any Index Fund or Model-Driven Fund without penalty at any time, as soon as is necessary to effectuate the withdrawal in an orderly manner.
(l) At least annually, the Manager notifies the independent fiduciary for each plan that has previously authorized participation in the Manager's cross-trading program as a Fund investor, that such plan has the right to terminate its participation in the cross-trading program and its investment in any Index Fund or Model-Driven Fund that holds plan assets without penalty at any time, as soon as is necessary to effectuate the withdrawal in an orderly manner. This notice shall also provide each independent plan fiduciary with a special termination form and instruct the fiduciary that failure to return the form to the Manager by a specified date (which shall be at least thirty (30) days following such plan's receipt of the form) shall be deemed an approval of the subject plan's continued participation in the cross-trading program as a Fund investor. In lieu of providing a special termination form, the notice may permit the independent plan fiduciary to utilize another written instrument by the specified date to terminate a plan's participation in the cross-trading program; provided that in such case the notification explicitly discloses that a termination form may be obtained from the Manager upon request. Such annual re-authorization must provide information to the relevant independent plan fiduciary regarding each Fund in which a plan is invested, as well as explicit notification that such plan fiduciary may request and obtain disclosures regarding any new Funds in which such plan is not invested that are added to the cross-trading program, or any new triggering events (as defined in Section IV(d) of this Part VII) that may have been added to any existing Funds in which such plan is not invested, since the time of the initial authorization described in Section II(h) of this Part VII, or the time of the notification described in Section II(i) of this Part VII.
(m) With respect to a cross-trade involving a Large Account:
(1) The cross-trade is executed in connection with a portfolio restructuring program, as defined in Section IV(f) of this Part VII, with respect to all or a portion of the Large Account's investments which an independent fiduciary of the Large Account (other than in the case of any assets of a Manager Plan) has authorized the Manager to carry out or to act as a “trading adviser,” as defined in Section IV(g) of this Part VII, in carrying out a Large Account-initiated liquidation or restructuring of its portfolio;
(2) Before the cross-trade, a fiduciary of the Large Account who is independent of Morgan Stanley and Mitsubishi (other than in the case of any assets of a Manager Plan)
(i) Such authorization may be terminated at will by the Large Account upon receipt by the Manager of written notice of termination.
(ii) A form expressly providing an election to terminate the authorization, with instructions on the use of the form, is supplied to the authorizing Large Account fiduciary concurrent with the receipt of the written information describing the cross-trading program. The instructions for such form must specify that the authorization may be terminated at will by the Large Account, without penalty to the Large Account, upon receipt by the Manager of written notice from the authorizing Large Account fiduciary;
(3) All cross-trades made in connection with the portfolio restructuring program must be completed by the Manager within sixty (60) days of the initial authorization (or initial receipt of assets associated with the restructuring, if later) to engage in such restructuring by the Large Account's independent fiduciary, unless such fiduciary agrees in writing to extend this period for another thirty (30) days; and,
(4) No later than thirty (30) days after completion of the Large Account's portfolio restructuring program, the Large Account's independent fiduciary must be fully apprised in writing of all cross-trades executed in connection with the restructuring. Such writing shall include a notice that the Large Account's independent fiduciary may obtain, upon request, the information described in Section III(a) of this Part VII, subject to the limitations described in Section III(b) of this Part VII. However, if the program takes longer than sixty (60) days to complete, interim reports containing the transaction results must be provided to the Large Account fiduciary no later than fifteen (15) days following the end of the initial sixty (60) day period and the succeeding thirty (30) day period.
(a) The Manager maintains or causes to be maintained for a period of six (6) years from the date of each cross-trade the records necessary to enable the persons described below in subparagraph (b) of this Section III to determine whether the conditions of this Part VII have been met, including records which identify:
(1) On a Fund-by-Fund basis, the specific triggering events which result in the creation of the model prescribed output or trade list of specific securities to be cross-traded;
(2) On a Fund-by-Fund basis, the model prescribed output or trade list which describes:
(i) Which securities to buy or sell; and
(ii) How much of each security to buy or sell; in detail sufficient to allow an independent plan fiduciary to verify that each of the above decisions for the Fund was made in response to specific triggering events; and
(3) On a Fund-by-Fund basis, the actual trades executed by the Fund on a particular day and which of those trades resulted from triggering events.
Such records must be readily available to assure accessibility and maintained so that an independent fiduciary, or other persons identified below in subparagraph (b) of this Section III, may obtain them within a reasonable period of time. However, a prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of the Manager, the records are lost or destroyed prior to the end of the six-year period, and no party in interest other than the Manager shall be subject
(b)(1) Except as provided below in subparagraph (b)(2) of this Section III and notwithstanding any provisions of ERISA sections 504(a)(2) and (b), the records referred to in subparagraph (a) of this Section III are unconditionally available at their customary location for examination during normal business hours by:
(i) Any duly authorized employee or representative of the Department or the IRS,
(ii) Any fiduciary of a plan participating in a cross-trading program who has the authority to acquire or dispose of the assets of such plan, or any duly authorized employee or representative of such fiduciary,
(iii) Any contributing employer with respect to any plan participating in a cross-trading program or any duly authorized employee or representative of such employer, and
(iv) Any participant or beneficiary of any Manager Plan participating in a cross-trading program, or any duly authorized employee or representative of such participant or beneficiary.
(2) If, in the course of seeking to inspect records maintained by a Manager pursuant to this Section III, any person described below in subparagraph (b)(1)(ii) through (iv) of this Section III seeks to examine trade secrets, or commercial or financial information of the Manager that is privileged or confidential, and the Manager is otherwise permitted by law to withhold such information from such person, the Manager may refuse to disclose such information provided that, by the close of the thirtieth (30th) day following the request, the Manager gives a written notice to such person advising the person of the reasons for the refusal and that the Department of Labor may request such information.
(3) The information required to be disclosed to persons described above in subparagraph (b)(1)(ii) through (iv) of this Section III shall be limited to information that pertains to cross-trades involving a Fund or Large Account in which they have an interest.
The following definitions apply for purposes of this Part VII:
(a) “Index Fund”—Any investment fund, account or portfolio sponsored, maintained, trusteed, or managed by a Manager or an Affiliate, in which one or more investors invest, and:
(1) Which is designed to track the rate of return, risk profile and other characteristics of an Index, as defined in Section IV(c) of this Part VII, by either
(i) Replicating the same combination of securities which compose such Index, or
(ii) Sampling the securities which compose such Index based on objective criteria and data;
(2) For which the Manager does not use its discretion, or data within its control, to affect the identity or amount of securities to be purchased or sold;
(3) That either contains “plan assets” subject to ERISA, is an investment company registered under the 1940 Act, or contains assets of one or more institutional investors, which may include, but not be limited to, such entities as an insurance company separate account or general account, a governmental plan, a university endowment fund, a charitable foundation fund, a trust, or other fund which is exempt from taxation under Code section 501(a); and,
(4) That involves no agreement, arrangement, or understanding regarding the design or operation of the Index Fund which is intended to benefit a Manager or an Affiliate, or any party in which a Manager or an Affiliate may have an interest.
(b) “Model-Driven Fund”—Any investment fund, account or portfolio sponsored, maintained, trusteed, or managed by the Manager or an Affiliate in which one or more investors invest, and:
(1) Which is composed of securities the identity of which and the amount of which are selected by a computer model that is based on prescribed objective criteria using independent third-party data, not within the control of the Manager, to transform an Index, as defined in Section IV(c) of this Part VII;
(2) Which either contains “plan assets” subject to ERISA, is an investment company registered under the 1940 Act, or contains assets of one or more institutional investors, which may include, but not be limited to, such entities as an insurance company separate account or general account, a governmental plan, a university endowment fund, a charitable foundation fund, a trust, or other fund which is exempt from taxation under Code section 501(a); and
(3) That involves no agreement, arrangement, or understanding regarding the design or operation of the Model-Driven Fund or the utilization of any specific objective criteria which is intended to benefit a Manager or an Affiliate, or any party in which a Manager or an Affiliate may have an interest.
(c) “Index”—A securities index that represents the investment performance of a specific segment of the public market for equity or debt securities in the United States and/or foreign countries, but only if—
(1) The organization creating and maintaining the index is:
(i) Engaged in the business of providing financial information, evaluation, advice, or securities brokerage services to institutional clients,
(ii) A publisher of financial news or information, or
(iii) A public securities exchange or association of securities dealers; and,
(2) The index is created and maintained by an organization independent of the Manager, as defined in Section IV(i) of this Part VII; and,
(3) The index is a generally accepted standardized index of securities which is not specifically tailored for the use of the Manager.
(d) “Triggering Event”:
(1) A change in the composition or weighting of the Index underlying a Fund by the independent organization creating and maintaining the Index;
(2) A material amount of net change in the overall level of assets in a Fund, as a result of investments in and withdrawals from the Fund, provided that:
(i) Such material amount has either been identified in advance as a specified amount of net change relating to such Fund and disclosed in writing as a “triggering event” to an independent fiduciary of each plan having assets held in the Fund prior to, or within ten (10) days following, its inclusion as a “triggering event” for such Fund or the Manager has otherwise disclosed in the description of its cross-trading practices, pursuant to Section II(k) of this Part VII, the parameters for determining a material amount of net change, including any amount of discretion retained by the Manager that may affect such net change, in sufficient detail to allow the independent fiduciary to determine whether the authorization to engage in cross-trading should be given; and
(ii) Investments or withdrawals as a result of the Manager's discretion to invest or withdraw assets of a Manager Plan, other than a Manager Plan which is a defined contribution plan under which participants direct the investment of their accounts among various investment options, including such Fund, will not be taken into
(3) An accumulation in the Fund of a material amount of either:
(i) Cash which is attributable to interest or dividends on, and/or tender offers for, portfolio securities; or
(ii) Stock attributable to dividends on portfolio securities; provided that such material amount has either been identified in advance as a specified amount relating to such Fund and disclosed in writing as a “triggering event” to an independent fiduciary of each plan having assets held in the Fund prior to, or within ten (10) days after, its inclusion as a “triggering event” for such Fund, or the Manager has otherwise disclosed in the description of its cross-trading practices, pursuant to Section II(k) of this Part VII the parameters for determining a material amount of accumulated cash or securities, including any amount of discretion retained by the Manager that may affect such accumulated amount, in sufficient detail to allow the independent fiduciary to determine whether the authorization to engage in cross-trading should be given;
(4) A change in the composition of the portfolio of a Model-Driven Fund mandated solely by operation of the formulae contained in the computer model underlying the Model-Driven Fund where the basic factors for making such changes (and any fixed frequency for operating the computer model) have been disclosed in writing to an independent fiduciary of each plan having assets held in the Model-Driven Fund, prior to, or within ten (10) days after, its inclusion as a “triggering event” for such Model-Driven Fund; or
(5) A change in the composition or weighting of a portfolio for an Index Fund or a Model-Driven Fund which results from an independent fiduciary's direction to exclude certain securities or types of securities from the Fund, notwithstanding that such securities are part of the index used by the Fund.
(e) “Large Account”—Any investment fund, account or portfolio that is not an Index Fund or a Model-Driven Fund sponsored, maintained, trusteed (other than a Fund for which the Manager is a nondiscretionary trustee), or managed by the Manager, which holds assets of either:
(1) An employee benefit plan within the meaning of ERISA section 3(3) that has $50 million or more in total assets (for purposes of this requirement, the assets of one or more employee benefit plans maintained by the same employer, or controlled group of employers, may be aggregated provided that such assets are pooled for investment purposes in a single master trust);
(2) An institutional investor that has total assets in excess of $50 million, such as an insurance company separate account or general account, a governmental plan, a university endowment fund, a charitable foundation fund, a trust, or other fund which is exempt from taxation under Code section 501(a); or
(3) An investment company registered under the 1940 Act (
(f) “Portfolio restructuring program”—Buying and selling the securities on behalf of a Large Account in order to produce a portfolio of securities which will be an Index Fund or a Model-Driven Fund managed by the Manager or by another investment manager, or in order to produce a portfolio of securities the composition of which is designated by a party independent of the Manager, without regard to the requirements of Section IV(a)(3) or (b)(2) of this Part VII, or to carry out a liquidation of a specified portfolio of securities for the Large Account.
(g) “Trading adviser”—A Morgan Stanley or Mitsubishi entity whose role is limited with respect to a Large Account to the disposition of a securities portfolio in connection with a portfolio restructuring program that is a Large Account-initiated liquidation or restructuring within a stated period of time in order to minimize transaction costs. The Morgan Stanley or Mitsubishi Entity does not have discretionary authority or control with respect to any underlying asset allocation, restructuring or liquidation decisions for the account in connection with such transactions and does not render investment advice [within the meaning of 29 CFR 2510.3-21(c)] with respect to such transactions.
(h) “Closing price”—The price for a security on the date of the transaction, as determined by objective procedures disclosed to investors in advance and consistently applied with respect to securities traded in the same market, which procedures shall indicate the independent pricing source (and alternates, if the designated pricing source is unavailable) used to establish the closing price and the time frame after the close of the market in which the closing price will be determined.
(i) “Manager”—A Morgan Stanley entity acting as manager of a Fund or Large Account involved in one side of a cross-trade transaction involving a Mitsubishi entity acting as manager of a Fund or Large Account involved in the other side of the same cross-trade transaction; or a Mitsubishi entity acting as manager of a Fund or Large Account involved in one side of a cross-trade transaction involving a Morgan Stanley entity acting as manager of a Fund or Large Account involved in the other side of the same cross-trade transaction, where the Morgan Stanley entity and the Mitsubishi entity is:
(1) A bank or trust company, or any Affiliate thereof, which is supervised by a state or federal agency; or
(2) An investment adviser or any Affiliate thereof which is registered under the Investment Advisers Act of 1940.
(j) “Affiliate”—An affiliate of a Manager is:
(1) Any person, directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with the Manager:
(2) Any officer, director, employee, or relative of such Manager, or partner of any such Manager; or
(3) Any corporation or partnership of which such Manager is an officer, director, partner, or employee.
(k) “Control”—The power to exercise a controlling influence over the management or policies of a person other than an individual.
(l) “Relative”—A relative is a person that is defined in ERISA section 3(15) (or a “member of the family” as that term is defined in Code section 4975(e)(6)), or a brother, a sister, or a spouse of a brother or sister).
(m) “Nondiscretionary trustee”—A plan trustee whose powers and duties with respect to any assets of a plan are limited to:
(1) The provision of nondiscretionary trust services to such plan, and
(2) Duties imposed on the trustee by any provision or provisions of ERISA or the Code. The term “nondiscretionary trust services” means custodial services and services ancillary to custodial services, none of which services are discretionary. For purposes of this Part VII, a person who is otherwise a nondiscretionary trustee will not fail to be a nondiscretionary trustee solely by reason of having been delegated, by the sponsor of a master or prototype plan, the power to amend such plan.
(a) Notwithstanding the requirements above, the applicable Morgan Stanley/Mitsubishi Entity maintain(s) or cause(s) to be maintained for a period of six (6) years from the date of any transaction described herein, such records as are necessary to enable the persons described below in subparagraph (b) to determine whether the conditions of this proposed exemption were met, except that:
(1) If the records necessary to enable the persons described below in subparagraph (b)(1)(i)-(iv) to determine whether the conditions of the proposed exemption have been met are lost or destroyed, due to circumstances beyond the control of the Morgan Stanley/Mitsubishi Entity, then no prohibited transaction will be considered to have occurred solely on the basis of the unavailability of those records; and
(2) No party in interest with respect to a plan which engages in the covered transactions, other than Morgan Stanley and Mitsubishi, shall be subject to the civil penalty that may be assessed under ERISA section 502(i) Act or to the taxes imposed by Code section 4975(a) and (b) if the records have not been maintained or are not available for examination as required by subparagraph (b) below.
(b)(1) Except as provided below in subparagraph (b)(2), and notwithstanding the provisions of subsections (a)(2) and (b) of ERISA section 504, the records referred to above in subparagraph (a) are unconditionally available for examination during normal business hours at their customary location to the following persons or an authorized representative thereof:
(i) Any duly authorized employee or representative of the Department, the Internal Revenue Service (IRS), or the SEC; or
(ii) Any fiduciary of any plan that engages in the covered transactions, or any duly authorized employee or representative of such fiduciary; or
(iii) Any employer of participants and beneficiaries and any employee organization whose members are covered by any plan that engages in the transactions covered herein, or any authorized employee or representative of these entities; or
(iv) Any participant or beneficiary of any plan that engages in the transactions covered herein, or duly authorized representative of such participant or beneficiary;
(2) None of the persons described above in subparagraph (b)(1)(ii)-(iv) shall be authorized to examine the trade secrets of a Morgan Stanley/Mitsubishi Entity, or commercial or financial information, which is privileged or confidential; and
(3) Should a Morgan Stanley/Mitsubishi entity refuse to disclose information on the basis that such information is exempt from disclosure, pursuant to subparagraph (b)(2) above such Morgan Stanley/Mitsubishi Entity shall, by the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
(c) If an Applicable Class Exemption is amended, revised or revoked, or is subject to a new interpretation by the Department following the grant of this exemption, such change or interpretation will apply to the relevant transactions, conditions and/or terms in the relevant exemption herein.
(d)
(e) When relying on the relief in any Part of this exemption, the Morgan Stanley/Mitsubishi Entity must comply with the following “Impartial Conduct Standards”: (1) The Morgan Stanley/Mitsubishi Entity, at the time of the transaction, must act in the Best Interest of the plan. In this regard, acting in the Best Interest means acting with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, based on the investment objectives, risk tolerance, financial circumstances, and needs of affected plan, and not place the financial or other interests of the Morgan Stanley/Mitsubishi Entity, Related Entity, or other party ahead of the interests of the affected plan, or subordinate the plan's interests to their own; (2)(A) The compensation received, directly or indirectly, by the Morgan Stanley/Mitsubishi Entity and Related Entities for their services may not exceed reasonable compensation within the meaning of ERISA section 408(b)(2) and Code section 4975(d)(2); and (B) As required by the federal securities laws, the Morgan Stanley/Mitsubishi Entity must obtain the best execution of the investment transaction reasonably available under the circumstances; and (3) The Morgan Stanley/Mitsubishi Entity's statements to the plan about the covered transaction and other relevant matters must not be materially misleading at the time statements are made.
(f) All Morgan Stanley/Mitsubishi Entities utilizing the exemption will have policies and procedures in place that are prudently designed to ensure that the conditions of the exemption are met. The policies and procedures must be in place prior to the occurrence of the transaction that is the subject of the relevant relief.
(a) The term “Morgan Stanley/Mitsubishi Entity” means an entity acting as a plan fiduciary in a transaction described in Parts I through VII:
(1) That meets the definition of Morgan Stanley, as defined below; or
(2) That meets the definition of Mitsubishi, as defined below; or
(b) The term “Related Entity” means an entity that meets the definition of “Morgan Stanley/Mitsubishi Entity,” except that the entity is not acting as a fiduciary with respect to the transaction that is the subject of the exemptive relief described in Parts I through VII of the exemption, if granted.
(c) The term “Morgan Stanley” means Morgan Stanley & Co. LLC and any person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with Morgan Stanley & Co.
(d) The term “Mitsubishi” means Mitsubishi UFJ Financial Group, Inc., and any person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with Mitsubishi UFJ Financial Group, Inc.
(e) For purposes of Part IX (c) and (d) above, the term “control” means the power to exercise a controlling influence over the management or
(f) The term “Rating Agency” or collectively, “Rating Agencies” means a credit rating agency that:
(1) Is currently recognized by the Securities and Exchange Commission (SEC) as a nationally recognized statistical ratings organization (NRSRO);
(2) Has indicated on its most recently filed SEC Form NRSRO that it rates “issuers of asset-backed securities;” and
(3) Has had, within a period not exceeding twelve (12) months prior to the initial issuance of the securities, at least three (3) “qualified ratings engagements.” A “qualified ratings engagement” is one:
(i) Requested by an issuer or underwriter of securities in connection with the initial offering of the securities;
(ii) For which the credit rating agency is compensated for providing ratings;
(iii) Which is made public to investors generally; and
(iv) Which involves the offering of securities of the type that would be granted relief by the certain underwriter exemptions (the Underwriter Exemptions).
(g) The term “Applicable Class Exemption” means PTE 75-1, Part III; PTE 75-1, Part IV; PTE 77-3; PTE 77-4; PTE 79-13; PTE 86-128; or PTE 2002-12.
Signed at Washington, DC.
Employee Benefits Security Administration (EBSA), Labor.
Notice of technical correction.
This document makes a technical correction to Prohibited Transaction Exemption (PTE) 2016-10 granted to the Royal Bank of Canada (D-11868) on October 28, 2016.
Mr. Joseph Brennan of the Department, telephone (202) 693-8456. (This is not a toll-free number).
On October 28, 2016, the Department published PTE 2016-10 in the
The Department granted PTE 2016-10 to protect Covered Plans
In January 2017, the trial court in France acquitted RBCTC of the aiding and abetting the tax fraud charge, so the exemptive relief provided in PTE 2016-01 was unnecessary. However, RBCTC recently informed the Department that the French prosecutor has appealed the lower court's acquittal and the case is now being heard de novo as a new trial by a French appellate court. According to RBCTC, the alleged crime, the parties, and the case numbers remain the same as the District Court of Paris case that is defined as the “Conviction” in PTE 2016-01. RBCTC has requested confirmation from the Department that the relief provided in PTE 2016-10 would be available for one year, if RBCTC were ultimately convicted by the French appellate court.
As noted above, PTE 2016-10 is intended to protect Covered Plans from harm if RBCTC were convicted for the alleged crime in France. This same harm would arise whether RBCTC is convicted for the same crime, stemming from the same conduct, in a French appellate court or “the District Court of Paris.” Therefore, to ensure that Covered Plans are protected from any harm that would arise from the appellate court's conviction of RBCTC, the Department is revising the definition of “Conviction” in PTE 2016-10 to refer to “the potential judgment of conviction against RBCTC Bahamas for aiding and abetting tax fraud to be entered in France in the Court of Appeal, French
RBC represents to the Department that to the best of RBC's knowledge, there have been no material changes since September 2, 2015, the date of RBC's application for PTE 2016-10, that are relevant to that application or the technical corrections set forth herein, other than changes in RBC's number of clients and assets under management RBC makes these representations with the caveat that, as a large global financial institution, it has been subject to a variety of legal proceedings, including civil claims and lawsuits, regulatory examinations, investigations, audits, and requests for information. To the best of its knowledge at this time, however, RBC does not believe that the outcome of any current investigation or other such proceeding would cause the exemption to be unavailable. Moreover, no affiliate of RBC has been convicted of any crime described in section I(g) of the QPAM Exemption and, to the best of RBC's knowledge, neither RBC nor any affiliate has entered into a deferred prosecution or non-prosecution agreement since September 2, 2015.
The Department notes that it is making this technical correction based upon RBC's certified representation that since September 2, 2015: (1) there have in fact been no material changes other than those changes noted above; (2) no affiliate of RBC has been convicted of any crime described in section I(g) of the QPAM Exemption, other than the conviction covered under PTE 2016-10; and (3) neither RBC nor any affiliate of RBC has entered into a deferred prosecution or non-prosecution agreement. If, at any time, RBC discovers any of these representations is no longer true, RBC must immediately contact the Department and submit a written statement that provides the Department with the complete details on the circumstances discovered.
The Department is not taking a position regarding whether the outcome of any proceedings will cause the exemption to be unavailable and also notes that the availability of PTE 2016-10 is conditioned upon RBC's compliance with all of the conditions included therein, including the condition that expressly states: “During the effective period of this temporary exemption, RBC: (1) Immediately discloses to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) that RBC or an affiliate enters into with the U.S Department of Justice, to the extent such DPA or NPA involves conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA.” As noted in the preceding paragraph, if RBC discovers that RBC or any RBC affiliate has entered into a DPA or NPA at any time since September 2, 2015, RBC must inform the Department promptly upon RBC or its affiliates' discovery of such fact.
“(a) The term “Conviction” means the potential judgment of conviction against RBCTC Bahamas for aiding and abetting tax fraud to be entered in France in the Court of Appeal, French Special Prosecutor No. 1120392066, French Investigative Judge No. JIRSIF/11/12 or another court of competent jurisdiction”
Pursuant to the Commission's regulations,
This proceeding involves an application seeking a twenty-year license renewal of Facility Operating License NPF-58 to authorize Energy Harbor Nuclear Corp. to operate Perry Nuclear Power Plant, Unit 1 until November 7, 2046. In response to a notice published in the
The Board is comprised of the following Administrative Judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule.
Rockville, Maryland.
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 request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Grants and Cooperative Agreement Provisions.”
Submit comments by January 10, 2024. 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 Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2023-0072 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 request for renewal of an existing collection of information to OMB for review entitled, “Grants and Cooperative Agreement Provisions.” 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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The documents identified in the following table are available to interested persons through ADAMS.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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2.
This Notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is providing notice that a hearing format and procedural schedule have been established in this proceeding. This notice informs the public of the hearing format and procedural schedule.
Submit notices of intervention electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
Pursuant to the discussion at the December 4, 2023 prehearing videoconference, the parties agree that the hearing should be conducted by written submission of material only.
To promote the efficient resolution of the remaining issues, the parties will file briefs and supporting evidence at the same time. The parties' briefs shall address each of the two remaining disputed issues of fact identified by the Commission and explain how the evidence presented supports or does not support the three elements of a claim of undue or unreasonable discrimination under 39 U.S.C. 403(c).
Complainant's initial brief and the Postal Service's answering brief may not exceed 20 pages. Complainant's reply brief may not exceed 10 pages. Cover pages, tables of contents, tables of authorities, signature blocks, addenda containing statutes, rules or regulations, and exhibits are excluded from the page limits. Motions to exceed the applicable length limitations will be granted only for compelling reasons.
The schedule for the submission of briefs and evidence shall be as follows:
All submissions must be filed electronically on the Commission's docket by 4:30 p.m. Eastern time on the date due. If either party seeks an extension of a filing deadline, that party must make a good faith effort to contact the opposing party to find a mutually agreeable new date before filing a motion for extension of time. This good faith effort requires the moving party to place at least one telephone call or send one email message to the opposing party. Any motion for extension of time must state whether the opposing party consents to the requested extension.
Any motion by a party requesting oral cross-examination of any witness, or to make any other change to the hearing format, must be filed no later than February 16, 2024, if the Postal Service does not request written cross-examination of any of Complainant's reply witnesses, or February 26, 2024, if the Postal Service does request written cross-examination of any of Complainant's reply witnesses. A motion requesting oral cross-examination must identify the witness statement(s) at issue, explain why oral cross-examination is necessary to clarify the witness' response to written cross-examination, and state what additional information or clarification may be adduced through oral cross-examination that would be helpful to resolve this case.
1. The parties and counsel shall follow the hearing format and schedule established by this Presiding Officer's Ruling.
2. The Secretary shall arrange for publication of the hearing schedule in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states
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This Notice will be published in the
To replace existing delivery vehicles nationwide that have reached the end of their service life, the U.S. Postal Service has determined that it will implement the Preferred Alternative set forth in its September 29, 2023, Final Supplemental Environmental Impact Statement (SEIS). The Preferred Alternative is the purchase and deployment of a mixed fleet of Commercial Off-the-Shelf and Next Generation Delivery Vehicles. Of the total quantity of 106,480 vehicles to be procured under this SEIS, 62 percent would have battery electric powertrains.
This Updated Record of Decision (Updated ROD) supersedes the Record of Decision issued on February 23, 2022, and became effective when it was signed by the Postal Service's Senior Vice President for Facilities and Fleet Management on December 5, 2023.
Interested parties may view the Updated ROD, Final SEIS and all prior NEPA documents related to this procurement at
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 28, 2023, it filed with the Postal Regulatory Commission a
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, December 13, 2023 at 10:00 a.m. (ET).
The meeting will be held in Auditorium LL-002 at the Commission's headquarters, 100 F Street, NE, Washington, DC 20549 and will be simultaneously webcast on the Commission's website at
This meeting will begin at 10:00 a.m. (ET) and will be open to the public. Seating will be on a first-come, first-served basis. Visitors will be subject to security checks. The meeting will be webcast on the Commission's website at
1. The Commission will consider whether to adopt amendments to the standards applicable to covered clearing agencies for U.S. Treasury securities regarding their membership requirements and risk management and whether to adopt amendments to the broker-dealer customer protection rule regarding margin held at covered clearing agencies for U.S. Treasury securities.
2. The Commission will consider whether to approve the 2024 Final Budget and Accounting Support Fee for the Public Company Accounting Oversight Board
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 163 (17 CFR 230.163) provides an exemption from section 5(c) (15 U.S.C. 77e(c)) under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 425 (17 CFR 230.425) under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Securities Act Rule 173 (17 CFR 230.173) provides a notice of registration to investors who purchased securities in a registered offering under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form CB (17 CFR 239.800) is a document filed in connection with a tender offer for a foreign private issuer. This form is used to report an issuer tender offer conducted in compliance with Exchange Act Rule 13e-4(h)(8) (17 CFR 240.13e-4(h)(8)), a third-party tender offer conducted in compliance with Exchange Act Rule 14d-1(c) (17 CFR 240.14d-1(c)) and a going private transaction conducted in accordance with Rule 13e-3(g)(6) (17 CFR 240.13e-3(g)(6)). Form CB is also used by a subject company pursuant to Exchange Act Rule 14e-2(d) (17 CFR 240.14e-2(d)). This information is made available to the public. Information provided on Form CB is mandatory. Form CB takes approximately 0.5 hours per response to prepare and is filed by approximately 58 respondents annually. We estimate that 25% of the 0.5 hours per response (0.125 hours) is prepared by the respondent for an annual reporting burden of 7 hours (0.125 hours per response × 58 responses).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Pursuant to section 19(b)(1)
The Exchange proposes to modify the NYSE American Options Fee Schedule (“Fee Schedule”) regarding the Firm Monthly Fee Cap. The Exchange proposes to implement the fee change effective November 27, 2023.
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those 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 parts of such statements.
The purpose of this filing is to amend the Fee Schedule to modify the Firm Monthly Fee Cap. The Exchange proposes to implement the rule change on November 15, 2023.
The Firm Monthly Fee Cap is set forth in Section I.I. of the Fee Schedule.
The Exchange proposes to raise the Firm Monthly Fee Cap to $250,000 per month per Firm. To effect this change, the Exchange proposes to modify Section I.I. to replace references to a $200,000 cap with references to a $250,000 cap.
The Exchange believes that the proposed change, despite increasing the amount of the Firm Monthly Fee Cap, would continue to incent Firms to direct order flow to the Exchange to receive the benefits of a fee cap on Manual transaction fees (including fees for QCC transactions).
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange operates in a highly competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
There are currently 17 registered options exchanges competing for order flow. Based on publicly-available information, and excluding index-based options, no single exchange has more than 16% of the market share of executed volume of multiply-listed equity and ETF options trades.
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, in response to fee changes. Accordingly, competitive forces constrain options exchange transaction fees. Stated otherwise, changes to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow.
The proposed increase to the Firm Monthly Fee Cap is reasonable because the Exchange believes the fee cap, although higher, would continue to incent Firms to direct order flow to the Exchange to receive the benefits of capped fees for their Manual transactions (including QCC transactions). The Exchange also believes the proposed change is reasonable because the proposed fee cap amount would be applicable to all Firms. In addition, although the proposed change would raise the amount of the Firm Monthly Fee Cap, it would continue to offer Firms the opportunity to qualify for capped fees on Manual transactions (including QCC transactions), which the Exchange believes provides Firms with a benefit not offered by at least one other options exchange.
To the extent the proposed change continues to attract greater volume and liquidity, the Exchange believes the proposed change would improve the Exchange's overall competitiveness and strengthen its market quality for all market participants. In the backdrop of the competitive environment in which the Exchange operates, the proposed rule change is a reasonable attempt by the Exchange to increase the depth of its market and improve its market share relative to its competitors. The Exchange's fees are constrained by intermarket competition, as market participants can choose to direct their order flow to any of the 17 options exchanges. The Exchange believes that proposed rule change is designed to continue to incent market participants to direct liquidity and, in particular, Manual (including QCC) transactions, to the Exchange, and, to the extent they continue to be incentivized to aggregate their trading activity at the Exchange, that increased liquidity could promote market depth, price discovery and improvement, and enhanced order execution opportunities for all market participants.
The Exchange believes the proposed rule change is an equitable allocation of its fees and credits. The proposed change is equitable because the proposal is based on the amount and type of business transacted on the Exchange. The Exchange also believes that the proposed modification of the Firm Monthly Fee Cap is equitable because it would be available to all Firms equally and would continue to provide the same fee cap amount for all Firms. The Exchange also believes that the proposed rule change is equitable with respect to non-Firm market participants because the Firm Monthly Fee Cap would not be as meaningful for Customers and because Market Makers are offered other incentives to reduce
The Exchange believes that the modification of the Firm Monthly Fee Cap is not unfairly discriminatory because the fee cap amount, as proposed, would continue to be applicable to all similarly situated Firms, any of which could continue to be incentivized to direct order flow to the Exchange to qualify for the fee cap. Moreover, the proposed change to the Firm Monthly Fee Cap is not unfairly discriminatory because it would continue to apply the same fee cap amount to all Firms. The Exchange notes that offering the Firm Monthly Fee Cap, as proposed, to Firms but not to other market participants is not unfairly discriminatory because the Firm Monthly Fee Cap would not be as meaningful for Customers and because Market Makers are offered other incentives to reduce transaction fees.
To the extent the proposed change continues to attract Manual (including QCC) transactions to the Exchange, this increased order flow would continue to make the Exchange a more competitive venue for order execution. Thus, the Exchange believes the proposed rule change would improve market quality for all market participants on the Exchange and, as a consequence, attract more order flow to the Exchange, thereby improving market-wide quality and price discovery. The resulting increased volume and liquidity would provide more trading opportunities and tighter spreads to all market participants and thus would promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
In accordance with section 6(b)(8) of the Act, the Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Instead, as discussed above, the Exchange believes that the proposed change would encourage the submission of additional liquidity to a public exchange, thereby promoting market depth, price discovery and transparency and enhancing order execution opportunities for all market participants. As a result, the Exchange believes that the proposed change furthers the Commission's goal in adopting Regulation NMS of fostering integrated competition among orders, which promotes “more efficient pricing of individual stocks for all types of orders, large and small.”
The Exchange believes that the proposed rule change reflects this competitive environment because it modifies the Exchange's fees in a manner designed to continue to incent market participants to direct trading interest to the Exchange, to provide liquidity and to attract order flow. To the extent that Firms are incentivized to utilize the Exchange as a primary trading venue for all transactions, all of the Exchange's market participants should benefit from the improved market quality and increased opportunities for price improvement. The Exchange further believes that the proposed change could promote competition between the Exchange and other execution venues, including those that do not offer a cap on Firm fees,
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the MIAX Emerald Options Exchange Fee Schedule (the “Fee Schedule”) to amend fees for Purge Ports.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to amend the fees for Purge Ports, which is a function enabling Market Makers
The Exchange initially filed the proposal on September 29, 2023 (EMERALD-2023-26) (the “Initial Proposal”).
Unlike other options exchanges that charge fees for Purge Ports on a per port basis,
The Exchange now proposes to amend the fee for Purge Ports to align more closely with other exchanges who charge on a per port basis by providing two (2) Purge Ports per Matching Engine for a monthly flat fee of $600 per month per Matching Engine. The only difference with a per port structure is that Market Makers receive two (2) Purge Ports per Matching Engine for the same proposed monthly fee, rather than being charged a separate fee for each Purge Port. The Exchange proposes to charge the proposed fee for Purge Ports per Matching Engine, instead on a per Purge Port basis, due to its System architecture which provides two (2) Purge Ports per Matching Engine for redundancy purposes. In addition, the proposed fee is lower than the comparable fee charged by competing exchanges that also charge on a per port basis, notwithstanding that the Exchange is providing up to two (2) Purge Ports for that same lower fee.
Similar to a per port charge, Market Makers are able to select the Matching Engines that they want to connect to,
A logical port represents a port established by the Exchange within the Exchange's System for trading and billing purposes. Each logical port grants a Member
Purge Ports are designed to assist Market Makers
The Exchange operates highly performant systems with significant throughput and determinism which allows participants to enter, update and cancel quotes at high rates. Market Makers may currently cancel individual quotes through the existing functionality, such as through the use of a mass cancel message by which a Market Maker may request that the Exchange remove all or a subset of its quotations and block all or a subset of its new inbound quotations.
Similarly, Market Makers may also use cancel-on-disconnect control when they experience a disruption in connection to the Exchange to automatically cancel all quotes, as configured or instructed by the Member or Market Maker.
The Exchange believes that market participants benefit from a dedicated purge mechanism for specific Market Makers and to the market as a whole. Market Makers will have the benefit of efficient risk management and purge tools. The market will benefit from potential increased quoting and liquidity as Market Makers may use Purge Ports to manage their risk more robustly. Only Market Makers that request Purge Ports would be subject to the proposed fees, and other Market Makers can continue to operate in exactly the same manner as they do today without dedicated Purge Ports, but with the additional purging capabilities described above.
The proposed fees are immediately effective.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange supports the proposed fee change with the below justification because a similar justification was used in a recent 2023 proposal filed with the Commission by another national securities exchange, Phlx, to adopt fees for purge ports, which the Commission deemed acceptable by not suspending that filing during the applicable 60-day review period.
The Exchange believes that the proposed rule change would promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market because offering Market Makers optional service and flexible fee structures which promotes choice, flexibility, efficiency, and competition. The Exchange believes Purge Ports enhance Market Makers' ability to manage quotes, which would, in turn, improve their risk controls to the benefit of all market participants. The Exchange believes that Purge Ports foster cooperation and coordination with persons engaged in facilitating transactions in securities because designating Purge Ports for purge messages may encourage better use of such ports. This may, concurrent with the ports that carry quotes and other information necessary for market making activities, enable more efficient, as well as fair and reasonable, use of Market Makers' resources. Similar connectivity and functionality is offered by options exchanges, including the Exchange's own affiliated options exchanges, and other equities exchanges.
Purge Ports do not relieve Market Makers of their quoting obligations or firm quote obligations under Regulation NMS Rule 602.
The Exchange is not the only exchange to offer this functionality and to charge associated fees.
The Exchange believes it is reasonable to charge $600 per month for Purge Ports as proposed because such ports were specially developed to allow Market Makers to send a single message to cancel multiple quotes, thereby assisting firms in effectively managing risk. The Exchange also believes that a Member that chooses to utilize Purge Ports may, in the future, reduce their need for additional ports by consolidating cancel messages to their dedicated Purge Port and thus freeing up some capacity of the existing logical ports and, therefore, allowing for increased message traffic without paying for additional logical ports. Purge Ports provide the ability to cancel multiple quotes with a single message over a dedicated port, and, therefore, may create efficiencies for firms and provide a more efficient solution for them based on their risk management needs. In addition, Purge Port requests may cancel quotes submitted over numerous ports and contain added functionality to purge only a subset of these quotes. Effective risk management is important both for individual market participants that choose to utilize risk features provided by the Exchange, as well as for the market in general. As a result, the Exchange believes that it is appropriate to charge fees for such functionality as doing so aids in the maintenance of a fair and orderly market.
The Exchange also believes that its ability to set fees for Purge Ports is subject to significant substitution-based forces because Market Makers are able to rely on currently available services both free and those they receive when using existing trading protocols. If the value of the efficiency introduced through the Purge Port functionality is not worth the proposed fees, Market Makers will simply continue to rely on the existing functionality and not pay for Purge Ports. In that regard, Market Makers may currently cancel individual quotes through the existing functionality, such as through the use of a mass cancel message by which a Market Maker may request that the Exchange remove all or a subset of its quotations and block all or a subset of its new inbound quotations. Already Market Makers can also cancel quotes individually and by utilizing Exchange protocols that allow them to develop proprietary systems that can send cancel messages at a high rate.
Further, like Purge Ports, Members may also cancel all or a subset of its orders in the System, by firm name or by MPID, over their existing ports, or by
Similarly, Market Makers may use cancel-on-disconnect control when they experience a disruption in their connection to the Exchange and immediately cancel all pending quotes in the Exchange's System.
The Exchange also believes that offering Purge Ports at the Matching Engine level promotes risk management across the industry, and thereby facilitates investor protection. Some market participants, in particular the larger firms, could and do build similar risk functionality (as described above) in their trading systems that permit the flexible cancellation of quotes entered on the Exchange at a high rate. Offering Matching Engine level protections ensures that such functionality is widely available to all firms, including smaller firms that may otherwise not be willing to incur the costs and development work necessary to support their own customized mass cancel functionality.
As noted above, the Exchange is not the only exchange to offer dedicated Purge Ports, and the proposed rate is lower than that charged by other exchanges for similar functionality. The Exchange also believes that moving to a per Matching Engine fee is reasonable due to the Exchange's architecture that provides it the ability to provide two (2) Purge Ports per Matching Engine for a fee that would still be lower than competing exchanges that charge on a per port basis. Generally speaking, restricting the Exchange's ability to charge fees for these services discourages innovation and competition. Specifically in this case, the Exchange's inability to offer similar services to those offered by other exchanges, and charge reasonable and equitable fees for such services, would put the Exchange at a significant competitive disadvantage and, therefore, serve to restrict competition in the market—especially when other exchanges assess comparable fees higher than those proposed by the Exchange.
The Exchange believes that the proposed Purge Port fees are equitable because the proposed Purge Ports are completely voluntary as they relate solely to optional risk management functionality.
The Exchange also believes that the proposed amendments to its Fee Schedule are not unfairly discriminatory because they will apply uniformly to all Market Makers that choose to use the optional Purge Ports. Purge Ports are completely voluntary and, as they relate solely to optional risk management functionality, no Market Maker is required or under any regulatory obligation to utilize them. All Market Makers that voluntarily select this service option will be charged the same amount for the same services. All Market Makers have the option to select any connectivity option, and there is no differentiation among Market Makers with regard to the fees charged for the services offered by the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Purge Ports are completely voluntary and are available to all Market Makers on an equal basis at the same cost. While the Exchange believes that Purge Ports provide a valuable service, Market Makers can choose to purchase, or not purchase, these ports based on their own determination of the value and their business needs. No Market Maker is required or under any regulatory obligation to utilize Purge Ports. Accordingly, the Exchange believes that Purge Ports offer appropriate risk management functionality to firms that trade on the Exchange without imposing an unnecessary or inappropriate burden on competition.
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price the Purge Ports is constrained by competition among exchanges that offer similar functionality. As discussed, there are currently a number of similar offers available to market participants for higher fees at other exchanges. Proposing fees that are excessively higher than established fees for similar functionality would simply serve to reduce demand for the Purge Ports, which as discussed, market participants are under no obligation to utilize. It could also cause firms to shift trading to other exchanges that offer similar functionality at a lower cost, adversely impacting the overall trading on the Exchange and reducing market share. In this competitive environment, potential purchasers are free to choose which, if any, similar product to purchase to satisfy their need for risk management. As a result, the Exchange believes this proposed rule change permits fair competition among national securities exchanges.
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own purge port functionality and lower their prices to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant, in that it does not differentiate between Market Makers. The proposal would allow any interested Market Makers to purchase Purge Port functionality based on their business needs.
The Exchange received one comment letter on the proposal.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange 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”),
The Exchange proposes to a proposed rule change to list and trade shares of the iShares Ethereum Trust (the “Trust”) under Nasdaq Rule 5711(d) (“Commodity-Based Trust Shares”). The shares of the Trust are referred to herein as the “Shares.”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to list and trade the Shares under Nasdaq Rule 5711(d),
The Shares will be issued by the Trust, a Delaware statutory trust. The Trust will operate pursuant to a trust agreement (the “Trust Agreement”) between the Sponsor, BlackRock Fund Advisors (the “Trustee”) as the trustee of the Trust and will appoint a Delaware Trustee of the Trust (the “Delaware Trustee”) by such time that the Registration Statement is effective. The Trust issues Shares representing fractional undivided beneficial interests in its net assets. The assets of the Trust consist primarily of ether held by a custodian on behalf of the Trust. Coinbase Custody Trust Company, LLC (the “Ether Custodian”), is the custodian for the Trust's ether holdings; and another entity will be the custodian for the Trust's cash holdings (the “Cash Custodian” and together with the Ether Custodian, the “Custodians”) and the administrator of the Trust (the “Trust Administrator”). Under the Trust Agreement, the Trustee may delegate all or a portion of its duties to any agent, and has delegated the bulk of the day-to-day responsibilities to the Trust Administrator and certain other administrative and record-keeping functions to its affiliates and other agents. The Trust is not an investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
The investment objective of the Trust is to reflect generally the performance of the price of ether. The Trust seeks to reflect such performance before payment of the Trust's expenses and liabilities. The Shares are intended to constitute a simple means of making an investment similar to an investment in ether rather than by acquiring, holding and trading ether directly on a peer-to-peer or other basis or via a digital asset exchange. The Shares have been designed to remove the obstacles represented by the complexities and operational burdens involved in a direct investment in ether, while at the same time having an intrinsic value that reflects, at any given time, the investment exposure to the price of ether owned by the Trust at such time, less the Trust's expenses and liabilities. Although the Shares are not the exact equivalent of a direct investment in ether, they provide investors with an alternative method of achieving investment exposure to the price of ether through the public securities market, which may be more familiar to them.
An investment in the Shares is backed by ether held by the Ether Custodian on behalf of the Trust. The Ether Custodian will keep custody of all of the Trust's ether, other than that which is maintained in the Trading Balance with the Prime Broker, in accounts that are required to be segregated from the assets held by the Ether Custodian as principal and the assets of its other customers (the “Vault Balance”), with any remainder of the Vault Balance held as part of a “hot storage”.
The net asset value of the Trust will be equal to the total assets of the Trust, including but not limited to, all ether and cash less total liabilities of the Trust, each determined by the Trustee pursuant to policies established from time to time by the Trustee or its affiliates or otherwise described herein. The methodology used to calculate an index (the “Index”) price to value ether in determining the net asset value of the Trust may not be deemed consistent with U.S. generally accepted accounting principles (“GAAP”).
The Sponsor has the exclusive authority to determine the Trust's net asset value, which it has delegated to the Trustee under the Trust Agreement. The Trustee has delegated to the Trust Administrator the responsibility to calculate the net asset value of the Trust and the NAV, based on a pricing source selected by the Trustee. In determining the Trust's net asset value, the Trust Administrator values the ether held by the Trust based on the Index, unless otherwise determined by the Sponsor in its sole discretion. The CME CF Ether-Dollar Reference Rate -New York Variant (the “CF Benchmarks Index”) shall constitute the Index, unless the CF Benchmarks Index is not available or the Sponsor in its sole discretion determines not to use the CF Benchmarks Index as the Index. If the CF Benchmarks Index is not available or the Sponsor determines, in its sole discretion, that the CF Benchmarks Index should not be used, the Trust's holdings may be fair valued in accordance with the policy approved by the Sponsor.
The Trust's periodic financial statements may not utilize net asset value or NAV to the extent the methodology used to calculate the Index is deemed not to be consistent with GAAP. For purposes of the Trust's periodic financial statements, the Trust will utilize a pricing source that is consistent with GAAP, as of the financial statement measurement date. The Sponsor will determine in its sole discretion the valuation sources and policies used to prepare the Trust's financial statements in accordance with GAAP.
The Sponsor may declare a suspension of the calculation of the NAV of the Trust under certain circumstances.
On each Business Day, as soon as practicable after 4:00 p.m. Eastern Time (“ET”), the Trust Administrator evaluates the ether held by the Trust as reflected by the CF Benchmarks Index and determines the net asset value of the Trust and the NAV. For purposes of making these calculations, a Business Day means any day other than a day when Nasdaq is closed for regular trading.
The CF Benchmarks Index employed by the Trust is calculated on each Business Day by aggregating the notional value of ether U.S. dollar trading activity across major ether spot platforms. The CF Benchmarks Index is designed and administered in accordance with IOSCO Principles for Financial Benchmarks. The
If the CF Benchmarks Index is not available or the Sponsor determines, in its sole discretion, that the CF Benchmarks Index should not be used, the Trust's holdings may be fair valued in accordance with the policy approved by the Sponsor.
The Trust is intended to provide a way for Shareholders to obtain exposure to ether by investing in the Shares rather than by acquiring, holding and trading ether directly on a peer-to-peer or other basis or via a digital asset exchange. An investment in Shares of the Trust is not the same as an investment directly in ether on a peer-to-peer or other basis or via a digital asset exchange.
The Trust issues and redeems baskets (“Baskets”)
Ethereum is free software that is hosted on computers distributed throughout the globe. It employs an array of computer code-based logic, called a protocol, to create a unified understanding of ownership, commercial activity, and economic logic. This allows users to engage in commerce without the need to trust any of its participants or counterparties. Ethereum code creates verifiable and unambiguous rules that assign clear, strong property rights to create a platform for unrestrained business formation and free exchange. No single intermediary or entity operates or controls the Ethereum network (referred to as “decentralization”), the transaction validation and recordkeeping infrastructure of which is collectively maintained by a disparate user base. The Ethereum network allows people to exchange tokens of value, or ether (“ETH”), which are recorded on a distributed public recordkeeping system or ledger known as a blockchain (the “Ethereum Blockchain”), and which can be used to pay for goods and services, including computational power on the Ethereum network, or converted to fiat currencies, such as the U.S. dollar, at rates determined on digital asset exchanges or in individual peer-to-peer transactions. Furthermore, by combining the recordkeeping system of the Ethereum Blockchain with a flexible scripting language that is programmable and can be used to implement sophisticated logic and execute a wide variety of instructions, the Ethereum network is intended to act as a foundational infrastructure layer on top of which users can build their own custom software programs, as an alternative to centralized web servers. In theory, anyone can build their own custom software programs on the Ethereum network. In this way, the Ethereum network represents a project to expand blockchain deployment beyond a peer-to-peer private money system into a flexible, distributed alternative computing infrastructure that is available to all. On the Ethereum network, ETH is the unit of account that users pay for the computational resources consumed by running their programs.
Up to now, U.S. retail investors have lacked a U.S. regulated, U.S. exchange-traded vehicle to gain exposure to ETH. Instead, current options include: (i) facing the counter-party risk, legal uncertainty, technical risk, and complexity associated with accessing spot ether or (ii) over-the-counter ether funds (“OTC ETH Funds”) with high management fees and potentially volatile premiums and discounts. Meanwhile, investors in other countries, including Germany, Switzerland and France, are able to use more traditional exchange listed and traded products (including exchange-traded funds holding physical ETH) to gain exposure to ETH. Investors across Europe have access to products which trade on regulated exchanges and provide exposure to a broad array of spot crypto assets. U.S. investors, by contrast, are left with fewer and more risky means of getting ether exposure.
To this point, the lack of an ETP that holds spot ETH (a “Spot ETH ETP”) exposes U.S. investor assets to significant risk because investors that would otherwise seek cryptoasset exposure through a Spot ETH ETP are forced to find alternative exposure through generally riskier means. For example, investors in OTC ETH Funds are not afforded the benefits and protections of regulated Spot ETH ETPs, resulting in retail investors suffering losses due to drastic movements in the premium/discount of OTC ETH Funds. An investor who purchased the largest OTC ETH Fund in January 2021 and held the position at the end of 2022 would have suffered a 30% loss due to the change in the premium/discount, even if the price of ETH did not change. Many retail investors likely suffered losses due to this premium/discount in OTC ETH Fund trading; all such losses could have been avoided if a Spot ETH ETP had been available. Additionally,
The Commission has historically approved or disapproved exchange filings to list and trade series of Trust Issued Receipts, including spot based Commodity-Based Trust Shares, on the basis of whether the listing exchange has in place a comprehensive surveillance sharing agreement with a regulated market of significant size related to the underlying commodity to be held.
As such, the regulated market of significant size test does not require that the spot ether market be regulated in order for the Commission to approve this proposal, and precedent makes clear that an underlying market for a spot commodity or currency being a regulated market would actually be an exception to the norm. These largely unregulated currency and commodity markets do not provide the same protections as the markets that are subject to the Commission's oversight, but the Commission has consistently looked to surveillance sharing agreements with the underlying futures market in order to determine whether such products were consistent with the Act. With this in mind, the Bitcoin Futures market, as defined below, is the proper market to consider in determining whether there is a related regulated market of significant size.
Further to this point, the Exchange notes that the Commission has approved proposals related to the listing and trading of funds that would primarily hold Bitcoin Futures that are registered under the Securities Act of 1933 (“1933 Act”) instead of the 1940 Act.
Meanwhile, the Commission has continued to disapprove proposals to list and trade Spot Bitcoin ETPs that would hold spot bitcoin on the seemingly conflicting basis that the CME Bitcoin Futures market is not a regulated market of significant size.
As mentioned above, on October 2, 2023 the SEC approved nine ETH-based ETFs for trading.
In the context of other digital asset-based ETF and ETP proposals for Bitcoin, the SEC has sought to justify treating futures-based ETFs differently from spot-based ETFs because of (i) distinctions between the regulations under which the two products would be registered (under the 1940 Act for digital-asset futures ETFs and 1933 Act for spot digital-asset ETPs), and (ii) the existence of regulation and surveillance-sharing over the CME digital-asset futures market through the Intermarket Surveillance Group (“ISG”), as compared to the spot market for those digital assets.
While the 1940 Act has certain added investor protections that the 1933 Act does not require, these protections do not seek to allay harms arising from underlying assets or markets of assets that ETFs hold, such as the potential for fraud or manipulation in such markets. In other words, the Sponsor does not believe that the application of the 1940 Act supports the purported justifications the Commission has made in denying other spot digital asset ETPs. Instead, the 1940 Act seeks to remedy certain abusive practices in the management of investment companies such as ETFs, and thus places certain restrictions on ETFs and ETF sponsors. The 1940 Act explicitly lists out the types of abuses it seeks to prevent, and places certain restrictions related to
As to (i) above, the Sponsor believes that because the CME ETH futures market is priced based on the underlying spot ETH market, any fraud or manipulation in the spot market would necessarily affect the price of ETH futures, thereby affecting the net asset value of an ETP holding spot ETH or an ETF holding ETH futures, as well as the price investors pay for such product's shares. Accordingly, either CME surveillance can detect spot-market fraud that affects both futures ETFs and spot ETPs, or that surveillance cannot do so for either type of product. Having approved ETH futures ETFs in part on the basis of such surveillance, the Commission has clearly determined that CME surveillance can detect spot-market fraud that would affect spot ETPs, and the Sponsor thus believes that it must also approve spot ETH ETPs on that basis.
In summary, both the Exchange and the Sponsor believe that this proposal and the included analysis are sufficient to establish that the CME ETH Futures market represents a regulated market of significant size as it relates both to the CME ETH Futures market and to the spot ETH market and that this proposal should be approved.
Additionally, the Sponsor believes that the distinctions between the 1940 Act and the 1933 Act, and the surveillance-sharing available for the CME ETH futures market versus the spot ETH market, are not meaningful in the context of ETH-based ETF and ETP proposals, and that such reasoning cannot be a basis for the Commission treating ETH futures ETFs differently from spot ETH ETPs like the Trust. The Sponsor believes that the Commission's approval of ETH futures ETFs means it must also approve spot ETH ETPs like the Trust.
CME began offering trading in Ether Futures in February 2021. Each contract represents 50 ETH and is based on the CME CF Ether-Dollar Reference Rate.
In order for any proposed rule change from an exchange to be approved, the Commission must determine that, among other things, the proposal is consistent with the requirements of section 6(b)(5) of the Act, specifically including: (i) the requirement that a national securities exchange's rules are designed to prevent fraudulent and manipulative acts and practices;
In order to meet this standard in a proposal to list and trade a series of Commodity-Based Trust Shares, the Commission requires that an exchange demonstrate that there is a comprehensive surveillance sharing agreement in place
The Commission has also recognized that the “regulated market of significant size” standard is not the only means for satisfying section 6(b)(5) of the act, specifically providing that a listing exchange could demonstrate that “other means to prevent fraudulent and manipulative acts and practices” are sufficient to justify dispensing with the requisite surveillance sharing agreement.
In light of the similarly high correlation between spot ETH/CME ETH Futures and spot bitcoin/CME Bitcoin Futures (.998 vs. .999, respectively),
The CME “comprehensively surveils futures market conditions and price movements on a real time and ongoing basis in order to detect and prevent price distortions, including price distortions caused by manipulative efforts.” Thus, the CME's surveillance can reasonably be relied upon to capture the effects on the CME futures market caused by a person attempting to manipulate the proposed futures ETP by manipulating the price of CME futures contracts, whether that attempt is made by directly trading on the CME futures market or indirectly by trading outside of the CME futures market. As such, when the CME shares its surveillance information with Arca, the information would assist in detecting and deterring fraudulent or manipulative misconduct related to the non cash assets held by the proposed ETP.
The assumptions from this statement are also true for CME ETH Futures, a number of which have recently been approved by the Commission.
As such, the part (a) of the significant market test outlined above is satisfied and that common membership in ISG between the Exchange and CME would assist the listing exchange in detecting and deterring misconduct in the Shares in the same way that it would be for the Bitcoin Futures ETPs, the ETH Futures ETPs and Spot Bitcoin ETPs.
The Exchange and Sponsor also believe that trading in the Shares would not be the predominant force on prices in the CME ETH Futures market or spot market for a number of reasons. First, because the Trust would not hold CME ETH Futures contracts, the only way that it could be the predominant force on prices in that market is through the spot markets that CME ETH Futures contracts use for pricing.
As noted above, the Commission also permits a listing exchange to demonstrate that “other means to prevent fraudulent and manipulative acts and practices” are sufficient to justify dispensing with the requisite surveillance-sharing agreement. The Exchange and Sponsor believe that such conditions are present.
The Exchange is also proposing to take additional steps to those described above to supplement its ability to obtain information that would be helpful in detecting, investigating, and deterring fraud and market manipulation in the Commodity-Based Trust Shares.
On June 8, 2023, the Exchange reached an agreement on terms with Coinbase, Inc. (“Coinbase”) to enter into a Surveillance-Sharing Agreement, and the associated term sheet became effective as of June 16, 2023. Based on this agreement on terms, the Exchange and Coinbase will finalize and execute a definitive agreement that the parties expect to be executed prior to allowing trading of the Commodity-Based Trust Shares. Trading of ETH on Coinbase represents a significant portion of US-based ETH trading. The Sponsor has stated to the Exchange that, based on publicly available data reported by spot ether platforms active in the U.S. market, trading on Coinbase has represented approximately 66% of US-dollar to ether trading on such U.S.-based platforms out of total YTD volume across these platforms of approximately U.S. $93 billion, as of October 16, 2023.
The Surveillance Sharing Agreement is expected to be a bilateral surveillance-sharing agreement between Nasdaq and Coinbase that is intended to supplement the Exchange's market surveillance program. The Surveillance Sharing Agreement is expected to have the hallmarks of a surveillance-sharing agreement between two members of the ISG, which would give the Exchange supplemental access to data regarding spot ether trades on Coinbase where the Exchange determines it is necessary as part of its surveillance program for the Commodity-Based Trust Shares. This means that the Exchange expects to receive market data for orders and trades from Coinbase, which it will utilize in surveillance of the trading of Commodity-Based Trust Shares. In addition, the Exchange can request further information from Coinbase related to spot ether trading activity on the Coinbase exchange platform, if the Exchange determines that such information would be necessary to detect and investigate potential manipulation in the trading of the Commodity-Based Trust Shares.
The Exchange believes that the proposal is designed to protect investors and the public interest. Over the past several years, U.S. investor exposure to ETH through OTC ETH Funds is greater than $5 billion. With that growth, so too has grown the quantifiable investor protection issues to U.S. investors through premium/discount volatility and management fees for OTC ETH Funds. The Exchange believes that, as described above, the concerns related to the prevention of fraudulent and manipulative acts and practices have been sufficiently addressed to be consistent with the Act and, to the extent that the Commission disagrees with that assertion, such concerns are now at the very least outweighed by investor protection concerns. As such, the Exchange believes that approving this proposal (and comparable proposals) provides the Commission with the opportunity to allow U.S. investors with access to ETH in a regulated and transparent exchange-traded vehicle that would act to limit risk to U.S. investors by: (i) reducing premium and discount volatility; (ii) reducing management fees through meaningful competition; (iii) reducing risks and costs associated with investing in ETH Futures ETFs and operating companies that are imperfect proxies for ETH exposure; and (iv) providing an alternative to custodying spot ETH.
Exposure to ether through an ETP also presents certain advantages for retail investors compared to buying spot ether directly. The most notable advantage from the Sponsor's perspective is the elimination of the need for an individual retail investor to either manage their own private keys or to hold ether through a cryptocurrency exchange that lacks sufficient protections. Typically, retail exchanges hold most, if not all, retail investors' ether in “hot” (internet connected) storage and do not make any commitments to indemnify retail investors or to observe any particular cybersecurity standard. Meanwhile, a retail investor holding spot ether directly in a self-hosted wallet may suffer from inexperience in private key management (
The website for the Trust, which will be publicly accessible at no charge, will contain the following information: (a) the prior business day's NAV; (b) the prior business day's Official Closing Price; (c) calculation of the premium or discount of such Official Closing Price against such NAV; (d) data in chart form displaying the frequency distribution of discounts and premiums of the Official Closing Price against the NAV, within appropriate ranges for each of the four previous calendar quarters (or for the life of the Trust, if shorter); (e) the prospectus; and (f) other applicable quantitative information. The Trust Administrator will also disseminate the Trust's holdings on a daily basis on the Trust's website. The price of ether will be made available by one or more major market data vendors, updated at least every 15 seconds during the Regular Market Session. Information about the CF Benchmarks Index, including key elements of how the CF Benchmarks Index is calculated, will be publicly available at
One or more major market data vendors will provide an IIV per Share updated every 15 seconds, as calculated by the Exchange or a third-party financial data provider during the Exchange's Regular Market Session (9:30 a.m. to 4:00 p.m. (ET)). The IIV will be calculated by using the prior day's closing NAV per Share as a base and updating that value during the Exchange's Regular Market Session to reflect changes in the value of the Trust's NAV during the trading day.
The IIV disseminated during the Exchange's Regular Market Session should not be viewed as an actual real time update of the NAV, which will be calculated only once at the end of each trading day. The IIV will be widely disseminated on a per Share basis every 15 seconds during the Exchange's Regular Market Session by one or more major market data vendors. In addition, the IIV will be available through online information services.
The NAV for the Trust will be calculated by the Trust Administrator once a day and will be disseminated daily to all market participants at the same time. Quotation and last sale information regarding the Shares will be disseminated through the facilities of the Consolidated Tape Association (“CTA”).
The Shares will be subject to Nasdaq Rule 5711(d)(vi), which sets forth the initial and continued listing criteria applicable to Commodity-Based Trust Shares. The Exchange will obtain a representation that the Trust's NAV will be calculated daily and will be made available to all market participants at the same time. Upon termination of the Trust, the Shares will be removed from listing. The Delaware Trustee, will be a trust company having substantial capital and surplus and the experience and facilities for handling corporate trust business, as required under Nasdaq Rule 5711(d)(vi)(D) and no change will be made to the Delaware Trustee without prior notice to and approval of the Exchange.
As required in Nasdaq Rule 5711(d)(vii), the Exchange notes that any registered market maker (“Market Maker”) in the Shares must file with the Exchange, in a manner prescribed by the Exchange, and keep current a list identifying all accounts for trading the underlying commodity, related futures or options on futures, or any other related derivatives, which the registered Market Maker may have or over which it may exercise investment discretion. No registered Market Maker in the Shares shall trade in the underlying commodity, related futures or options on futures, or any other related derivatives, in an account in which a registered Market Maker, directly or indirectly, controls trading activities, or has a direct interest in the profits or losses thereof, which has not been reported to the Exchange as required by Nasdaq Rule 5711(d). In addition to the existing obligations under Exchange rules regarding the production of books and records, the registered Market Maker in the Shares shall make available to the Exchange such books, records or other information pertaining to transactions by such entity or any limited partner, officer or approved person thereof, registered or non-registered employee affiliated with such entity for its or their own accounts in the underlying commodity, related futures or options on futures, or any other related derivatives, as may be requested by the Exchange.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. The Exchange will allow trading in the Shares from 4:00 a.m. to 8:00 p.m. (ET). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. The Shares of the Trust will conform to the initial and continued listing criteria set forth in Nasdaq Rule 5711(d).
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. The Exchange will halt trading in the Shares under the conditions specified in Nasdaq Rules 4120 and 4121, including without limitation the conditions specified in Nasdaq Rule 4120(a)(9) and the trading pauses under Nasdaq Rules 4120(a)(11) and (12).
Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) the extent to which trading is not occurring in the ether underlying the Shares; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
If the IIV or the value of the underlying futures contract is not being disseminated as required, the Exchange may halt trading during the day in which the interruption to the dissemination of the IIV or the value of the underlying futures contract occurs. If the interruption to the dissemination of the IIV or the value of the underlying ether persists past the trading day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption.
In addition, if the Exchange becomes aware that the NAV with respect to the Shares is not disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants.
The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of Shares on the Exchange will be subject to the Exchange's surveillance procedures for derivative products. The Exchange will require the Trust to represent to the Exchange that it will advise the Exchange of any failure by the Trust to comply with the continued listing requirements, and, pursuant to its obligations under section 19(g)(1) of the Exchange Act, the Exchange will surveil for compliance with the continued listing requirements. If the Trust is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the Nasdaq 5800 Series. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Additionally, on June 8, 2023, the Exchange reached an agreement on terms with Coinbase to enter into a Surveillance Sharing Agreement, and the associated term sheet became effective as of June 16, 2023. Based on this agreement on terms, the Exchange and Coinbase will finalize and execute a definitive agreement that the parties expect to be executed prior to allowing trading of the Commodity-Based Trust Shares. Trading of ether on Coinbase represents a significant portion of US-based ether trading. The Sponsor has stated to the Exchange that, based on publicly available data reported by spot ether platforms active in the U.S. market, trading on Coinbase has represented approximately 66% of US-dollar to ETH trading on such U.S.-based platforms out of total YTD volume
The Surveillance Sharing Agreement is expected to be a bilateral surveillance-sharing agreement between Nasdaq and Coinbase that is intended to supplement the Exchange's market surveillance program. The Surveillance Sharing Agreement is expected to have the hallmarks of a surveillance-sharing agreement between two members of the ISG, which would give the Exchange supplemental access to data regarding spot ether trades on Coinbase where the Exchange determines it is necessary as part of its surveillance program for the Commodity-Based Trust Shares. This means that the Exchange expects to receive market data for orders and trades from Coinbase, which it will utilize in surveillance of the trading of Commodity-Based Trust Shares. In addition, the Exchange can request further information from Coinbase related to spot ether trading activity on the Coinbase exchange platform, if the Exchange determines that such information would be necessary to detect and investigate potential manipulation in the trading of the Commodity-Based Trust Shares.
Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (1) the procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) Section 10 of Nasdaq General Rule 9, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (3) how information regarding the IIV is disseminated; (4) the risks involved in trading the Shares during the Pre-Market and Post Market Sessions when an updated IIV will not be calculated or publicly disseminated; (5) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information. The Information Circular will also discuss any exemptive, no action and interpretive relief granted by the Commission from any rules under the Act.
Additionally, the Information Circular will reference that the Trust is subject to various fees and expenses described in the Draft Registration Statement. The Information Circular will also disclose the trading hours of the Shares. The Information Circular will disclose that information about the Shares will be publicly available on the Trust's website.
The Exchange believes that the proposal is consistent with section 6(b) of the Act
The Commission has approved numerous series of Trust Issued Receipts,
In order for a proposal to list and trade a series of Commodity-Based Trust Shares to be deemed consistent with the Act, the Commission requires that an exchange demonstrate that there is a comprehensive surveillance-sharing agreement in place with a regulated market of significant size. Both the Exchange and CME are members of ISG.
The Commission has also recognized that the “regulated market of significant size” standard is not the only means for satisfying section 6(b)(5) of the act, specifically providing that a listing exchange could demonstrate that “other means to prevent fraudulent and manipulative acts and practices” are sufficient to justify dispensing with the requisite surveillance-sharing agreement.
The significant market test requires that there is a reasonable likelihood that a person attempting to manipulate the ETP would also have to trade on that market to manipulate the ETP, so that a surveillance-sharing agreement would assist the listing exchange in detecting and deterring misconduct.
In light of the similarly high correlation between spot ETH/CME ETH Futures and spot bitcoin/CME Bitcoin Futures
The CME “comprehensively surveils futures market conditions and price movements on a real time and ongoing basis in order to detect and prevent price distortions, including price distortions caused by manipulative efforts.” Thus, the CME's surveillance can reasonably be relied upon to capture the effects on the CME futures market caused by a person attempting to manipulate the proposed futures ETP by manipulating the price of CME futures contracts, whether that attempt is made by directly trading on the CME futures market or indirectly by trading outside of the CME futures market. As such, when the CME shares its surveillance information with Arca, the information would assist in detecting and deterring fraudulent or manipulative misconduct related to the non cash assets held by the proposed ETP.
The assumptions from this statement are also true for CME ETH Futures. CME ETH Futures pricing is based on pricing from spot ETH markets. The statement from the Teucrium Approval that “CME's surveillance can reasonably be relied upon to capture the effects on the CME BTC futures market caused by a person attempting to manipulate the proposed futures ETP by manipulating the price of CME BTC futures contracts . . . indirectly by trading outside of the CME BTC futures market,” makes clear that the Commission believes that CME's surveillance can capture the effects of trading on the relevant spot markets on the pricing of CME BTC Futures. This same logic would extend to CME ETH Futures markets where CME's surveillance would be able to capture the effects of trading on the relevant spot markets on the pricing of CME ETH Futures. This was further acknowledged in the Grayscale lawsuit when Judge Rao stated “. . . the Commission in the Teucrium order recognizes that the futures prices are influenced by the spot prices, and the Commission concludes in approving futures ETPs that any fraud on the spot market can be adequately addressed by the fact that the futures market is a regulated one . . .” The Exchange agrees with the Commission on this point and notes that the pricing mechanism applicable to the Shares is similar to that of the CME ETH Futures. This view is also consistent with the Sponsor's research.
As such, the Exchange believes that part (a) of the significant market test outlined above is satisfied and that common membership in ISG between the Exchange and CME would assist the listing exchange in detecting and deterring misconduct in the Shares in the same way that it would be for both Bitcoin Futures ETPs and Spot Bitcoin ETPs.
The Exchange and Sponsor also believe that trading in the Shares would not be the predominant force on prices in CME ETH Futures market or spot market for a number of reasons. First, because the Trust would not hold CME ETH Futures contracts, the only way that it could be the predominant force on prices in that market is through the spot markets that CME ETH Futures contracts use for pricing.
As noted above, the Commission also permits a listing exchange to demonstrate that “other means to prevent fraudulent and manipulative acts and practices” are sufficient to justify dispensing with the requisite surveillance-sharing agreement. The Exchange and Sponsor believe that such conditions are present.
The Exchange is also proposing to take additional steps to those described above to supplement its ability to obtain information that would be helpful in detecting, investigating, and deterring fraud and market manipulation in the Commodity-Based Trust Shares.
On June 8, 2023 the Exchange reached an agreement on terms with Coinbase, to enter into a Surveillance-Sharing Agreement, and the associated term sheet became effective as of June 16, 2023. Based on this agreement on terms, the Exchange and Coinbase will finalize and execute a definitive agreement that the parties expect to be executed prior to allowing trading of the Commodity-Based Trust Shares. Trading of ETH on Coinbase represents a significant portion of US-based ETH trading. The Sponsor has stated to the Exchange that, based on publicly available data reported by spot ether platforms active in the U.S. market, trading on Coinbase has represented approximately 66% of US-dollar to ether trading on such U.S.-based platforms out of total YTD volume across these platforms of approximately U.S. $93 billion, as of October 16, 2023.
The Surveillance Sharing Agreement is expected to be a bilateral surveillance-sharing agreement between Nasdaq and Coinbase that is intended to supplement the Exchange's market surveillance program. The Surveillance Sharing Agreement is expected to have the hallmarks of a surveillance-sharing agreement between two members of the ISG, which would give the Exchange supplemental access to data regarding spot ether trades on Coinbase where the Exchange determines it is necessary as part of its surveillance program for the Commodity-Based Trust Shares. This means that the Exchange expects to receive market data for orders and trades from Coinbase, which it will utilize in surveillance of the trading of Commodity-Based Trust Shares. In addition, the Exchange can request further information from Coinbase related to spot ether trading activity on the Coinbase exchange platform, if the Exchange determines that such information would be necessary to detect and investigate potential manipulation in the trading of the Commodity-Based Trust Shares.
The Exchange believes that the proposal is designed to protect investors and the public interest. Over the past several years, U.S. investor exposure to ETH through OTC ETH Funds is greater than $5 billion. With that growth, so too has grown the quantifiable investor protection issues to U.S. investors through premium/discount volatility and management fees for OTC ETH Funds. The Exchange believes that, as described above, the concerns related to the prevention of fraudulent and manipulative acts and practices have been sufficiently addressed to be consistent with the Act and, to the extent that the Commission disagrees with that assertion, such concerns are now at the very least outweighed by investor protection concerns. As such, the Exchange believes that approving this proposal (and comparable proposals) provides the Commission with the opportunity to allow U.S. investors with access to ETH in a regulated and transparent exchange-traded vehicle that would act to limit risk to U.S. investors by: (i) reducing premium and discount volatility; (ii) reducing management fees through meaningful competition; (iii) reducing risks and costs associated with investing in ETH Futures ETFs and operating companies that are imperfect proxies for ETH exposure; and (iv) providing an alternative to custodying spot ETH.
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed on the Exchange pursuant to the initial and continued listing criteria in Nasdaq Rule 5711(d). The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of the Shares through the Exchange will be subject to the Exchange's surveillance procedures for derivative products, including Commodity-Based Trust Shares. The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Trust or the Shares to comply with the continued listing requirements, and, pursuant to its obligations under section 19(g)(1) of the Exchange Act, the Exchange will surveil for compliance with the continued listing requirements. If the Trust or the Shares are not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the Nasdaq 5800 Series. The Exchange may obtain information regarding trading in the Shares and listed ETH derivatives via the ISG, from other exchanges who are members or affiliates of the ISG, or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
The Exchange also believes that the proposal promotes market transparency in that a large amount of information is currently available about ETH and will be available regarding the Trust and the Shares. In addition to the price transparency of the CF Benchmarks Index, the Trust will provide information regarding the Trust's ETH holdings as well as additional data regarding the Trust.
The website for the Trust, which will be publicly accessible at no charge, will contain the following information: (a) the prior business day's NAV; (b) the prior business day's Official Closing Price; (c) calculation of the premium or discount of such Official Closing Price against such NAV; (d) data in chart form displaying the frequency distribution of discounts and premiums of the Official Closing Price against the NAV, within appropriate ranges for each of the four previous calendar quarters (or for the life of the Trust, if shorter); (e) the prospectus; and (f) other applicable quantitative information. The Trust Administrator will also disseminate the Trust's holdings on a daily basis on the Trust's website. The price of ether will be made available by one or more major market data vendors, updated at least every 15 seconds during the Regular Market Session. Information about the CF Benchmarks Index, including key elements of how the CF Benchmarks Index is calculated, will be publicly available at
One or more major market data vendors will provide an IIV per Share updated every 15 seconds, as calculated by the Exchange or a third-party financial data provider during the Exchange's Regular Market Session (9:30 a.m. to 4:00 p.m. (ET)). The IIV will be calculated by using the prior day's closing NAV per Share as a base and updating that value during the Exchange's Regular Market Session to reflect changes in the value of the Trust's NAV during the trading day.
The IIV disseminated during the Exchange's Regular Market Session should not be viewed as an actual real time update of the NAV, which will be calculated only once at the end of each trading day. The IIV will be widely disseminated on a per Share basis every 15 seconds during the Exchange's Regular Market Session by one or more major market data vendors. In addition, the IIV will be available through online information services.
The NAV for the Trust will be calculated by the Trust Administrator once a day and will be disseminated daily to all market participants at the same time. Quotation and last sale information regarding the Shares will be disseminated through the facilities of the CTA.
Quotation and last sale information for ether is widely disseminated through a variety of major market data vendors, including Bloomberg and Reuters, as well as CF Benchmarks. Information relating to trading, including price and volume information, in ETH is available from major market data vendors and from the exchanges on which ETH is traded. Depth of book information is also available from ETH exchanges. The normal trading hours for ETH exchanges are 24 hours per day, 365 days per year.
In sum, the Exchange believes that this proposal is consistent with the requirements of section 6(b)(5) of the Act, that this filing sufficiently demonstrates that the e CME ETH Futures market represents a regulated market of significant size, and that on the whole the manipulation concerns previously articulated by the Commission are sufficiently mitigated to the point that they are outweighed by investor protection issues that would be resolved by approving this proposal.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of section 6(b)(5) of the Act.
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 purpose of the Act. The Exchange notes that the proposed rule change rather will facilitate the listing and trading of additional exchange-traded product that will enhance competition among both market participants and listing venues, to the benefit of investors and the marketplace.
No written comments were either solicited or received.
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.
On September 27, 2023, MEMX LLC (“MEMX” or the “Exchange”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the MIAX Options Exchange Fee Schedule (the “Fee Schedule”) to amend fees for Purge Ports.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the fees for Purge Ports, which is a function enabling Market Makers
The Exchange initially filed the proposal on September 29, 2023 (SR-MIAX-2023-37) (the “Initial Proposal”).
Unlike other options exchanges that charge fees for Purge Ports on a per port basis,
The Exchange now proposes to amend the fee for Purge Ports to align more closely with other exchanges who charge on a per port basis by providing two (2) Purge Ports per Matching Engine for a monthly flat fee of $300 per month per Matching Engine. The only difference with a per port structure is that Market Makers receive two (2) Purge Ports per Matching Engine for the same proposed monthly fee, rather than being charged a separate fee for each Purge Port. The Exchange proposes to charge the proposed fee for Purge Ports per Matching Engine, instead on a per Purge Port basis, due to its System architecture which provides two (2) Purge Ports per Matching Engine for redundancy purposes. In addition, the proposed fee is lower than the comparable fee charged by competing exchanges that also charge on a per port basis, notwithstanding that the Exchange is providing up to two (2) Purge Ports for that same lower fee.
Similar to a per port charge, Market Makers are able to select the Matching Engines that they want to connect to,
A logical port represents a port established by the Exchange within the Exchange's System for trading and billing purposes. Each logical port grants a Member
Purge Ports are designed to assist Market Makers
The Exchange operates highly performant systems with significant throughput and determinism which allows participants to enter, update and cancel quotes at high rates. Market Makers may currently cancel individual quotes through the existing functionality, such as through the use of a mass cancel message by which a Market Maker may request that the Exchange remove all or a subset of its quotations and block all or a subset of its new inbound quotations.
Similarly, Market Makers may also use cancel-on-disconnect control when they experience a disruption in connection to the Exchange to automatically cancel all quotes, as configured or instructed by the Member or Market Maker.
The Exchange believes that market participants benefit from a dedicated purge mechanism for specific Market Makers and to the market as a whole. Market Makers will have the benefit of efficient risk management and purge tools. The market will benefit from potential increased quoting and liquidity as Market Makers may use Purge Ports to manage their risk more robustly. Only Market Makers that request Purge Ports would be subject to the proposed fees, and other Market Makers can continue to operate in exactly the same manner as they do today without dedicated Purge Ports, but with the additional purging capabilities described above.
The proposed fees are immediately effective.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange supports the proposed fee change with the below justification because a similar justification was used in a recent 2023 proposal filed with the Commission by another national securities exchange, Phlx, to adopt fees for purge ports, which the Commission deemed acceptable by not suspending that filing during the applicable 60-day review period.
The Exchange believes that the proposed rule change would promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market because offering Market Makers optional service and flexible fee structures which promotes choice, flexibility, efficiency, and competition. The Exchange believes Purge Ports enhance Market Makers' ability to manage quotes, which would, in turn, improve their risk controls to the benefit of all market participants. The Exchange believes that Purge Ports foster cooperation and coordination with persons engaged in facilitating transactions in securities because designating Purge Ports for purge messages may encourage better use of such ports. This may, concurrent with the ports that carry quotes and other information necessary for market making activities, enable more efficient, as well as fair and reasonable, use of Market Makers' resources. Similar connectivity and functionality is offered by options exchanges, including the Exchange's own affiliated options exchanges, and other equities exchanges.
Purge Ports do not relieve Market Makers of their quoting obligations or firm quote obligations under Regulation NMS Rule 602.
The Exchange is not the only exchange to offer this functionality and to charge associated fees.
The Exchange believes it is reasonable to charge $300 per month for Purge Ports as proposed because such ports were specially developed to allow Market Makers to send a single message to cancel multiple quotes, thereby assisting firms in effectively managing risk. The Exchange also believes that a Member that chooses to utilize Purge Ports may, in the future, reduce their need for additional ports by consolidating cancel messages to their dedicated Purge Port and thus freeing up some capacity of the existing logical ports and, therefore, allowing for increased message traffic without paying for additional logical ports. Purge Ports provide the ability to cancel
The Exchange also believes that its ability to set fees for Purge Ports is subject to significant substitution-based forces because Market Makers are able to rely on currently available services both free and those they receive when using existing trading protocols. If the value of the efficiency introduced through the Purge Port functionality is not worth the proposed fees, Market Makers will simply continue to rely on the existing functionality and not pay for Purge Ports. In that regard, Market Makers may currently cancel individual quotes through the existing functionality, such as through the use of a mass cancel message by which a Market Maker may request that the Exchange remove all or a subset of its quotations and block all or a subset of its new inbound quotations. Already Market Makers can also cancel quotes individually and by utilizing Exchange protocols that allow them to develop proprietary systems that can send cancel messages at a high rate.
Similarly, Market Makers may use cancel-on-disconnect control when they experience a disruption in their connection to the Exchange and immediately cancel all pending quotes in the Exchange's System.
The Exchange also believes that offering Purge Ports at the Matching Engine level promotes risk management across the industry, and thereby facilitates investor protection. Some market participants, in particular the larger firms, could and do build similar risk functionality (as described above) in their trading systems that permit the flexible cancellation of quotes entered on the Exchange at a high rate. Offering Matching Engine level protections ensures that such functionality is widely available to all firms, including smaller firms that may otherwise not be willing to incur the costs and development work necessary to support their own customized mass cancel functionality.
As noted above, the Exchange is not the only exchange to offer dedicated Purge Ports, and the proposed rate is lower than that charged by other exchanges for similar functionality. The Exchange also believes that moving to a per Matching Engine fee is reasonable due to the Exchange's architecture that provides it the ability to provide two (2) Purge Ports per Matching Engine for a fee that would still be lower than competing exchanges that charge on a per port basis. Generally speaking, restricting the Exchange's ability to charge fees for these services discourages innovation and competition. Specifically in this case, the Exchange's inability to offer similar services to those offered by other exchanges, and charge reasonable and equitable fees for such services, would put the Exchange at a significant competitive disadvantage and, therefore, serve to restrict competition in the market—especially when other exchanges assess comparable fees higher than those proposed by the Exchange.
The Exchange believes that the proposed Purge Port fees are equitable because the proposed Purge Ports are completely voluntary as they relate solely to optional risk management functionality.
The Exchange also believes that the proposed amendments to its Fee Schedule are not unfairly discriminatory because they will apply uniformly to all Market Makers that choose to use the optional Purge Ports. Purge Ports are completely voluntary and, as they relate solely to optional risk management functionality, no Market Maker is required or under any regulatory obligation to utilize them. All Market Makers that voluntarily select this service option will be charged the same amount for the same services. All Market Makers have the option to select any connectivity option, and there is no differentiation among Market Makers with regard to the fees charged for the services offered by the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Purge Ports are completely voluntary and are available to all Market Makers on an equal basis at the same cost. While the Exchange believes that Purge Ports provide a valuable service, Market Makers can choose to purchase, or not purchase, these ports based on their own determination of the value and their business needs. No Market Maker is required or under any regulatory obligation to utilize Purge Ports. Accordingly, the Exchange believes that Purge Ports offer appropriate risk management functionality to firms that trade on the Exchange without imposing an unnecessary or inappropriate burden on competition.
Furthermore, the Exchange operates in a highly competitive environment, and its ability to price the Purge Ports is constrained by competition among exchanges that offer similar functionality. As discussed, there are currently a number of similar offers available to market participants for higher fees at other exchanges. Proposing fees that are excessively higher than established fees for similar functionality would simply serve to reduce demand for the Purge Ports, which as discussed, market participants are under no obligation to utilize. It could also cause firms to shift trading to other exchanges that offer similar functionality at a lower cost, adversely impacting the overall trading on the
The Exchange also does not believe the proposal would cause any unnecessary or inappropriate burden on intermarket competition as other exchanges are free to introduce their own purge port functionality and lower their prices to better compete with the Exchange's offering. The Exchange does not believe the proposed rule change would cause any unnecessary or inappropriate burden on intramarket competition. Particularly, the proposal would apply uniformly to any market participant, in that it does not differentiate between Market Makers. The proposal would allow any interested Market Makers to purchase Purge Port functionality based on their business needs.
The Exchange received one comment letter on the proposal.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On October 10, 2023, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the issues raised therein. Accordingly, the Commission, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 433 (17 CFR 230.433) governs the use and filing of free writing prospectuses under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation 14D (17 CFR 240.14d-1—240.14d-11) and Regulation 14E (17 CFR 240.14e-1—240.14e-8) and related Schedule 14D-9 (17 CFR 240.14d-101) require information important to security holders in deciding how to respond to tender offers. Schedule 14D-9 takes approximately 260.56 hours per response to prepare and is filed by approximately 63 companies annually. We estimate that 25% of the 260.56 hours per response (65.14 hours) is prepared by the company for an annual reporting burden of 4,104 hours (65.14 hours per response × 63 responses).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may not view background documentation for this information collection at the following website:
On August 28, 2023, Nasdaq PHLX LLC (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The Commission is publishing this notice to solicit comments on the proposed rule change, as modified by partial Amendment No. 1, from interested persons and is instituting proceedings pursuant to section 19(b)(2)(B) of the Act
The Exchange proposes to amend Equity 4, Rule 3301A(b) to establish “CMO” and “CMO+PO” as new order types on the Exchange. The Exchange states that a CMO is a Non-Displayed Order Type priced at the midpoint between the National Best Bid and the National Best Offer (the “NBBO” and the midpoint of the NBBO, the “Midpoint”).
According to the Exchange, a CMO+PO is like a CMO, except that it provides for “post-only” functionality, meaning that like a Midpoint Peg Post-Only Order,
The Exchange states that a CMO is a non-displayed Order Type with the Midpoint Pegging Attribute that will be priced and ranked in time order at the Midpoint and that a user may cancel a CMO at any time. According to the Exchange, the System will remove a CMO Order automatically if a CMO is resting at the Midpoint on the Exchange Book, an incoming Order is priced through the price of the CMO, the CMO would otherwise trade against the incoming Order,
The Exchange provides the following two examples to illustrate the concept. In the first example, the National Best Bid is $10.00 and the National Best
The Exchange provides a second example, in which the National Best Bid is $10.00 and the National Best Offer is $11.00, and Participant A again enters Order 1, which is a CMO to buy 100 shares of X that is priced at $10.50. While Order 1 is resting on the Exchange Book, Participant B enters Order 2, which this time is a Non-Displayed Order to sell 200 shares at $10.00. CMO functionality would activate for Order 1 both because Order 2 is larger than Order 1 and because Order 2 is priced at the far side of the NBBO. The System would resubmit Order 1 as Order 3, priced at $10.50. Order 3 would then execute at $10.00, again providing Participant A with price improvement relative to the prevailing midpoint price. The Exchange states it would permit Participant A to receive the benefit of Order 2, which is priced aggressively at the far side of the NBBO, even though Order 2 is a non-displayed Order that would not shift the NBBO or the midpoint.
Additionally, the Exchange states that because a CMO inherently possesses the Midpoint Pegging Attribute, it will behave in accordance with Rule 3301B(d), which governs Orders with Midpoint Pegging.
A CMO user may opt to apply the Minimum Quantity, Trade Now, or Discretion Order Attributes and a Time-In-Force to a CMO.
The Exchange states that CMO and CMO+PO executions will be reported to Securities Information Processors and provided in the Exchange's proprietary data feed without any new or special indication.
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 Exchange replied to these comments with its own comment letter and by filing partial Amendment No. 1.
The Commission is instituting proceedings to allow for additional analysis of, and input from commenters with respect to, the consistency of the proposal, as modified by partial Amendment No. 1, with sections 6(b)(5)
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 sections 6(b)(5) and section 6(b)(8), or any other provision of the Exchange 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 January 2, 2024. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by January 16, 2024.
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.
Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of New York dated 12/04/2023.
Issued on 12/04/2023.
Alan 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 Administrator's disaster declaration, applications for disaster loans may be submitted online using the MySBA Loan Portal
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 200126 and for economic injury is 200130.
The States which received an EIDL Declaration are Connecticut, New Jersey, New York.
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 January 11th, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
William Ekins by email at:
We conducted the Survey of UAS Operators for 2021 and 2022 UAS activity under the original information collection request granted in March of 2021. These surveys utilized a stratified random sampling design with the operator's county of residence and type of operator as strata. The survey collected information through a questionnaire with 76 questions, but due to the skip logic of the questionnaire, the average respondent only answered 16 questions. The 2021 and 2022 activity surveys received 17,736 and 22,846 responses, respectively. The information from these surveys have been used to improve the questionnaire and inform rule making.
This request to modify and renew the information collection is to continue and improve the support of the FAA's mission of safety and aligns with Title 49 of the United States Code. The objective of this collection is to improve the FAA knowledge of UAS operations and better predict the nature of UAS operations within the national airspace system (NAS). The information gathered empowers the FAA to make informed decisions surrounding UAS operations within the NAS.
This information collection renewal asks to improve the survey design by expanding the target population and adding an additional stratum to the sampling process. The original survey's target population included only registered small UAS operators—operators with UAS weighing less than 55 lbs—within the United States. The survey under the renewed information collection would expand the target population to include all UAS, regardless of weight, by including UAS operators with a section 44807 exemption, which utilizes the aircraft registry under section 44103 as a sample frame. In addition, data collected from the 2021 and 2022 UAS activity surveys suggested that operators with UAS larger fleets have more diverse UAS activity than UAS operators with small fleets, who are most of the section 349 and part 107 registries. To improve the sampling of UAS operators, operators with larger fleets with receive equal sampling to UAS operators with small fleets by adding a fleet-size stratum to the sampling process when a registry contains information on the size of the fleet, such as the part 107 registry.
Selected registrants are invited to complete a questionnaire regarding the operator's fleet characteristics, flight behavior, and overall UAS activities. The survey's questionnaire contains over 80 questions, but due to skip logic, the average respondent will only answer 18 questions. We estimate the questionnaire requires 10 minutes on average to complete. Responding to the survey is voluntary, and respondents are given the option of opting out of just the current year's survey or all future surveys. All collected data are anonymized and only aggregated data are reported, thereby protecting the identity of the respondents. The survey will open in November of the year for which the UAS activity is gathered and close on February 1st of the following year.
Due to the changing nomenclature of this section of aviation, we request to change the name of the survey for the Survey of Unmanned-Aircraft-Systems Operators to the Survey of Uncrewed-Aircraft-Systems Operators.
Federal Aviation Administration (FAA), Department of Transportation.
Public comment period for the FAA's Draft Environmental Assessment.
The FAA announces the release of the Draft Environmental Assessment (EA) for proposed departure procedure amendments at Bob Hope “Hollywood Burbank” Airport (BUR Airport). The FAA has prepared the Draft EA to evaluate the potential environmental impacts of the FAA adopting new procedures for Runway 15 departures at BUR Airport. If implemented, the Proposed Action (Alternative A) is intended to maintain the safety and efficiency of the National Airspace System (NAS) while meeting the terms of a settlement agreement that the FAA entered with local homeowners' associations, which requires consideration of alternative procedures. The FAA also evaluated proposed amendments put forth by the Southern San Fernando Valley Airplane Noise Task Force for BUR Airport (Alternative B).
The Draft EA is available for public review beginning on December
Comments can be submitted by email to
Lonnie D. Covalt, Operations Support Group, Western Service Center, 2200 216th Street, Des Moines, WA 98198; telephone 206-231-3998, email
The Draft EA was prepared in accordance with the settlement agreement between the Benedict Hills Homeowners Association, Benedict Hills Estates Association, and the FAA (“Settlement Agreement”) to assess potential environmental impacts in connection with proposed amendments to the OROSZ and SLAPP departure procedures at BUR Airport. In addition to the No Action Alternative, where current procedures at BUR Airport would continue to be utilized, the FAA is considering two additional alternatives.
The first alternative (Alternative A) was developed in accordance with the Settlement Agreement and would result in the amendment of existing flight procedures to create two Open Standard Instrument Departure (SID) procedures, the SLAPP THREE DEPARTURE (Area Navigation [RNAV]) (“SLAPP THREE”) and the OROSZ THREE DEPARTURE (RNAV) (“OROSZ THREE”) procedure.
The second alternative (Alternative B) is comprised of the modification of the current SLAPP TWO DEPARTURE (RNAV) (“SLAPP TWO”) and OROSZ TWO DEPARTURE (RNAV) (“OROSZ TWO”) procedures to require a higher climb gradient. Alternative B was developed in accordance with recommendations set forth by a separate community stakeholder, the Southern San Fernando Valley Airplane Noise Task Force, to reduce noise over communities in southern San Fernando Valley.
The Draft EA is available upon request by contacting Operation Support Group, Western Service Center, Federal Aviation Administration, 2200 216th Street, Des Moines, WA 98198; telephone (206) 231-2286. The Draft EA is also available on the FAA website at:
Federal Transit Administration, Department of Transportation (DOT).
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Requirements (ICRs) abstracted below have been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describe the nature of the information collection and their expected burdens for the Public Transportation Safety Program.
Comments must be submitted on or before January 10, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Tia Swain, Office of Administration, Management Planning Division, 1200 New Jersey Ave. SE, Mail Stop TAD-10, Washington, DC 20590; (202) 366-0354 or
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, Section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On July 6, 2023, FTA published a 60-day notice (88 FR 43167) in the
The summaries below describe the nature of the information collection requirements (ICRs) and the expected burden. The requirements are being submitted for clearance by OMB as required by the PRA.
The information captured through this data collection will enable FTA to respond to existing safety issues and be proactive to address potential and emerging safety concerns. This information collection is essential to FTA's safety oversight and grant-making roles—both critical to the Agency's mission of improving public transportation for America's communities.
Office of the Under Secretary for Transportation Policy, Department of Transportation (DOT).
Notice of the establishment of the Aerospace Supply Chain Resiliency (ASCR) Task Force.
DOT is announcing the establishment of the ASCR Task Force. The ASCR Task Force is required by section 106 of the Consolidated Appropriations Act of 2023, enacted December 29, 2022. This notice outlines DOT's plan for implementation of this Task Force, including the dates of Task Force meetings. DOT will publish any future updates on the DOT web page. See further details within the
The ASCR Task Force is established on the date of publication of this
The four official meetings of the Task Force will take place in person at U.S. DOT Headquarters, 1200 New Jersey Avenue SE, Washington, DC 20590. See Section 6 for further information about the schedule, location, and nature of the Task Force meetings.
Elliott Black, Facilitator, ASCR Task Force, Office of the Under Secretary for Transportation Policy, at (202) 924-0588 or email
DOT is hereby announcing the establishment of a new Aerospace Supply Chain Resiliency (ASCR) Task Force. The ASCR Task Force is required by Section 106 of the Consolidated Appropriations Act of 2023 (Pub. L. 117-328), enacted December 29, 2022. This notice outlines DOT's plan for implementation of this Task Force, including the dates of Task Force meetings.
The remainder of this notice includes:
1. Summary of statutory requirements (including the scope and purpose of the new Task Force).
2. Structure and composition of the Task Force.
3. Opportunities for others to provide input to the Task Force.
4. Proceedings, records, and nature of the required reports.
5. Relationship to other initiatives.
6. Schedule, location, and nature of the Task Force meetings.
7. Other Information.
The statute established the purpose of the Task Force as to “Identify and assess risks to United States aerospace supply chains, including the availability of raw materials and critical manufactured goods, with respect to major end items produced by the aerospace industry; and the infrastructure of the National Airspace System; and identify best practices and make recommendations to mitigate those risks and support a robust United States aerospace supply chain.”
Accordingly, DOT has established the Task Force as required by the statute, to focus on the scope as set forth in statute. DOT will facilitate the Task Force and encourage all members to consider both current and emerging issues, including issues driven by new and evolving technologies as well as other external factors and trends.
The statute also established the maximum size of the Task Force, and a minimum list of required disciplines to be represented. Please see Section 2 (“Structure and composition of the Task Force”) for further information.
The statute also established several schedule requirements. Please see Section 5 (“Schedule, location, and nature of the Task Force meetings”) for further information.
The statute specifically exempted the Task Force from the Federal Advisory Committee Act (FACA). Accordingly, this Notice describes the parameters by which the Task Force will function.
The statute outlined 16 specific industry perspectives that must be represented, including six manufacturing categories, six operational categories, and four labor categories. The statute requires the Secretary to appoint “Individuals with
The members of the Task Force are listed below, including both primary representatives and alternate representatives in case any primary representative is unavailable to participate in one or more of the Task Force meetings:
• Sarah MacLeod, Primary member (Christian Klein, alternate), Aeronautical Repair Station Association (ARSA).
• Dak Hardwick, Primary member (Di Reimold, alternate), Aerospace Industries Association (AIA).
• Carey Fagan, Primary member (Rugger Smith, alternate), Air Traffic Control Association (ATCA).
• Richard (Ric) Peri, Primary member (Mike Adamson, alternate), Aircraft Electronics Association (AEA).
• James (“Jim”) Coon, Primary member (Murray Huling, alternate), Aircraft Owners and Pilots Association (AOPA).
• Bob Ireland, Primary member (Justin Madden, alternate), Airlines for America (A4A).
• Michael Robbins, Primary member (Max Rosen, alternate), Association for Uncrewed Vehicle Systems International (AUVSI).
• Isaiah Wonnenberg, Primary member (Mary Guenther, alternate), Commercial Spaceflight Federation (CSF).
• Hassan Shahidi, Primary member (Deborah Kirkman, alternate), Flight Safety Foundation (FSF).
• Paul Feldman, Primary member (Joe Sambiase, alternate), General Aviation Manufacturers Association (GAMA).
• John Shea, Primary member (Christopher Martino, alternate), Helicopter Association International (HAI).
• Jody Bennett, Primary member, International Association of Machinists and Aerospace Workers (IAMAW).
• Richard Plunkett, Primary member (Brandon Anderson, alternate), International Federation of Professional and Technical Engineers (IFPTE)/Society of Professional Engineering Employees in Aerospace (SPEEA).
• Ken Thompson, Primary member (Keith DeBerry, alternate), National Air Transportation Association (NATA).
• Sierra Grimes, Primary member (Doug Carr, alternate), National Business Aviation Association (NBAA).
• David Spero, Primary member (Carlos Aguirre, alternate), Professional Aviation Safety Specialists (PASS).
• Gary Peterson, Primary member (Mark Erler, alternate), Transport Workers Union of America (TWU).
DOT recognizes that there may be other organizations and individuals who would like to provide input for consideration by the Task Force. Each meeting will include a public session where stakeholders may provide such input. In addition, interested parties may submit input in writing by following the instructions that DOT has published at
Based on the statutory provisions, the Task Force must submit its Report to Congress within one year of the first meeting of the Task Force. The Task Force Report to Congress shall be an independent report, not subject to DOT review or approval.
Therefore, DOT will facilitate the Task Force proceedings with a focus on ensuring a balanced and harmonious process, and providing a safe environment for open dialogue and full consideration of all perspectives (including addressing input provided by other interested parties). If there are areas in which the Task Force cannot come to consensus, DOT will encourage the Task Force to report more than a single perspective for Congressional consideration.
DOT will conduct the closed-door portion of Task Force meetings according to Chatham House rules, which stipulate that the proceedings are not to be recorded or reported externally in any form. Members of the Task Force agree not to disclose the internal proceedings or to attribute any particular viewpoint to any members of the Task Force. Members of the Task Force will be required to sign Nondisclosure Agreements. The purpose of this approach is to ensure a safe environment in which all Members of the Task Force may speak freely and openly, without fear of external disclosure.
Likewise, DOT does not intend to record or create detailed minutes, notes, or other official records of the proceedings, including either the public sessions or the closed-door sessions. Rather, each Member of the Task Force shall bear the responsibility to keep their own individual notes or records as necessary to help them formulate and prepare the Task Force Report to Congress.
Based on the statutory provisions, DOT must then submit a separate Report to Congress, within 180 days of the Task Force report, regarding the status or implementation of recommendations of the Task Force.
DOT will post copies of both reports on the website at
DOT acknowledges that other task forces and other bodies have been established to examine supply-chain issues, including joint reviews and reports conducted in response to Executive Order 14017 (entitled “America's Supply Chains”) as well as other task forces, councils, and working groups established by other Federal agencies, industry associations, and other stakeholders.
DOT will review prior reports and analyses to identify issues that may need further examination in the particular context of the United States' aerospace industry. DOT will include such issues on the agenda for the initial meeting of the Task Force, and engage with Task Force members as well as other interested parties to consider the challenges and potential mitigation measures.
The official meetings of the Task Force will take place in person at DOT Headquarters in Washington, DC. Each meeting will include a public session and a closed-door session. DOT may convene additional closed-door meetings or working sessions as necessary.
Parties interested in attending and/or speaking at any of the public sessions must register at least seven (7) business days in advance by following the instructions posted at
DOT is committed to providing equal access to this meeting for all participants. If you need alternative formats or services due to a disability, such as sign language interpretation or other ancillary aids, please contact the person listed in the
The meetings will take place on the following dates:
•
•
•
•
DOT does not anticipate publishing any further notices or information about this Task Force in the
Signed in Washington, DC.
The
Category II (Core) FA Applicants applying for Base-FA, PPC-FA, and/or DF-FA must provide evidence of acceptable Matching Funds
The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements,
(a) Recipients and Subrecipients are prohibited from obligating or expending loan or grant funds to:
(1) Procure or obtain;
(2) Extend or renew a contract to procure or obtain; or
(3) Enter into a contract (or extend or renew a contract) to procure or obtain, equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any Subsidiary or Affiliate of such entities).
For the purposes of DF-FA, a person with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a record of such an impairment, or a person who is regarded as having such an impairment, as defined by the Americans with Disabilities Act (ADA), 42 U.S.C. 12102.
a. Recipient must close Financial Products for Healthy Food Retail Outlets and Healthy Food Non-Retail Outlets in its approved Target Market in an amount equal to or greater than 100% of the total HFFI Financial Assistance provided. Eligible financing activities to Healthy Food Retail Outlets and Healthy Food Non-Retail Outlets require that the majority of the loan or investment be devoted to offering a range of Healthy Food choices, which may include, among other activities, investments supporting an existing retail store or wholesale operation upgrade to offer an expanded range of Healthy Food choices, or supporting a nonprofit organization that expands the availability of Healthy Foods in underserved areas.
b. Recipient must demonstrate that it has closed Financial Products to Healthy Food Retail Outlets located in Food Deserts in the Recipient's approved Target Market in an amount equal to 75% of the total HFFI Financial Assistance provided.
(A) Applicants with a 3/31 fiscal year end date will treat FY 2023 as their most recent historic fiscal year and FY 2024 as their current year.
(B) Applicants with a 6/30 fiscal year end date and a completed FY 2023 audit will treat FY 2023 as their most recent historic fiscal year and FY 2024 as their current year.
(C) Applicants with a 6/30 fiscal year end date but without a completed FY 2023 audit will treat FY 2022 as their most recent historic fiscal year and FY 2023 as their current year.
(D) Applicants with a 9/30 fiscal year end date will treat FY 2022 as their most recent historic fiscal year and FY 2023 as their current year.
(E) Applicants with a 12/31 fiscal year end date will treat FY 2022 as their most recent historic fiscal year and FY 2023 as their current year.
All Applicants must register in the
Each Application must be signed by a designated Authorized Representative in AMIS before it can be submitted. Applicants must ensure that an Authorized Representative is an employee or officer and is authorized to sign legal documents on behalf of the Applicant. Consultants working on behalf of the Applicant may not be designated as Authorized Representatives. Only a designated Authorized Representative or Application Point of Contact, included in the Application, may submit the Application in AMIS. If an Authorized Representative or Application Point of Contact does not submit the Application, the Application will be deemed ineligible.
a.
b. AMIS Submission Information: AMIS is a web-based system where Applicants will directly enter their Application information and add the required attachments listed in Table 10. AMIS will verify that the Applicant provided the minimum information required to submit an Application. Applicants are responsible for the quality and accuracy of the information and attachments included in the Application submitted in AMIS. The CDFI Fund strongly encourages Applicants to allow for sufficient time to review and complete all Required Application Documents listed in Table
However, in cases where a federal government administrative or technological error directly resulted in precluding an Applicant from submitting the SF-424, the Application, or creating an AMIS account, or precluding an Applicant from submitting the Title VI Compliance Worksheet by the deadlines stated in this NOFA, Applicants are provided the opportunity to submit a written request for acceptance of late submissions. Be aware that unexpected delay in a federal government process does not in and of itself constitute a federal government administrative or technological error. The CDFI Fund will only approve the late submission of the SF-424, the Application, the Title VI Compliance worksheet, or the late creation of an AMIS account if the Applicant demonstrates that an unexpected delay was the direct result of a federal government administrative or technological error.
a. Creation of AMIS Account: In cases where a federal government administrative or technological error directly resulted in precluding an Applicant from creating an AMIS account by the required deadline, the Applicant must submit a written request for approval to create its AMIS account after the deadline, and include documentation of the error, no later than two business days after the AMIS account creation deadline. The CDFI Fund will not respond to requests for creating an AMIS account after that time. Applicants must submit such request via an AMIS Service Request to the CDFI Program or an email to
b. SF-424 Late Submission: In cases where a federal government administrative or technological error directly resulted in precluding an Applicant from submitting the SF-424 by the required deadline, the Applicant must submit a written request for acceptance of the late SF-424 submission and include documentation of the error no later than two business days after the SF-424 deadline. The CDFI Fund will not respond to requests for acceptance of late SF-424 submissions after that time period. Applicants must submit late SF-424 submission requests to the CDFI Fund via an AMIS Service Request to the CDFI Program with a subject line of “Late SF-424 Submission Request.”
c. Title VI Compliance Worksheet Late Submission: In cases where a federal government administrative or technological error directly precluded an Applicant from submitting the Title VI Compliance Worksheet by the required deadline, the Applicant must submit a written request for approval to submit the Worksheet after the deadline, and include documentation of the error, no later than two business days after the Title VI Compliance Worksheet submission deadline. The CDFI Fund will not respond to requests for submitting a Title VI Compliance Worksheet after that time. Applicants must submit such request via an AMIS Service Request to the CDFI Program with a subject line of “CDFI Program—Title VI Compliance Worksheet Deadline Extension Request.”
d. AMIS Application Late Submission: In cases where a federal government administrative or technological error directly resulted in precluding an Applicant from submitting the Application in AMIS by the required deadline, the Applicant must submit a written request for acceptance of the late Application submission and include documentation of the error no later than two business days after the Application deadline. The CDFI Fund will not respond to requests for acceptance of late Application submissions after that time period. Applicants must submit late Application submission requests to the CDFI Fund via an AMIS Service Request to the CDFI Program with a subject line of “Late Application Submission Request.”
a. A Recipient shall use Base-FA award funds only for the eligible activities described in Section II. (C)(1) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, Base-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. Base-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay Base-FA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use PPC-FA award funds only for the eligible activities described in Section II. (C)(5) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, PPC-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. PPC-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay PPC-FA award
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use DF-FA award funds only for the eligible activities described in Section II. (C)(2) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, DF-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. DF-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay DF-FA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use HFFI-FA award funds only for the eligible activities described in Section II. (C)(4) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, HFFI-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. HFFI-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay HFFI-FA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use TA award funds only for the eligible activities described in Section II.(C)(3) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, TA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. TA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay TA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. Step 1: Eligibility Review: The CDFI Fund will evaluate each Application to determine its eligibility status pursuant to Section III of this NOFA.
b. Step 2: Financial Analysis and Compliance Risk Evaluation:
i. Step 2: Financial Analysis: For Regulated Institutions, the CDFI Fund will consider financial safety and soundness information from the Appropriate Federal or State Banking Agency. As detailed in Table 8, each Regulated Institution FA Applicant (including a subsidiary Depository Institution that will expend and carry out the activities of an award on behalf of a Depository Institution Holding Company Applicant) must have a CAMELS/CAMEL rating of at least “3” and/or no significant material concerns from its regulator and a CRA assessment rating of at least “Satisfactory”.
For non-regulated Applicants, the CDFI Fund will evaluate the financial health and viability of each non-regulated Applicant using financial information provided by the Applicant. For the financial analysis, each non-regulated Applicant will receive a Total Financial Composite Score on a scale of one (1) to five (5), with one (1) being the highest rating. The Total Financial Composite Score is based on the analysis of twenty-three (23) financial indicators. Applications will be grouped based on the Total Financial Composite Score. Applicants must receive a Total Financial Composite Score of one (1), two (2), or three (3) to advance to Step 3. Applicants that receive an initial Total Financial Composite Score of four (4) or five (5) will be re-evaluated and re-scored by CDFI Fund staff. If the Total Financial Composite Score remains four (4) or five (5) after CDFI Fund staff review, the Applicant will not advance to Step 3.
ii. Step 2: Compliance Risk Evaluation: For the compliance analysis, the CDFI Fund will evaluate the compliance risk of each Applicant using information provided in the Application, as well as an Applicant's reporting history, reporting capacity, and performance risk with respect to meeting the PG&Ms set forth in the Assistance Agreement. Each Applicant will receive a Total Compliance Composite Score on a scale of one (1) to five (5), with one (1) being the highest rating. Applicants that receive an initial Total Compliance Composite Score of four (4) or five (5) will be re-evaluated by CDFI Fund staff. If the Applicant is deemed a high compliance risk after CDFI Fund staff review, the Applicant will not advance to Step 3.
c. Step 3: Business Plan Review: Applicants that proceed to Step 3 will
Based on funding availability for Core and SECA Base-FA Applicant types, the CDFI Fund reserves the right to limit the number of Applicants that progress from Step 3 to Step 4 to ensure that the CDFI Program can meaningfully vary award amounts among Applicants with different Step 4 Policy Objective scores, while maintaining minimum award amounts specified in Table 2. In cases where funding availability is not sufficient to progress all Applicants within the top 60% of the Core Applicant pool and within the top 70% of the SECA Applicant pool from Step 3 to Step 4, priority will be given to Applicants that score highest on the Total Business Plan Score in each Applicant type (Core and SECA).
d. Step 4: Policy Objective Review: The CDFI Fund internal reviewers will evaluate each Application to determine its ability to meet policy objectives of the CDFI Fund. Each Applicant will be evaluated in each of the categories listed in Table 14, and will receive a Total Policy Objective Review Score on a scale of one (1) to five (5), with one (1) being the highest score. Applicants are then grouped according to Total Policy Objective Review Scores.
The CDFI Fund also conducts a due diligence review for Applicants that includes an analysis of programmatic risk factors including, but not limited to: history of performance in managing Federal awards (including timeliness of reporting and compliance); ability to meet FA Objective(s) selected by Base-FA Applicants in their Applications; reports and findings from audits; and ability to effectively implement federal requirements, each of which could impact the Total Policy Objective Review Score.
e. Step 5: Award Amount Determination: The CDFI Fund determines an award amount for each Application based on the Step 4 Total Policy Objective Review Score, the Applicant's request amount, and on certain other factors, including, but not limited to, the Applicant's deployment track record, minimum award size, and funding availability. Applicants may have award amounts reduced from the requested award amount or not funded as a result of this analysis. Based on funding availability for Core, SECA, and/or NACA Base-FA Applicant types, the CDFI Fund reserves the right to not award all Applicants that advance to Step 5. In cases where funding availability is not sufficient to award all Applications, priority will be given to Applicants that score highest on the Step 4: Policy Objective Review in each Applicant type Category (Core and SECA). For Core FA Applicants, the
The CDFI Fund conducts additional levels of due diligence for Applications that are under consideration for an HFFI-FA award. Award amounts may be reduced from the requested award amount as a result of this analysis. The CDFI Fund may reduce awards sizes from requested amounts based on certain variables, including but not limited to, an Applicant's loan disbursement activity, total portfolio outstanding, or compliance with prior HFFI-FA awards. Lastly, the CDFI Fund may consider the geographic diversity of Applicants when making its funding decisions.
An Applicant that is a Certified CDFI will be evaluated on the demonstrated need for a TA award to build the CDFI's capacity, further the Applicant's strategic goals, and achieve impact within the Applicant's Target Market. An Applicant that is an Emerging CDFI will be evaluated on the Applicant's demonstrated capability and plan to achieve CDFI Certification within three years, or if a prior Recipient, the CDFI
Each TA Application will be evaluated by one internal CDFI Fund reviewer. The Business Plan Review of all Applications will be reviewed in accordance with CDFI Fund standard reviewer evaluation materials.
The CDFI Fund conducts additional levels of due diligence for Applications that are under consideration for an award. This due diligence includes an analysis of programmatic and financial risk factors including, but not limited to, financial stability, history of performance in managing Federal awards (including timeliness of reporting and compliance), reports and findings from audits, and the Applicant's ability to effectively implement federal requirements. The CDFI Fund will also evaluate the compliance risk of each Applicant using information provided in the Application as well as an Applicant's reporting history, reporting capacity, and performance risk with respect to meeting the PG&Ms set forth in the Assistance Agreement. Each Applicant will receive a Total Compliance Composite Score on a scale of one (1) to five (5), with one (1) being the highest rating. Applicants that receive an initial Total Compliance Composite Score of four (4) or five (5) will be re-evaluated by CDFI Fund staff. If the Applicant is deemed a high compliance risk after CDFI staff review, the Applicant will not be considered for an award. The CDFI Fund will also evaluate the Applicant's ability to meet CDFI Certification criteria of being a legal entity and a non-government entity. Award amounts may be reduced as a result of the due diligence analysis in addition to consideration of the Applicant's funding request and similar factors. Lastly, the CDFI Fund may consider the geographic diversity of Applicants when making its funding decisions.
The CDFI Fund will minimize the time between the Recipient incurring costs for eligible activities and award payment(s) in accordance with the Uniform Requirements. Advanced payments for eligible activities will occur no more than one year in advance of the Recipient incurring costs for the eligible activities. Following the initial closing, there may be subsequent closings involving additional award payments. Any documentation in addition to the Assistance Agreement that is connected with such subsequent closings and payments shall be properly executed and timely delivered by the Recipient to the CDFI Fund.
In addition, the CDFI Fund reserves the right, in its sole discretion, to terminate and rescind the Assistance Agreement and the award made under this NOFA pending the criteria described in Table 18.
Each Recipient is responsible for the timely and complete submission of the Annual Reporting Requirements. The CDFI Fund reserves the right to contact the Recipient and additional entities or signatories to the Assistance Agreement to request additional information and/or documentation. The CDFI Fund will use such information to monitor each Recipient's compliance with the requirements of the Assistance Agreement and to assess the impact of the CDFI Program. The CDFI Fund reserves the right, in its sole discretion, to modify these reporting requirements, including increasing the scope and frequency of reporting, if it determines it to be appropriate and necessary; however, such reporting requirements will be modified only after notice to Recipients.
The cost principles used by Recipients must be consistent with federal cost principles and support the accumulation of costs as required by the principles, and must provide for adequate documentation to support costs charged to the CDFI Program award. In addition, the CDFI Fund will require Recipients to: maintain effective internal controls; comply with applicable statutes, regulations, and the Assistance Agreement; evaluate and monitor compliance; take appropriate action when not in compliance; and safeguard personally identifiable information.
A. The CDFI Fund will respond to questions concerning this NOFA and the Application between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time, starting on the date that the NOFA is published through the date listed in Table 1 and Table 12. The CDFI Fund strongly recommends Applicants submit questions to the CDFI Fund via an AMIS Service Request to the CDFI Program, Certification, Compliance Monitoring and Evaluation (CCME), or IT Help Desk. The CDFI Fund will post on its website responses to reoccurring questions received about the NOFA and Application. Other information regarding the CDFI Fund and its programs may be obtained from the CDFI Fund's website at
The CDFI Fund reserves the right to award more or less than the amounts cited above in each category, based upon available funding and other factors, as appropriate.
However, Applicants that qualify for the NACA Program may submit two Applications: one Application (either for a TA award or an FA award, but not both) through the CDFI Program, and one Application (either for a TA award or an FA award, but not both) through the NACA Program. NACA qualified Applicants that choose to apply for awards through both the CDFI Program and the NACA Program may either apply for the same type of award under each Program or for a different type of award under each Program. NACA qualified FA Applicants that choose to apply for an FA award under both the NACA Program and CDFI Program and are selected for an award under both Programs will be provided the FA award under the CDFI Program. NACA qualified TA Applicants that choose to apply for a TA award under both the NACA Program and CDFI Program and are selected for an award under both Programs will be provided the TA award under the NACA Program. NACA qualified Applicants that choose to apply for a TA award and an FA award under separate programs and are selected for an award under both Programs will be provided the larger of the two awards. NACA Applicants cannot receive an award under both Programs within the same funding round.
The Indian Community Economic Enhancement Act of 2020 (Pub. L. 116-261) permanently waived the Matching Funds
The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements,
(a) Recipients and Subrecipients are prohibited from obligating or expending loan or grant funds to:
(1) Procure or obtain;
(2) Extend or renew a contract to procure or obtain; or
(3) Enter into a contract (or extend or renew a contract) to procure or obtain, equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any Subsidiary or Affiliate of such entities).
For the purposes of DF-FA, a person with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a record of such an impairment, or a person who is regarded as having such an impairment, as defined by the Americans with Disabilities Act (ADA), 42 U.S.C. 12102.
a. Recipient must close Financial Products for Healthy Food Retail Outlets and Healthy Food Non-Retail Outlets in its approved Target Market in an amount equal to or greater than 100% of the total HFFI Financial Assistance provided. Eligible financing activities to Healthy Food Retail Outlets and Healthy Food Non-Retail Outlets require that the majority of the loan or investment be devoted to offering a range of Healthy Food choices, which may include, among other activities, investments supporting an existing retail store or wholesale operation upgrade to offer an expanded range of Healthy Food choices, or supporting a nonprofit organization that expands the availability of Healthy Foods in underserved areas.
b. Recipient must demonstrate that it has closed Financial Products to
All Applicants must register in the
Each Application must be signed by a designated Authorized Representative in AMIS before it can be submitted. Applicants must ensure that an Authorized Representative is an employee or officer and is authorized to sign legal documents on behalf of the Applicant. Consultants working on behalf of the Applicant may not be designated as Authorized Representatives. Only a designated Authorized Representative or Application Point of Contact, included in the Application, may submit the Application in AMIS. If an Authorized Representative or Application Point of Contact does not submit the Application, the Application will be deemed ineligible.
However, in cases where a federal government administrative or technological error directly resulted in precluding an Applicant from submitting the SF-424, the Application, or creating an AMIS account, or precluding an Applicant from submitting the Title VI Compliance Worksheet by the deadlines stated in this NOFA, Applicants are provided the opportunity to submit a written request for acceptance of late submissions. Be aware that unexpected delay in a federal government process does not in and of itself constitute a federal government administrative or technological error. The CDFI Fund will only approve the late submission of the SF-424, the Application, the Title VI Compliance worksheet, or the late creation of an AMIS account if the Applicant demonstrates that an unexpected delay was the direct result of a federal government administrative or technological error.
a. A Recipient shall use Base-FA award funds only for the eligible activities described in Section II. (C)(1) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, Base-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. Base-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay Base-FA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use PPC-FA award funds only for the eligible activities described in Section II. (C)(5) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, PPC-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. PPC-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay PPC-FA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use DF-FA award funds only for the eligible activities described in Section II. (C)(2) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, DF-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. DF-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay DF-FA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use HFFI-FA award funds only for the eligible activities described in Section II. (C)(4) of this NOFA and its Assistance Agreement.
b. With the exception of Depository Institution Holding Company Applicants, HFFI-FA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
c. HFFI-FA award funds shall only be paid to the Recipient.
d. The CDFI Fund, in its sole discretion, may pay HFFI-FA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
e. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
a. A Recipient shall use TA award funds only for the eligible activities described in Section II. (C) (3) of this NOFA and its Assistance Agreement.
b. A Sponsoring Entity Recipient must create the Emerging CDFI as a legal entity no later than the end of the first year of the Period of Performance. Upon creation of the Emerging CDFI, the Sponsoring Entity must request the CDFI Fund to amend the Assistance Agreement to add the Emerging CDFI as a co-Recipient. The Sponsoring Entity must add the Emerging CDFI as a co-Recipient within 90 days the end of the first year of the Period of Performance. The Sponsoring Entity must then transfer any remaining balances and/or assets derived from the TA award to the Emerging CDFI.
c. With the exception of Depository Institution Holding Company Applicants, TA awards may not be used to support the activities of, or otherwise be passed through, transferred, or co-awarded to, third-party entities, whether Affiliates, Subsidiaries, or others, unless done pursuant to a merger or acquisition or similar transaction, and with the CDFI Fund's prior written consent.
d. TA award funds shall only be paid to the Recipient.
e. The CDFI Fund, in its sole discretion, may pay TA award funds in amounts, or under terms and conditions, which are different from those requested by an Applicant.
f. The Recipient must comply, as applicable, with the Buy American Act of 1933, 41 U.S.C. 8301-8303 and section 2 CFR 200.216 of the Uniform Requirements, with respect to any Direct Costs.
i.
For non-regulated Applicants, the CDFI Fund will evaluate the financial health and viability of each non-regulated Applicant using financial information provided by the Applicant. For the financial analysis, each non-regulated Applicant will receive a Total Financial Composite Score on a scale of one (1) to five (5), with one (1) being the highest rating. The Total Financial Composite Score is based on the analysis of twenty-three (23) financial indicators. Applications will be grouped based on the Total Financial Composite Score. Applicants must receive a Total Financial Composite Score of one (1), two (2), or three (3) to advance to Step 3. Applicants that receive an initial Total Financial Composite Score of four (4) or five (5) will be re-evaluated and re-scored by CDFI Fund staff. If the Total Financial Composite Score remains four (4) or five (5) after CDFI Fund staff review, the Applicant will not advance to Step 3.
ii.
c.
Based on funding availability for NACA Base-FA Applicants, the CDFI Fund reserves the right to limit the number of Applicants that progress from Step 3 to Step 4 to ensure that the CDFI Program can meaningfully vary award amounts among Applicants with different Step 4 Policy Objective scores, while maintaining minimum award amounts specified in Table 2. In cases where funding availability is not sufficient to progress all Applicants within the top 70% of the NACA FA Applicant pool from Step 3 to Step 4, priority will be given to Applicants that score highest on the Total Business Plan Score.
d.
The CDFI Fund also conducts a due diligence review for Applicants that includes an analysis of programmatic risk factors including, but not limited to: history of performance in managing Federal awards (including timeliness of reporting and compliance); ability to meet FA Objective(s) selected by Base-FA Applicants in their Applications; reports and findings from audits; and ability to effectively implement federal requirements, each of which could impact the Total Policy Objective Review Score.
e.
(A) Applicants with a 3/31 fiscal year end date will treat FY 2023 as their most recent historic fiscal year and FY 2024 as their current year.
(B) Applicants with a 6/30 fiscal year end date and a completed FY 2023 audit will treat FY 2023 as their most recent historic fiscal year and FY 2024 as their current year.
(C) Applicants with a 6/30 fiscal year end date but without a completed FY 2023 audit will treat FY 2022 as their most recent historic fiscal year and FY 2023 as their current year.
(D) Applicants with a 9/30 fiscal year end date will treat FY 2022 as their most recent historic fiscal year and FY 2023 as their current year.
(E) Applicants with a 12/31 fiscal year end date will treat FY 2022 as their most recent historic fiscal year and FY 2023 as their current year.
The CDFI Fund conducts additional levels of due diligence for Applications that are under consideration for an HFFI-FA award. Award amounts may be reduced from the requested award amount as a result of this analysis. The CDFI Fund may reduce awards sizes from requested amounts based on certain variables, including but not limited to, an Applicant's loan disbursement activity, total portfolio outstanding, or compliance with prior HFFI-FA awards. Lastly, the CDFI Fund may consider the geographic diversity of Applicants when making its funding decisions.
An Applicant that is a Certified CDFI will be evaluated on the demonstrated need for a TA award to build the CDFI's capacity, further the Applicant's strategic goals, and achieve impact
Each TA Application will be evaluated by one internal CDFI Fund reviewer. The Business Plan Reivew of all Applications will be reviewed in accordance with CDFI Fund standard reviewer evaluation materials.
The CDFI Fund conducts additional levels of due diligence for Applications that are under consideration for an award. This due diligence includes an analysis of programmatic and financial risk factors including, but not limited to, financial stability, history of performance in managing Federal awards (including timeliness of reporting and compliance), reports and findings from audits, and the Applicant's ability to effectively implement federal requirements. The CDFI Fund will also evaluate the compliance risk of each Applicant using information provided in the Application as well as an Applicant's reporting history, reporting capacity, and performance risk with respect to meeting the PG&Ms set forth in the Assistance Agreement. Each Applicant will receive a Total Compliance Composite Score on a scale of one (1) to five (5), with one (1) being the highest rating. Applicants that receive an initial Total Compliance Composite Score of four (4) or five (5) will be re-evaluated by CDFI Fund staff. If the Applicant is deemed a high compliance risk after CDFI staff review, the Applicant will not be considered for an award. The CDFI Fund will also evaluate the Applicant's ability to meet CDFI Certification criteria of being a legal entity and a non-government entity. Award amounts may be reduced as a result of the due diligence analysis in addition to consideration of the Applicant's funding request and similar factors. Lastly, the CDFI Fund may consider the geographic diversity of Applicants when making its funding decisions.
The CDFI Fund will minimize the time between the Recipient incurring costs for eligible activities and award payment(s) in accordance with the Uniform Requirements. Advanced payments for eligible activities will occur no more than one year in advance of the Recipient incurring costs for the eligible activities. Following the initial closing, there may be subsequent closings involving additional award payments. Any documentation in addition to the Assistance Agreement that is connected with such subsequent closings and payments shall be properly executed and timely delivered by the Recipient to the CDFI Fund.
In addition, the CDFI Fund reserves the right, in its sole discretion, to terminate and rescind the Assistance Agreement and the award made under this NOFA pending the criteria described in Table 18.
Each Recipient is responsible for the timely and complete submission of the Annual Reporting Requirements. Sponsoring Entities with co-Recipients will be informed of any changes to reporting obligations at the time the Emerging CDFI is joined to the Assistance Agreement. The CDFI Fund reserves the right to contact the Recipient and additional entities or signatories to the Assistance Agreement to request additional information and/or documentation. The CDFI Fund will use such information to monitor each Recipient's compliance with the requirements of the Assistance Agreement and to assess the impact of the NACA Program. The CDFI Fund reserves the right, in its sole discretion, to modify these reporting requirements, including increasing the scope and frequency of reporting, if it determines it to be appropriate and necessary; however, such reporting requirements will be modified only after notice to Recipients.
The cost principles used by Recipients must be consistent with federal cost principles and support the accumulation of costs as required by the principles, and must provide for adequate documentation to support costs charged to the NACA Program award. In addition, the CDFI Fund will require Recipients to: maintain effective internal controls; comply with applicable statutes, regulations, and the Assistance Agreement; evaluate and monitor compliance; take appropriate action when not in compliance; and safeguard personally identifiable information.
A. The CDFI Fund will respond to questions concerning this NOFA and the Application between the hours of 9 a.m. and 5 p.m. Eastern Time, starting on the date that the NOFA is published through the date listed in Table 1 and Table 12. The CDFI Fund strongly recommends Applicants submit questions to the CDFI Fund via an AMIS Service Request to the NACA Program, Certification, Compliance Monitoring and Evaluation (CCME), or IT Help Desk. The CDFI Fund will post on its website responses to reoccurring questions received about the NOFA and Application. Other information regarding the CDFI Fund and its programs may be obtained from the CDFI Fund's website at
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Bradley T. Smith, 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 Enforcement, Compliance and Analysis, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On December 5, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
1. DE GEETERE, Tom (a.k.a. DE GEETERE, Tom Maria; a.k.a. DE GEETERE, Tom Maria Leonza Edward), Belgium; DOB 26 Feb 1964; nationality Belgium; Gender Male; Passport EH641188 (Belgium) expires 23 Aug 2014 (individual) [RUSSIA-EO14024] (Linked To: EUROPEAN TECHNICAL TRADING).
Designated pursuant to section 1(a)(iii)(C) of Executive Order 14024 of April 15, 2021, “Blocking Property With Respect To Specified Harmful Foreign Activities of the Government of the Russian Federation,” 86 FR 20249, 3 CFR, 2021 Comp., p. 542 (Apr. 15, 2021) (E.O. 14024), for being or having been a leader, official, senior executive officer, or member of the board of directors of EUROPEAN TECHNICAL TRADING, a person whose property and interests in property are blocked pursuant to E.O. 14024.
2. DE GEETERE, Hans (a.k.a. DE GEETERE, Hans Maria Christiane Herve; a.k.a. “DE GEETERE, Hmch”; a.k.a. “Dick Boss”), Paul Parmentierlaan 121, Knokke Heist 8300, Belgium; Nyckeesstraat 4, Knokke Heist 8300,
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the defense and related materiel sector of the Russian Federation economy.
3. KULEMEKOV, Vladimir (a.k.a. KULEMEKOV, Vladimir Janovich), 64-1-215 Choroshevskoye Shosse, Moscow 123007, Russia; 9 2nd Verkhny Mikhailovsky Proezd, Building 2, Moscow 115007, Russia; DOB 26 Mar 1946; nationality Russia; Gender Male (individual) [RUSSIA-EO14024] (Linked To: DE GEETERE, Hans).
Designated pursuant to section 1(a)(vi)(B) of E.O. 14024 for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, DE GEETERE, Hans, a person whose property and interests in property are blocked pursuant to E.O. 14024.
4. SKVORTSOV, Sergey (a.k.a. SKVORTSOV, Sergei Nikolaevich), Nacka, Sweden; DOB 28 Jul 1963; POB Perm, Russia; nationality Sweden; alt. nationality Russia; Gender Male; Passport 85338519 (Sweden) expires 30 Oct 2017 (individual) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of E.O. 14024 for operating or having operated in the defense and related materiel sector of the Russian Federation economy.
5. BEUN, Kimberley Catriona Lucinda, Eeklo, Belgium; DOB 21 May 1988; POB Oostburg, Netherlands; nationality Netherlands; Gender Female; Passport NUBF7PLH1 (Netherlands) expires 31 Oct 2024 (individual) [RUSSIA-EO14024] (Linked To: ERINER LIMITED).
Designated pursuant to section 1(a)(vii) of E.O. 14024 for having acted or purported to act for or on behalf of, directly or indirectly, ERINER LIMITED, a person whose property and interests in property are blocked pursuant to E.O. 14024.
1. HASA NEDERLAND B.V., Nieuwstraat 56 F, Sluis 4524 EG, Netherlands; 73/B Burgemeester Bosstraat, Rotterdam 3043 GC, Netherlands; Belgium; Target Type Private Company; Branch Unit Number 000009753184 (Netherlands); Enterprise Number 0877031240 (Belgium); Registration Number 32065154 (Netherlands) [RUSSIA-EO14024] (Linked To: THE MOTHER ARK LTD).
Designated pursuant to section 1(a)(vii) of E.O. 14024 for being owned or controlled by, or having acted or purported to act for or on behalf of, directly or indirectly, THE MOTHER ARK LTD, a person whose property and interests in property are blocked pursuant to E.O. 14024.
2. AHETEI LIMITED, Orthodoxou Tower, Floor 3, 44 Inomenon Ethnon, Larnaca 6042, Cyprus; Organization Established Date 28 Jan 2022; Target Type Private Company; Registration Number HE430579 (Cyprus) [RUSSIA-EO14024] (Linked To: LAR VORTO SERVICES LIMITED).
Designated pursuant to section 1(a)(vii) of E.O. 14024 for being owned or controlled by, or having acted or purported to act for or on behalf of, directly or indirectly, LAR VORTO SERVICES LIMITED, a person whose property and interests in property are blocked pursuant to E.O. 14024.
3. ERINER LIMITED, Orthodoxou Tower, Floor 3, 44 Inomenon Ethnon, Larnaca 6042, Cyprus; Kingsfordweg 321, 1043 GR Limassol, Cyprus; Organization Established Date 28 Jun 2021; Target Type Private Company; Business Registration Number HE423113 (Cyprus) [RUSSIA-EO14024] (Linked To: DE GEETERE, Hans).
Designated pursuant to section 1(a)(vii) of E.O. 14024 for being owned or controlled by, or having acted or purported to act for or on behalf of, directly or indirectly, DE GEETERE, Hans, a person whose property and interests in property are blocked pursuant to E.O. 14024.
4. EUROPEAN TECHNICAL TRADING (a.k.a. ETT DISTRIBUTION BV; a.k.a. EUROPEAN TT DISTRIBUTION; a.k.a. “ETT”), 24, Booiebos, Gent 9031, Belgium; 1, Ijsbeerlaan, Nevele 9850, Belgium; Target Type Private Company; Enterprise Number 0677.702.574 (Belgium) [RUSSIA-EO14024] (Linked To: DE GEETERE, Hans).
Designated pursuant to section 1(a)(vi)(B) of E.O. 14024 for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, DE GEETERE, Hans, a person whose property and interests in property are blocked pursuant to E.O. 14024.
5. EUROPEAN TRADING TECHNOLOGY B.V., Nieuwstraat 56F, 4524 EG Sluis, Netherlands; Organization Established Date 04 Nov 2016; Target Type Private Company; Registration Number 67226205 (Netherlands) [RUSSIA-EO14024] (Linked To: DE GEETERE, Hans).
Designated pursuant to section 1(a)(vii) of E.O. 14024 for being owned or controlled by, or having acted or purported to act for or on behalf of, directly or indirectly, DE GEETERE, Hans, a person whose property and interests in property are blocked pursuant to E.O. 14024.
6. KNOKKE HEIST SUPPORT CORPORATION MANAGEMENT, Paul Parmentierlaan 121, Knokke-Heist 8300, Belgium; Nyckeesstraat 4, Knokke-Heist 8300, Belgium; Organization Established Date 13 Nov 2019; Target Type Private Company; Branch Unit Number 2299715293 (Belgium); Registration Number 0737640854 (Belgium) [RUSSIA-EO14024] (Linked To: DE GEETERE, Hans).
Designated pursuant to section 1(a)(vii) of E.O. 14024 for being owned or controlled by, or having acted or purported to act for or on behalf of, directly or indirectly, DE GEETERE, Hans, a person whose property and interests in property are blocked pursuant to E.O. 14024.
7. LAR VORTO SERVICES LIMITED, Orthodoxou Tower, Floor 3, 44 Inomenon Ethnon, Larnaca 6042, Cyprus; Organization Established Date 10 Nov 2015; Target Type Private Company; Business Registration Number HE348790 (Cyprus) [RUSSIA-EO14024] (Linked To: ERINER LIMITED).
Designated pursuant to section 1(a)(vi)(B) of E.O. 14024 for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, ERINER LIMITED, a person whose property and interests in property are blocked pursuant to E.O. 14024.
8. M AND S TRADING (a.k.a. M AND S TRADING HK), Room 14F A, Success Industrial Building, No. 17 Sheung Hei St, San Po Kong, Kowloon, Hong Kong, China; Target Type Private Company; Registration Number 51875901000 (Hong Kong) [RUSSIA-EO14024] (Linked To: DE GEETERE, Hans).
Designated pursuant to section 1(a)(vi)(B) of E.O. 14024 for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, DE GEETERE, Hans, a person whose property and interests in property are blocked pursuant to E.O. 14024.
9. THE MOTHER ARK LTD, Orthodoxou Tower, Floor 3, 44 Inomenon Ethnon, Larnaca 6042, Cyprus; Organization Established Date 13 Apr 2022; Target Type Private
Designated pursuant to section 1(a)(vii) of E.O. 14024 for being owned or controlled by, or having acted or purported to act for or on behalf of, directly or indirectly, DE GEETERE, Hans, a person whose property and interests in property are blocked pursuant to E.O. 14024.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20006, (202) 266-4688 or email
No substantive changes have been made to this form. The respondent burden has decreased due to the estimated number of receivables averaged over the past year.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice by clicking on the following link
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20420, (202) 266-4688 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
(a) The term “agency” means any authority of the United States that is an “agency” under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(b) The term “Federal funding and support programs for Tribal Nations” includes funding, programs, technical assistance, loans, grants, or other financial support or direct services that the Federal Government provides to Tribal Nations or Indians because of their status as Indians. It also includes actions or programs that do not exclusively serve Tribes, but for which Tribal Nations are eligible along with non-Tribal entities. It does not include programs for which both Indians and non-Indians are eligible.
(c) The terms “Tribes” and “Tribal Nations” mean any Indian tribe, band, nation, or other organized group or community considered an “Indian Tribe” under section 4 of the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5304.
(a) Within 240 days of the date of this order, the Director of OMB and the Domestic Policy Advisor shall, in consultation with the head of each agency that is a member of WHCNAA, and in consultation with Tribal leaders or their designees, develop guidance for assessing the additional funding each agency needs for its existing Federal funding and support programs for Tribal Nations to better live up to the Federal Government's trust responsibilities and help address the needs of all Tribal Nations.
(b) Within 540 days of the date of this order, the head of each agency that is a member of WHCNAA shall consult the guidance developed under subsection (a) of this section and submit a report to the Director of OMB and the Domestic Policy Advisor that identifies the funding needed for each agency's existing Federal funding and support programs for Tribal Nations to better live up to the Federal Government's trust responsibilities and help address the needs of Tribal Nations in the agency's areas of responsibility.
(c) The Director of OMB and the Domestic Policy Advisor shall develop, based on the agency reports provided under subsection (b) of this section and in consultation with Tribes and WHCNAA, recommendations for the Federal Government to take steps toward better living up to its trust responsibilities and helping address the needs of all Tribal Nations. These recommendations should identify any budgetary, statutory, regulatory, or other changes that may be necessary to ensure that Federal laws, policies, practices, and programs support Tribal Nations more effectively. These recommendations shall be submitted to the President, and shall be considered by agencies and OMB in developing the President's Budget beginning with the next regular President's Budget development cycle.
(d) After submission of the reports and recommendations described in subsections (b) and (c) of this section, the Executive Director of WHCNAA shall annually convene appropriate representatives of WHCNAA member agencies to share best practices, track progress on implementing the recommendations, and evaluate the need for reassessment of funding.
(e) Following submission of the recommendations described in subsection (c) of this section, WHCNAA member agencies shall report annually to the Director of OMB on progress made in response to such recommendations. The Director of OMB shall provide a summary of agencies' progress and any new recommendations to Tribal leaders at the annual White House Tribal Nations Summit.
(a) Agencies shall design, revise, provide waivers for, and otherwise administer Federal funding and support programs for Tribal Nations to achieve the following objectives, to the maximum extent practicable and consistent with applicable law:
(b) Agencies, in coordination with OMB and consistent with applicable law, should assess Tribal Nations' access to competitive grant funding by tracking applications from Tribal Nations to competitive grant programs and their funding award success rate.
(c) Agencies should proactively and systematically identify and address, where possible, any additional undue burdens not discussed in this order that Tribal Nations face in accessing or effectively using Federal funding and support programs for Tribal Nations and their root causes, including those causes that are regulatory, technological, or process-based.
(d) Agencies' implementation efforts shall appropriately maintain or enhance protections afforded under existing Federal law and policy, including those related to treaty rights and trust obligations, Tribal sovereignty and jurisdiction, civil rights, civil liberties, privacy, confidentiality, Indigenous Knowledge, and information access and security.
(e) The WHCNAA, with support from the Secretary of the Interior as appropriate, shall ensure that Tribal Nations can easily identify in one location all sources of Federal funding and support programs for Tribal Nations, and all agencies that provide such funding shall coordinate with the Secretary of the Interior or the Secretary's designee to compile and regularly update the necessary information to support this resource.
(f) Agencies shall identify opportunities, as appropriate and consistent with applicable law, to modify their respective regulations, internal and
(g) Agencies shall issue internal guidance or directives, and provide additional staff training or support, as needed and as appropriate and consistent with applicable law, to promote the implementation of the leading practices identified in this section and their integration into agencies' processes for developing policies and programs.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) Agencies not covered by section 2(a) of this order, including independent agencies, are strongly encouraged to comply with the provisions of this order.
(d) This order is not intended to, and does not, create any right, benefit, or trust responsibility, 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.
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 December 26, 2023.
1.
1.
Board of Governors of the Federal Reserve System.