Agricultural Marketing Service
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Army Department
Navy Department
Federal Energy Regulatory Commission
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Transportation Security Administration
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
Institute of Museum and Library Services
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Foreign Assets Control Office
Internal Revenue Service
Office of Investment Security
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U.S. Citizenship and Immigration Services, DHS.
Final rule; correction.
The Department of Homeland Security (DHS) is making corrections to a final rule that appeared in the
This correction is effective at 12 a.m. Eastern Time on October 15, 2019.
Mark Phillips, Residence and Naturalization Division Chief, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts NW, Washington, DC 20529-2140; telephone 202-272-8377.
On August 14, 2019, DHS published a final rule, Inadmissibility on Public Charge Grounds (FR Doc. 19-17142).
In the final rule, there were a number of technical and typographical errors that are identified and corrected by the Correction of Errors section of this correcting document. The provisions in this correcting document are effective as if they had been included in the final rule document that appeared in the August 14, 2019
On page 41292 in the
On page 41296 in the
On page 41297, in the third line at the top of the first column, DHS erroneously referred to the word “exempting” when discussing a change in the final rule that expands the exclusion from consideration of receipt of Medicaid to Medicaid received by aliens under the age of 21 and pregnant women (including women for 60 days after the last day of pregnancy). In the Correction of Errors section of this document, DHS is correcting this error by revising this sentence.
On page 41302 in Table 1-Summary of Major Provisions and Economic Impacts of the Final Rule, fourth row, third column, DHS erroneously stated that the “total annual direct costs of the final rule will range from about $45.5 to $131.2 million.” The statement was inadvertently left in Table 1 even after costs of the rule were updated elsewhere in the final rule and the Regulatory Impact Analysis to reflect that DHS will not be requesting Form I-944 from applicants for extension of stay and change of status. DHS is removing the incorrect cost range statement through the Correction of Errors section of this document.
On page 41314, DHS inadvertently added footnote 83 the end of the last sentence of the second paragraph in the third column. For editorial consistency, DHS is deleting this footnote through the Correction of Errors section of this document.
On page 41328, in the second column, DHS inadvertently omitted the word “it” from the first sentence in the third paragraph. DHS is adding that word through the Correction of Errors section of this document.
On page 41334 at the top of the second column, first line, the word “the” was inadvertently excluded. DHS is therefore correcting this omission by adding the word “the.”
On page 41334 in the last sentence of the first partial paragraph in the second column in the comment response, DHS inadvertently left in a word “may” in addition to the word “will” when describing the impact of the public
On page 41336 in the first column, in the third sentence, DHS inadvertently omitted words “time the” after “valid T nonimmigrant status at the,” making the sentence incomplete. DHS is therefore correcting this omission by adding the words “time the.”
On pages 41336 through 41341, in the heading for the third column that appears at the top of Table 2 on each page, DHS is correcting the title of the heading to accurately reflect the form numbers used to request change of status. DHS inadvertently referred to Form I-539 as “I-Form 539” in the heading and is correcting that reference to read “Form I-539.”
On page 41336, in the first row and third column of Table 2, DHS inadvertently omitted the word “Form” before “I-539.” DHS is correcting this omission by adding the word “Form.”
On page 41337, in the twelfth row and second and third columns of Table 2, DHS inadvertently omitted the word “Form” before “I-539.” DHS is correcting this omission by adding the word “Form.”
On page 41338, in the eleventh row and third column of Table 2, DHS inadvertently omitted the word “Form” before “I-539.” DHS is correcting this omission by adding the word “Form.”
On page 41338, in the fifteenth row and second column of Table 2, DHS inadvertently omitted the word “Form” before “I-539” and a comma after “I-539”. DHS is correcting these omissions by adding the word “Form” before “I-539” and “,” after “I-539”.
On page 41340, in the tenth row and third column of Table 2, DHS inadvertently added the word “Files” twice.
On page 41340, in the eleventh row and third column of Table 2, DHS inadvertently added the word “Files” twice.
On page 41341, at the bottom of Table 2 after the “*”, DHS made several typographical errors. DHS is correcting those errors and the sentence after the “*” will read: “Includes questions on Form I-129 and Form I-539 about receipt of public benefits since the nonimmigrant status was approved. Whether the alien must file a Form I-129 or a Form I-539 depends on the status the alien is applying to change or to extend. If more than one person is applying using the Form I-539, the Form I-539A, Supplemental Information for Application to Extend/Change Status, is submitted to provide all of the requested information for each additional applicant listed.”
On page 41342 at the bottom of Table 3 after the “*”, DHS made several typographical errors by referring to the proposed rule rather than the final rule and by not including all the conditions set forth in the final rule upon which a public charge bond may be cancelled. DHS is correcting these errors and the sentence after the “*” will read: “If an alien is found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I-945). 8 CFR 213.1, as amended in the final rule, describes the circumstances under which a public charge bond may be cancelled (Form I-356).”. DHS is making the same corrections to similar errors on page 41343 at the bottom of Table 4 after the “*”, on page 41344 at the bottom of Table 5 after the “*”, on page 41345 at the bottom of Table 6 after the “*”, and on page 41346 at the bottom of Table 7 after the “*”.
On page 41345 in Table 7 Applicability of INA 212(a)(4) to Other Applicants Who Must Be Admissible, in the fourth row, first and second columns, DHS is correcting the language regarding the availability of waivers with respect to certain entrants (
On page 41369, in the first paragraph in the third column, DHS inadvertently omitted the words “and non-cash benefits” when generally describing the public benefits included in the rule. DHS is adding these words to correctly characterize that non-cash benefits included in this rule are those being provided for food, nutrition, housing, and healthcare. This correction is made for consistency with a similar reference on p. 41349 of the final rule.
On pages 41486—41488, DHS included typographical errors in the Table numbers. The Table that begins on page 41486 and printed through page 41488 should read “Table 7” instead of “Table 2.” On page 41486, third column, last full sentence prior to the table, DHS needs to make corresponding corrections to the text so that it references “Table 7” instead of “Table 2.” On page 41487, in Table 2—Summary of Major Changes and Economic Impacts of the Final Rule, third row, third column, DHS erroneously stated that the total annual direct cost of the final rule will range from about $45.5 to $131.2 million. The statement was inadvertently left in Table 2 even after costs of the rule were updated elsewhere in the rule and the Regulatory Impact Analysis to reflect that DHS will not be requesting Form I-944 from applicants for extension of stay and change of status. DHS is removing the incorrect cost range statement through the Correction of Errors section in this correction notice.
On page 41488, DHS is correcting and renumbering “Table 8—OMB A-4 Accounting Statement” to read “Table 9—OMB A-4 Accounting Statement.” DHS is also making corresponding changes to the reference to “Table 8” on page 41488 in the second column, last full sentence so that the sentence refers the reader to what will now be “Table 9.”
On pages 41493, in the third column, in the last full sentence, DHS is renumbering the tables to correct a typographical error earlier in the final rule. As such, the last full sentence on page 41493 should refer the reader to “Table 10” instead of “Table 9.”
On pages 41494-41497, “Table 9—Summary of Forms” is being corrected to read “Table 10—Summary of Forms.”
On page 41501, in paragraph (b)(7) of section 8 CFR 212.21, in the provisions excluding public benefits receipt from consideration, rather than referring to spouses and children of individuals serving in the U.S. Armed Forces, DHS inadvertently referred to spouses and children of aliens serving in the U.S. Armed Forces. DHS thereby inadvertently afforded the exclusion only to spouses and children of aliens serving in the U.S. Armed Forces but not to spouses and children of all individuals serving in the U.S. Armed
On page 41502, in the first column, in line 2 of paragraph (d)(1)(iii), DHS inadvertently omitted the word “section” after “as defined in.” On the same page, in the first column, DHS inadvertently used the word “children's” in paragraph (d)(1)(iv), between the words “percent of” and “financial support”, and omitted a comma between the phrase “as evidenced by a child support order or agreement” and before the phrase “a custody order or agreement.” Finally, on the same page, in the second column, line 1 of paragraph (d)(2)(vii), DHS inadvertently used the word “individual(s)” instead of the word “individuals,” and “such individual's financial support or who is listed” instead of “each individual's financial support, or who is listed”. DHS is correcting these errors.
On page 41502, in the second column, in paragraph (a) of section 8 CFR 212.22, DHS inadvertently omitted the phrase explaining the aggregation of public benefits for purposes of the duration threshold. This parenthetical was included throughout the preamble,
On page 41503, DHS inadvertently made several typographical errors. In the second column, at the end of paragraph (b)(4)(i)(D), DHS inadvertently added the word “whether” after the word “and.” In the second column, at the end of paragraph (b)(4)(ii)(A)(
On page 41504, in the first column, paragraph (b)(5)(ii)(C), in the third line, DHS inadvertently added the word “and” after the word “licenses;”. In the first column, paragraph (b)(5)(ii)(D), at the end of the third line of (D), DHS inadvertently placed a “.” instead of an “; and”. In the first column, in line 5 of paragraph (b)(6)(i), DHS inadvertently added the word “for” before the word “himself”. In the first column in paragraph (b)(7), DHS inadvertently designated paragraphs (ii)(A) through (C) as paragraphs (i)(A) through (C). DHS is correcting these errors.
On page 41504, in the second column, in paragraph (c)(1)(ii) of 8 CFR 212.22, DHS inadvertently omitted the phrase explaining the aggregation of public benefits for purposes of the duration threshold. Therefore, DHS is correcting this omission by including the parenthetical language “(such that, for instance, receipt of two benefits in one month counts as two months)” after the word “period” in paragraph 212.22(c)(1)(ii).
On page 41505, in the second column, at the end of paragraph (a)(19)(ii), DHS inadvertently placed a “.” instead of a “;”. DHS is correcting this error.
On page 41506, in the first column, in line 7 of paragraph (b), DHS omitted a reference to paragraph “(c)(1)” after “212.22”. In the first column, in line 14 of paragraph (c), DHS inadvertently added a “,” between the words “equivalent” and “is”. Finally, in the first column, in paragraph (d) of 8 CFR 213.1, DHS inadvertently included the phrase “within any 364month period” instead of “within any 36-month period” after the clause “for more than 12 months in the aggregate”, and included a “,” instead of a “)” after the words “two months”. DHS is correcting these errors.
On page 41507, in the first column, in section 8 CFR 213.1(h)(2)(i), rather than referring to spouses and children of individuals serving in the U.S. Armed Forces in the provisions pertaining to the public benefits receipt exclusion, DHS inadvertently referred to spouses and children of aliens serving in the U.S. Armed Forces. As noted above with respect to corrections on page 41501, this inadvertently rendered the public benefits receipt exclusion applicable only to spouses and children of aliens serving in the U.S. Armed Forces, but not to spouses and children of all individuals serving in the U.S. Armed Forces, including aliens, U.S. citizens, and U.S. nationals serving in the U.S. Armed Forces.
On page 41508, in columns two and three, in paragraphs (a) and (c)(4) of 8
In addition to these corrections, DHS is making a number of minor technical and typographical corrections to the regulatory text as listed in the Correction of Errors section of this document.
When DHS amended section 8 CFR 248.1 by redesignating paragraphs (b) through (e) as paragraphs (c) through (f), and adding a new paragraph (b), DHS did not make conforming technical changes to paragraph (h)(20) of section 8 CFR 214.2, which cross references paragraph (b) of section 8 CFR 248.1. DHS is adding a technical amendment through new amendatory language to correct the cross reference in paragraph (h)(20) of section 8 CFR 214.2 and refer to 8 CFR 248.1(c) rather than 248.1(b).
Section 553(b) of the Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the
DHS believes there is good cause for publishing this correction document without prior notice and opportunity for public comment and with an effective date of less than 30 days because DHS finds that such procedures are unnecessary. This document corrects technical and typographic errors in the preamble (including tables) and regulatory text, but does not make substantive changes to the policies that were adopted in the final rule. This document merely conforms erroneous portions of the final rule to the agency's clearly expressed contemporaneous intent. As a result, this correcting document's sole function is to ensure that the information in the August 14, 2019 final rule accurately reflects the policies adopted in that final rule, prior to which DHS issued a notice of proposed rulemaking and received public comment. Therefore, DHS believes that it has good cause to waive the notice and comment and effective date requirements of section 553 of the APA.
Accordingly, the final rule at 84 FR 41292 (FR Doc. 19-17142) is corrected as follows:
1. On page 41292 in the
DHS is making the following corrections in the Supplementary Information section of the August 14, 2019 final rule.
1. On page 41296 in the third column, in the last full paragraph, in the first line, replace the word “exempt” with the word “exclude” to read: “Lastly, DHS proposed to exclude . . .”
2. On page 41297, in the third line at the top of the first column, replace the word “exempting” with the word “excluding” to read: “* * * excluding Medicaid receipt by aliens under the age of 21 and pregnant women (including women for 60 days after the last day of pregnancy).”
3. On page 41302, Table 1—Summary of Major Provisions and Economic Impacts of the Final Rule, the fourth row is corrected to read as follows:
4. On page 41314, delete footnote 83 at the end of the last sentence of the second paragraph in the third column, and renumber footnotes 84 through 867, as footnotes 83 through 866.
5. On page 41328 in the second column, add the word “it” between the words “that” and “does” and move “,” from after the word “so” to after the word “rule” to read: “DHS notes that it does have the authority to define public charge as it has in this rule, and in doing so decide which public benefits are considered for the purposes of this rule.”
6. On page 41334, at the top of the second column, adding the word “the” to correct the first line to read: “be subject to the public charge ground of inadmissibility and which are exempt.”
7. On page 41334, in the second column, in the last sentence of the first partial paragraph in the second column that continues the comment response, correct the sentence to read: “DHS acknowledges that those dependents who are certified for or receiving public benefits under the authorization of another, such as the head of the household or the guardian, may be unaware of the receipt of public benefits but will, once the rulemaking is effective, be impacted by such receipt of public benefits, if they are subject to the public charge ground of inadmissibility.”
8. On page 41336 in the first column, correct the third sentence only (footnote 228 remains unchanged), to read: “For the reasons stated above, DHS is amending proposed 8 CFR 212.23(a)(17) in this final rule to clarify that T nonimmigrants seeking any immigration benefit subject to section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4)—except those described in section 212(a)(4)(D) of the Act, 8 U.S.C. 1182(a)(4)(D), who must file an affidavit of support—are exempt from the public charge ground of inadmissibility, provided that the T nonimmigrant seeking the immigration benefit is in valid T nonimmigrant status at the time the benefit request is properly filed with USCIS, and at the time the benefit request is adjudicated.”
9. On pages 41336 through 41341, in the heading for the third column that appears at the top of Table 2 on each page, correct the title of the heading to read: “Eligible to apply for change of status (
10. On page 41336, in the first row and third column of Table 2, correct the omission of the word “Form” before “I-539” by adding the word “Form” for the entry to read: “Yes. Files Form I-539, 8 CFR 248.1(a).”
11. On page 41337, in the twelfth row and second and third columns of Table 2, correct the omission of the word “Form” before “I-539” by adding the word “Form” for the entry to read: “Yes. Files Form I-539, 8 CFR 248.1(a).”
12. On page 41338, in the eleventh row and third column of Table 2, correct the omission of the word “Form” before “I-539” by adding the word “Form” for the entry to read: “Yes, subject to receiving a waiver of the foreign residence requirement, if necessary, Files Form I-539.”
13. On page 41338, in the fifteenth row and second column of Table 2, correct the omission of the word “Form” before “I-539” by adding the word “Form” and a “,” after “I-539”, for the entry to read: “Yes. Files I-539, 8 CFR 214.1(c)(1) and (2).”
14. On page 41340, in the tenth row and third column of Table 2, correct a typographical error to delete the second “Files”, to read: “Yes. Files Form I-539.”
15. On page 41340, in the eleventh row and third column of Table 2, correct a typographical error to delete the second “Files”, to read: “Yes. Files Form I-539.”
16. On page 41341, at the bottom of Table 2 after the “*”, correct the sentence to read: “Includes questions on Form I-129 and Form I-539 about receipt of public benefits since the nonimmigrant status was approved. Whether the alien must file a Form I-129 or a Form I-539 depends on the status the alien is applying to change or to extend. If more than one person is applying using the Form I-539, the Form I-539A, Supplemental Information for Application to Extend/Change Status, is submitted to provide all of the requested information for each additional applicant listed.”
17. On page 41342 at the bottom of Table 3 after the “*”, correct the two sentences that follow to read: “If an alien is found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I-945). 8 CFR 213.1, as amended in the final rule, describes the circumstances under which a public charge bond may be cancelled (Form I-356).”
18. On page 41343 at the bottom of Table 4 after the “*”, correct the two sentences that follow to read: “If an alien is found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I-945). 8 CFR 213.1, as amended in the final rule, describes the circumstances under which a public charge bond may be cancelled (Form I-356).”
19. On page 41344 at the bottom of Table 5 after the “*”, correct the two sentences that follow to read: “If an alien is found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I-945). 8 CFR 213.1, as amended in the final rule, describes the circumstances under which a public charge bond may be cancelled (Form I-356).”
20. On page 41345 at the bottom of Table 6 after the “*”, correct the two sentences that follow to read: “If an alien is found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I-945). 8 CFR 213.1, as amended in the final rule, describes the circumstances under which a public charge bond may be cancelled (Form I-356).”
21. On page 41345, Table 7 Applicability of INA 212(a)(4) to Other Applicants Who Must Be Admissible, correct the fourth row to read:
22. On page 41346 at the bottom of Table 7 after the “*”, correct the two sentences that follow to read: “If an alien is found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I-945). 8 CFR 213.1, as amended in the final, rule describes the circumstances under which a public charge bond may be cancelled (Form I-356).”
23. On page 41369 in the third column, correct the third sentence of the first paragraph to read: “Because of the nature of the public benefits that would be considered under this rule—which are generally means-tested and provide
24. On pages 41380-41381, starting in the last paragraph on p. 41380, correct the last sentence to read: “Because of the nature of the public benefits that would be considered under this rule—which are generally means-tested and provide cash for income maintenance, and non-cash benefits for basic living needs such as food, nutrition, housing, and healthcare—DHS believes that receipt of such benefits is an important factor to consider, in the totality of the circumstances, when making a public charge determination.”
25. On page 41486, third column, correct the last full sentence so that it references “Table 7” instead of “Table 2” so that the sentence reads “Table 7 provides a more detailed summary of the final provisions and their impacts.”
26. On pages 41486—41488, correct a typographical error so that the Table title that currently reads “Table 2—Summary of Major Changes and Economic Impacts of the Final Rule” so that the Table reads “Table 7—Summary of Major Provisions and Economic Impacts of the Final Rule.”
27. On page 41487, correct the third row of the table to read:
28. On page 41488 in the second column, last partial sentence before the footnote reference, change the Table number so that the sentence reads: “In addition to the impacts summarized above and as required by OMB Circular A-4, Table 9 presents the prepared accounting statement showing the costs associated with this final regulation.”
29. On page 41488, DHS is correcting and renumbering “Table 8—OMB A-4 Accounting Statement” to read “Table 9—OMB A-4 Accounting Statement.”
30. On page 41493, third column, last full sentence, correct the Table number referenced in the sentence to read: “Table 10 below is a listing of all forms impacted by this rule.”
31. On pages 41494-41497, “Table 9—Summary of Forms” is being corrected to read “Table 10—Summary of Forms.”
DHS is making the following corrections in the List of Subjects and Regulatory Amendments section of the August 14, 2019, final rule.
“(7) Public benefits, as defined in paragraphs (b)(1) through (b)(6) of this section, do not include any public benefits received by—
(i) An alien who at the time of receipt of the public benefit, or at the time of filing or adjudication of the application for admission or adjustment of status, or application or request for extension of stay or change of status is—
(A) Enlisted in the U.S. Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(B) Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or
(ii) The spouse or child, as defined in section 101(b) of the Act, of an individual who at the time of receipt of the public benefit by such spouse or child, or at the time of filing or adjudication of the spouse's or child's application for admission or adjustment of status, or application or request for extension of stay or change of status, had been:
(A) Enlisted in the U.S. Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(B) Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces.”
“(iv) The alien's other children, as defined in section 101(b)(1) of the Act, not physically residing with the alien, for whom the alien provides or is required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;”
“This provision does not apply where the nonimmigrant classification from which the alien seeks to change or to which the alien seeks to change is exempt from section 212(a)(4) of the Act, or where that section has been waived.”
Department of the Army, DoD.
Final rule.
This final rule removes DoD's regulation concerning the management of the misdemeanor criminal investigation program by Department of the Army personnel. This part conveys internal Army policy and procedures, and is unnecessary.
This rule is effective on October 2, 2019.
Jeffrey Pearce at 703-695-8499.
It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publicly available on the Department's website.
DoD internal guidance will continue to be published in Army Regulation 190-30, “Military Police Investigation,” available at
This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.
Crime, Investigations, Law enforcement, Law enforcement officers, Military law, Search warrants.
Patent and Trademark Office, Commerce.
Final rule, delay of effective date.
On July 31, 2019, the United States Patent and Trademark Office published in the
The effective date of the final rule published on July 31, 2019 (84 FR 37081) is delayed from October 5, 2019 to December 21, 2019.
Catherine Cain, Office of the Deputy Commissioner for Trademark Examination Policy,
The United States Patent and Trademark Office (USPTO) published in the
The effective date of the rule is being delayed to allow the USPTO additional time to prepare internally for implementation of the requirements associated with the mandate that applicants and registrants electronically file their trademark applications and all submissions associated with trademark applications and registrations, and that they designate an email address for receiving USPTO correspondence. This final rule would also provide the public an opportunity to more fully comprehend the nature of, and prepare to comply with, the new requirements before they are effective.
Moreover, the Director of the USPTO, pursuant to authority at 5 U.S.C. 553(b)(B), finds good cause to adopt the change in this final rule without prior notice and an opportunity for public comment, as such procedures would be impracticable and contrary to the public interest. Immediate implementation of the delay in effective date is in the public interest, because it would allow the USPTO additional time to prepare internally for implementation of the requirements associated with the July 31, 2019 final rule. This final rule would also provide the public an opportunity to more fully comprehend the nature of, and prepare to comply with, the new requirements before they are effective. Delay of this final rule to provide prior notice and comment procedures is impracticable, because it would allow the July 31, 2019 rule to go into effect before the agency is ready to implement the new requirements. Therefore, the Director finds there is good cause to waive notice and comment procedures for this rule.
Finally, the change in this final rule may be made immediately effective, because this is not a substantive rule under 35 U.S.C. 553(d). Moreover, pursuant to 5 U.S.C. 553(d)(1), the Director finds good cause to allow this final rule to be made immediately effective because it would allow the USPTO additional time to prepare internally for implementation of the requirements associated with the July 31, 2019 final rule.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This revision establishes the regulation of fine particulate matter (that is, particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers, generally referred to as “PM
This rule is effective on November 1, 2019.
EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2019-0382. All documents in the docket are listed on the
Donald Dahl, Air Permits, Toxics, and Indoor Programs Branch, EPA Region 1 Regional Office, 5 Post Office Square—Suite 100, mail code 05-2, Boston, MA 02109-3912, tel. (617) 918-1657, email:
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On July 24, 2019 (84 FR 35582), EPA published a Notice of Proposed Rulemaking (NPRM) for the State of Rhode Island. The NPRM proposed approval of revisions to Rhode Island's PSD permit program regulations and also proposed to convert from conditional approval to full approval several infrastructure SIPs. The formal SIP revision was submitted to the EPA by the Rhode Island Department of Environmental Management (RI DEM) on March 26, 2018. On February 6, 2019, RI DEM submitted to the EPA a letter clarifying its intent to only incorporate certain elements of its March 2018 submittal for inclusion into the Rhode Island SIP.
The State of Rhode Island's PSD permitting program is established in Title 250—Rhode Island Department of Environmental Management, Chapter 120—Air Resources, Subchapter 05—Air Pollution Control, Part 9—Air Pollution Control Permits (Part 9). Revisions to the PSD program were last approved into the Rhode Island SIP on October 24, 2013 (78 FR 63383). Rhode Island has authority to issue and enforce PSD permits under its SIP-approved PSD program.
The March 2018 RI DEM SIP submittal, and February 2019 clarification letter, were submitted to address PM
In the EPA's April 20, 2016 conditional approval, we cite a February 18, 2016 letter in which RI DEM commits to making the necessary changes to address the deficiencies in the Rhode Island SIP. RI DEM's March 2018 SIP submittal and February 2019 clarification letter satisfy the State's earlier commitment.
The NPRM includes the rationale for our full approval and the EPA will not restate its rationale in this action. No public comments were received on the NPRM.
The EPA is approving several revisions to Rhode Island's PSD SIP and converting several previously conditionally approved I-SIPs to full approval.
Since the EPA's last approval on October 24, 2013 of amendments to RI DEM's Part 9, the State has undertaken a new codification system that results in different citations between the current state regulations and the Rhode Island SIP. Due to the State's new codification system, there are instances where the state regulation being approved into the SIP at this time does not mesh precisely within the existing codification structure of the Rhode Island SIP. As a matter of substantive legal requirements, however, the regulations approved into the Rhode Island SIP, including those we are approving today, are harmonious and clear.
We describe below exactly how each definition and provision within Part 9 that we are approving will be incorporated into Rhode Island's SIP. A discussion of how the amendments to the SIP align with existing provisions in EPA's PSD regulations at 40 CFR part 51.166 is contained in the NPRM and will not be repeated here. The EPA is approving the following specific revisions into the Rhode Island SIP.
1. The definition of “Baseline concentration” in Section 9.5.C.2., replaces Section 9.5.l(b) in the currently approved Rhode Island SIP.
2. The definition of “Increment” in Section 9.5.C.3., replaces Section 9.5.1(d) in the currently approved Rhode Island SIP.
3. The definition of “Major Source Baseline Date” in Section 9.5.C.4., replaces Section 9.5.l(e) in the currently approved Rhode Island SIP.
4. The definition of “Major Stationary Source” in Section 9.5.C.6., replaces Section 9.5.l(g) in the currently approved Rhode Island SIP.
5. The definition of “Minor Source Baseline Date” in Section 9.5.C.5., replaces Section 9.5.l(f) in the currently approved Rhode Island SIP.
6. The definition of “Regulated NSR Pollutant” in Section 9.5.A.36., replaces Section 9.1.36 in the currently approved Rhode Island SIP.
7. The definition “Subject to Regulation” in Section 9.5.A.41., replaces Section 9.1.41 in the currently approved Rhode Island SIP.
8. The regulation regarding the amount of available increment a source can consume in Section 9.9.2 replaces Section 9.5.3.(a) in the currently approved Rhode Island SIP.
Although the State's amendment removes the limits on the amount of available increment that can be consumed, the amendment does not allow a source to consume more increment than is available.
9. Section 9.9.2.A.5.e(3), which prohibits emissions from temporary sources of sulfur dioxide, nitrogen oxides, and particulate matter from being excluded from increment consumption if the temporary emissions would impact a Class I area, replaces Section 9.5.3(c)(5)c in the currently approved Rhode Island SIP.
10. The table in Section 9.9.4.A. that contains PM
With these changes to Rhode Island's PSD regulations, the EPA has found that Rhode Island's infrastructure SIPs for the 2008 ozone, 2008 lead, 2010 nitrogen dioxide, and 1997 and 2006 PM
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revision reads as follow:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing approval of rule revisions submitted by the State of Utah on May 9, 2013, and August 25, 2017, to Utah's R307-309 fugitive dust control rule. This action is being taken under section 110 of the Clean Air Act (CAA or Act).
This final rule is effective on November 1, 2019.
The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2017-0469. All documents in the docket are listed on the
Crystal Ostigaard, Air and Radiation Division, Environmental Protection Agency (EPA), Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6602,
On September 14, 2017 (82 FR 43205), the EPA proposed to approve revisions to Utah administrative rule R307-309 (fugitive dust control rule) submitted on May 9, 2013, and August 25, 2017, and proposed to approve Utah's December 16, 2014 submittal determining that R307-309 provides for the implementation of reasonably available control measure (RACM) in Utah's fine particulate matter (PM
Our September 14, 2017 (82 FR 43205), proposed rulemaking provided a 30-day public comment period. The EPA received a total of three public comments on the proposed action. The first comment was anonymous, the second comment was from a named individual, and the third comment was from Western Resource Advocates. Our Response to Comments document in the docket for this action contains a summary of the comments and the EPA's responses. The full text of the public comments, as well as all other documents relevant to this action, are available in the docket (EPA-R08-OAR-2017-0469).
No comments were submitted that changed our assessment that the submitted rule revisions comply with the relevant CAA requirements. For the reasons stated in our proposed rule, final rule, and the Response to Comments document (EPA-R08-OAR-2017-0469), the EPA is finalizing approval of the revisions submitted by Utah on May 9, 2013, and August 25, 2017, pursuant to section 110 of the CAA, as the rule revisions will strengthen the Utah SIP by providing additional PM reductions. The EPA is not taking final action on Utah's December 16, 2014 submission that R307-309 constitutes RACM at this time.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Utah Division of Administrative Rules described in the amendments set forth to 40 CFR part 52 below. The EPA has made, and will continue to make, these materials generally available through
Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organization compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of the fungicide and miticide sodium lauryl sulfate in or on all food commodities when used in accordance with label directions and good agricultural practices. Central Coast Garden Products submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of sodium lauryl sulfate under FFDCA.
This regulation is effective October 2, 2019. Objections and requests for hearings must be received on or before December 2, 2019 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2018-0763, is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0763 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before December 2, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0763, by one of the following methods:
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C) and (D), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption, and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”
EPA evaluated the available toxicity and exposure data on sodium lauryl sulfate and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Sodium lauryl sulfate (also called sodium dodecyl sulfate) is an amphiphilic anionic surfactant that is widely used in cleaning products,
As a pesticide, the chemical is exempt from the requirements of Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as a minimum risk active ingredient under the specifications in 40 CFR 152.25(f). As an inert ingredient in pesticide products, SLS is approved for nonfood and food uses without limitation as a surfactant for pre- and post-harvest uses (40 CFR 180.910) and as a surfactant applied to animals (40 CFR 180.930). For antimicrobial pesticide products, SLS is approved for use in food-contact sanitizing solutions with an end-use concentration limit of 350 ppm (40 CFR 180.940(a), (b), and (c)). Currently, there is one federally-registered product where SLS is an active ingredient, an antiviral tissue, which was registered in 2009.
The Food and Drug Administration (FDA) has approved its use as a direct and indirect food additive (with limitations) under 21 CFR 172.210, 172.822, 175.105, 175.300, 175.320, 176.170, 176.180, 176.210, 177.1200, 177.1210, 177.1630, 177.2600, 177.2800, 178.1010 and 179.45. These uses include emulsifier, whipping aid, coating and wetting agent. The chemical is also considered to be a Generally Recognized as Safe (GRAS) substance (21 CFR 172.822 (with limitations); Flavor and Extract Manufacturers Association (FEMA) # 4437).
Overall, SLS is considered to be of low toxicity. Based on the available information and the fact that humans have been exposed to SLS for decades in food and nonfood products, the chemical is considered to have a history of safe use. The target organ is the liver, but no adverse effects were seen at or below 430 milligram/kilogram/day (mg/kg/day). There is no evidence of increased susceptibility in the developmental and reproductive toxicity studies. Moreover, no neurotoxicity, genotoxicity, or carcinogenicity have been observed in the available database, which includes the following studies: Acute toxicity, repeat dose (gavage and dietary) toxicity, developmental toxicity, reproductive toxicity, genotoxicity and carcinogenicity.
With regard to potential dietary exposure to SLS, the Agency expects that upon approval of this exemption, SLS may be used in any number of pesticide products, as it is listed as an active ingredient that can be used in minimum risk pesticide products without regulation under FIFRA (except as directed in 40 CFR 152.25(f)). Moreover, as noted above, SLS has been found safe for use as an inert ingredient in pesticide products and has been approved by FDA for use as a food additive. The Agency anticipates contributions to dietary exposures (food and drinking water) to be negligible due to the physical and chemical properties of SLS, which degrades rapidly in the environment and is highly soluble in water. Furthermore, any minimal residues that might be consumed are expected to be readily metabolized.
Due to the low toxicity of SLS, long history of safe use, and expected minimal dietary exposure, the Agency did not identify any points of departure for a quantitative assessment of SLS.
As part of its risk assessment for SLS, the Agency has further considered the potential risks of residential exposures, aggregate exposures, and cumulative risk. Based on SLS's low toxicity, anticipated negligible dietary exposure and history of safe use in consumer products, no risks of concern have been identified relative to residential (non-occupational) pesticidal uses or any aggregate of exposures to products containing SLS. Similarly, no risks of concern were identified for cumulative exposures to SLS since no common mechanism of toxicity was identified for either SLS or its metabolites.
Therefore, based on the lack of toxicity and expected low exposures, EPA has determined that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to SLS. The data upon which EPA relied to make its safety determination, as well as other relevant information, including the Agency's dietary risk assessment, is available in the docket for this action as described under
Based on its safety determination, EPA is establishing an exemption from the requirement of a tolerance for residues of the fungicide and miticide sodium lauryl sulfate in or on all food commodities when used on accordance with label directions and good agricultural practices.
An analytical method is not required for enforcement purposes due to lack of concern for exposures, which supports the establishment of an exemption for residues of sodium lauryl sulfate.
This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Residues of the fungicide and miticide sodium lauryl sulfate (CAS No. 151-21-3) in or on all food commodities are exempt from the requirement of a tolerance, when used in accordance with label directions and good agricultural practices.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is modifying the subsistence use regulations for the Eastern Pacific stock of northern fur seals (
Effective on September 27, 2019.
A 2005 Final Environmental Impact Statement for Setting Annual Subsistence Harvest of Northern Fur Seals on the Pribilof Islands (EIS), 2014 Final Supplemental EIS (SEIS) for Management of Subsistence Harvest of Northern Fur Seals on St. George Island, the 2019 Supplementary Information Report to the 2014 Final SEIS for Management of Subsistence Harvest of Northern Fur Seals on St. George Island, and 2019 Final SEIS for Management of Subsistence Harvest of Northern Fur Seals on St. Paul Island are available on the internet at the following address under the NEPA Analyses tab
Electronic copies of the Regulatory Impact Review (RIR) prepared for this action are available at
A list of all the references cited in this final rule may be found on
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS at the above
Michael Williams, NMFS Alaska Region, 907-271-5117,
NMFS published a proposed rule on August 14, 2018 (83 FR 40192) to modify the subsistence harvest regulations for northern fur seals on the Pribilof Islands based on the petition from the ACSPI (77 FR 41168; July 12, 2012). The rule streamlines and simplifies the regulations by eliminating several duplicative and unnecessary regulations governing Pribilovians on St. Paul and St. George Islands (Islands). The rule simplifies the regulations and authorizes Pribilovians who reside on St. Paul Island to kill for subsistence uses each year up to 2,000 male fur seals less than 7 years old, including pups during two seasons. The rule defines the first season from January 1 through May 31 and authorizes the use firearms to take juvenile fur seals during this first season. The rule defines the second season from June 23 through December 31 and authorizes the harvest of juvenile fur seals without the use of firearms. This rule authorizes up to 20 mortalities of female fur seals per year (of the 2,000 fur seals authorized for subsistence use per year) on St. Paul Island. In addition, the rule simplifies the regulations and authorizes Pribilovians who reside on St. George Island to kill up to 500 male fur seals during harvests for subsistence use, including authorization of up to three female mortalities each year. These annual levels of authorized subsistence use of fur seals are consistent with levels that NMFS has authorized under previous regulations since the early 1990s, as discussed further below. Finally, the rule streamlines and simplifies the regulations by eliminating several duplicative and unnecessary provisions
St. Paul Island and St. George Island are remote islands located in the Bering Sea populated by Alaska Native residents who rely upon marine mammals as a major food source and cornerstone of their culture. The taking of North Pacific fur seals (northern fur seals) is prohibited by the Fur Seal Act (FSA, 16 U.S.C. 1151-1175) unless expressly authorized by the Secretary of Commerce through regulation. Pursuant to the FSA, it is unlawful, except as provided in the FSA or by regulation of the Secretary of Commerce, for any person or vessel subject to the jurisdiction of the United States to engage in the taking of fur seals in the North Pacific Ocean or on lands or waters under the jurisdiction of the United States (16 U.S.C. 1152). Section 105(a) of the FSA authorizes the promulgation of regulations with respect to the taking of fur seals on the Pribilof Islands as the Secretary of Commerce deems necessary and appropriate for the conservation, management, and protection of the fur seal population (16 U.S.C. 1155(a)). Existing regulations issued under the FSA authorize Pribilovians to take fur seals on the Pribilof Islands if such taking is for subsistence uses and not accomplished in a wasteful manner (50 CFR 216.71).
For both Islands, the number of fur seals authorized to be harvested annually was established every year from 1985-1994. The regulations were revised on July 12, 1994 (59 FR 35471) to authorize an annual harvest range to last for three-year periods, in accordance with 50 CFR 216.72(b), based on an estimate of the number of fur seals expected to satisfy the Pribilovians' subsistence requirements. The history of regulatory revisions can be found in the 2019 SEIS (NMFS 2019) for the management of the subsistence harvest of northern fur seals on St. Paul Island, Alaska (the 2019 St. Paul SEIS), and in the 2014 SEIS for management of subsistence harvest of northern fur seals on St. George Island, Alaska (the 2014 St. George SEIS) (see
Northern fur seals were killed for their skins for at least 200 years during commercial operations on the Pribilof Islands (Scheffer
Therefore, NMFS concluded in the 2014 St. George SEIS and the 2019 St. Paul SEIS that subsistence harvest mortality of sub-adult male fur seals has not contributed to a detectable change in the population trends since the implementation of the subsistence use regulations (51 FR 24828; July 9, 1986). NMFS assumes that some level of harassment occurs during the subsistence take of fur seals. NMFS analyzed the impact of harassment on non-harvested seals and concluded in the 2014 St. George SEIS and the 2019 St. Paul SEIS that harassment associated with subsistence take would have short-term energetic effects on those seals, but no detectable population consequences. Further, NMFS (2014, 2019), Fowler
NMFS, therefore, does not expect a detectable change in population trends from future subsistence harvests authorized under this rule of up to 500 sub-adult male fur seals 124.5 cm or less in length (
For St. George Island, the regulations will continue to use the term “sub-adult” to refer to those fur seals authorized for subsistence use in the sub-adult season from June 23 through August 8 annually (50 CFR 216.72(d)(1)-(5)) and will continue to use the term “young of the year” to refer to those fur seals authorized for subsistence use in the male young of the year season from September 16 through November 30 annually (50 CFR 216.72(d)(6)-(10)). For St. Paul, this final rule authorizes in 50 CFR 216.72(e) take by hunt and harvest of juvenile male fur seals, and defines juvenile as non-breeding male fur seals less than seven years old (
The process to change subsistence use management of northern fur seals on St. Paul Island began on February 16, 2007, with the receipt of Tribal Resolution 2007-09 from ACSPI. In that resolution, ACSPI requested NMFS immediately start the process to impose a moratorium on the regulations at 50 CFR 216, Subpart F or revise the regulations. On May 7, 2007, NMFS determined that an immediate moratorium was not warranted and that the Marine Mammal Protection Act (MMPA) co-management process described in an agreement between NMFS and ACSPI was the best means to determine what regulatory changes were needed to allow the community to meet its subsistence needs while continuing to promote the conservation of northern fur seals on St. Paul Island consistent with the MMPA and FSA.
On October 21, 2009, ACSPI submitted resolution 2009-57 with supporting information to NMFS as a basis to modify the regulations governing the subsistence use of northern fur seals on St. Paul Island. NMFS evaluated the resolution and worked with ACSPI over the next two years to clarify details of the request and supporting documents. Based on those clarifications, NMFS determined that there was adequate information to publish a notice of receipt of petition for rulemaking and opportunity for public comment under the Administrative Procedure Act (77 FR 41168; July 12, 2012). ACSPI subsequently approved resolution 2015-04, amending resolution 2009-57, to assist NMFS to respond to comments received on the petition. NMFS then published a Notice of Intent to prepare an SEIS to evaluate alternatives to managing the subsistence use of northern fur seals on St. Paul Island (80 FR 44057; July 24, 2015), and completed a draft SEIS for public comment (82 FR 4336; January 13, 2017), as well as a proposed rule (83 FR 40192; August 14, 2018).
The 2019 St. Paul SEIS (NMFS 2019) analyzes the effects of the status quo, the petitioned alternative, preferred alternative, and other alternative subsistence use management regimes. NMFS concluded in the SEIS that the preferred alternative including subsistence use of up to 2,000 juvenile northern fur seals, of which up to 20 may be females killed during the subsistence use seasons, would have a minor effect on the population of about 424,531 fur seals residing seasonally on St. Paul Island. ACSPI petitioned NMFS to define the seals that may be taken for subsistence uses as “juvenile” male fur seals. A “juvenile” would be defined as a seal less than seven years old, inclusive of pups. This rule does not designate pups as a separate sub-category of juveniles, and ACSPI seeks flexibility to harvest any male seals less than seven years old. ACSPI also petitioned NMFS to remove a restriction on the length of seal that may be taken for subsistence use. These changes streamline and simplify the regulations because those distinctions were unnecessary from a conservation perspective (per the analysis in the 2019 St. Paul SEIS—NMFS 2019; and the proposed rule—83 FR 40192).
ACSPI petitioned NMFS to revise the subsistence use regulations, suggesting that four regulatory provisions were necessary to improve management of the subsistence use of northern fur seals on St. Paul Island: (1) Subsistence use of up to 2,000 juvenile male fur seals annually; (2) hunting of juvenile male fur seals from January 1 to May 31 annually using firearms; (3) harvesting of juvenile male fur seals from June 23 to December 31 annually without the use of firearms; and (4) co-management of subsistence use by ACSPI and NMFS under the co-management agreement. Subsequent discussions with ACSPI clarified that their request was to revise the co-management agreement signed in 2000 and to establish in a revised agreement a process to cooperatively manage and restrict subsistence use, such as location and frequency of harvesting and hunting, without additional regulatory provisions.
NMFS entered into a co-management agreement with the ACSPI in 2000 under Section 119 of the MMPA (16 U.S.C. 1388). The co-management agreement (available at
NMFS and ACSPI revised and aligned the co-management agreement for consistency with this final rule, while maintaining the guiding principles set out in the original agreement. The revised co-management agreement recognizes shared responsibilities in the conservation and cooperative management of fur seals, as well as Steller sea lions and harbor seals, and allows the co-management process to address monitoring and reporting of the subsistence seasons and the details of management of subsistence use. Specifically, the Co-management Council will use an adaptive management framework to make non-regulatory in-season adjustments to management decisions such as the locations, timing, and methods of subsistence use, within the regulatory parameters allowed by this rule. This also includes, but is not limited to, monitoring and management of mortality of female fur seals and seals struck and lost during the hunting season. The Co-management Council will use environmental, community, and subsistence use data and information to make in-season decisions regarding how the harvest is prosecuted, ensuring adherence to the regulatory seasons and the regulatory limit on the subsistence use of up to 2,000 juvenile fur seals, of which up to 20 may be female fur seals killed during the subsistence use seasons.
In 2006, the Traditional Council of St. George Island, Tribal Government (Traditional Council) petitioned NMFS to change the subsistence use management of northern fur seals on St. George. NMFS worked with the Traditional Council to clarify the petitioned changes and authorize the annual harvest of up to 150 male young of the year seals during a second season from September 16 through November 30 within the limits already established every three years under 50 CFR 216.72(b). The action included changes to the authorized subsistence use locations on St. George applicable to both young of the year and sub-adult harvests, as well as other regulatory provisions for conservation of fur seals.
In 2014, NMFS finalized the rule that authorized on St. George the harvest of up to 150 male young of the year seals, allowed harvests of sub-adults and young of the year seals at all areas capable of sustaining a harvest, added a harvest suspension provision if two females were killed during the year, and specified termination of the subsistence use seasons for the remainder of the year if three females were killed (79 FR 65327; November 4, 2014). NMFS changed 50 CFR 216.74 to reflect that the Traditional Council and NMFS had developed a different subsistence management relationship under Section
ACSPI petitioned for the removal of 50 CFR 216.72(b), which is applicable to both Islands. In this rule, NMFS removes the requirement for triennial notices for both Islands, and NMFS establishes in regulation the maximum number of seals that may be harvested on St. George Island (500), which is based on the upper limit established by NMFS (82 FR 39044; August 17, 2017) and agreed to by the Traditional Council since 1990 (55 FR 30919; July 30, 1990). NMFS also removes duplicative and unnecessary regulations applicable to subsistence use on St. George based on the determination that the statutory take prohibition in the FSA does not also require regulatory prohibitions.
NMFS currently manages the northern fur seal population as two stocks in the U.S.: The Eastern Pacific and the San Miguel stocks. The Eastern Pacific stock includes northern fur seals breeding on St. Paul, St. George, and Bogoslof islands and Sea Lion Rock, AK. NMFS designated the Pribilof Islands northern fur seal population as depleted under the MMPA on May 18, 1988 (53 FR 17888). Loughlin
Northern fur seals seasonally occupy specific breeding and non-breeding sites. The age and breeding status of the seals are the main determinants of where they are found on land during the breeding and non-breeding season. Non-breeding males occupy resting sites commonly called hauling grounds or haulout areas during the breeding season and are excluded from the breeding sites (
Mixed ages and both sexes of fur seals occupy this larger area that includes the rookery and haulout areas until December. Thus from approximately September through December all fur seals generally occupy similar terrestrial habitat, and there is little if any predictable separation among males and females as is found earlier in the year.
Pups begin to occupy separate terrestrial areas from non-pups in September, and make daily transits among the two terrestrial habitat areas, while spending progressively more time in the water prior to weaning (Baker and Donahue 2000). They return daily to their nursing sites, and if their mothers have not returned from a foraging trip the pups rest or move to the exclusive pup sites. Both areas have been successfully harvested on St. George Island since the subsistence use of pups was authorized in 2014 (79 FR 65327, November 4, 2014).
Male fur seals are sexually mature and begin to show secondary sexual characteristics (
Female fur seals can be distinguished from male fur seals based on size, canine tooth size, and whisker color. Male fur seals are larger at all ages, beginning at birth. Males grow faster and larger than females. As male and female fur seals age, their whiskers change color from all black (pup) to mixed black and white (two to seven years old) to all white (older than seven). This whisker color distinction is important because a four-year-old male is similar in size to a six-year-old or older female, but the female's whiskers will be all white and the male's whiskers will be mixed black and white. The size difference between males and females from birth to two years old is difficult to visually distinguish from a distance. Upon close inspection, the lower canine teeth of females are relatively narrower than a male's lower canine teeth. There are also some differences in fur coloration, head shape, and behavior between two- to four-year old males and females, but these characteristics are highly variable and prone to misclassification when considered alone. Thus, even though the Priblovians target male fur seals exclusively, the final rule authorizes the mortality of up to 20 females annually on St. Paul and up to three females annually on St. George to account for misidentification of females for males. Towell (2019) modeled the effects of 20 female mortalities on St. Paul per year, and Towell and Williams (2016) modeled the effects of three female mortalities on St. George per year. NMFS (2014, 2019) summarized the results of these and other analyses to reveal no population level consequences were expected to occur.
NMFS will continue to regulate the subsistence taking of fur seals on the Pribilof Islands by sex, age, and season, as contemplated in the emergency final rule that NMFS promulgated after the cessation of the commercial harvest of northern fur seals in 1984 (51 FR 24828; July 9, 1986).
Section 102 of the FSA broadly prohibits the “taking” of northern fur seals (16 U.S.C. 1152). The current regulations governing subsistence harvest for St. Paul and St. George Islands include specific prohibitions on the take of certain age classes of fur seals and the intentional take of female fur seals (50 CFR 216.72(d)(5), (d)(9), (e)(4)). NMFS has determined that these specific regulatory provisions prohibiting take were duplicative of the
(d)(5) Any taking of adult fur seals or young of the year, or the intentional taking of sub-adult female fur seals is prohibited;
(d)(9) Any harvest of sub-adult or adult fur seals or intentional harvest of young of the year female fur seals is prohibited; and
(e)(4) Any taking of adult fur seals or pups, or the intentional taking of sub-adult female fur seals is prohibited.
The removal of these duplicative regulatory restrictions will not result in any changes to subsistence use of northern fur seals on St. George Island or St. Paul Island.
NMFS determined that the following provisions for St. Paul and St. George Islands are duplicative of the regulations (50 CFR 216.41) promulgated for permitting scientific research under the MMPA (16 U.S.C. 1361-1407) and authorizing stranding response under Section 403 of the MMPA (16 U.S.C. 1421b), and thus these sections are removed from 50 CFR 216.72:
(d)(3) Seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists, and
(e)(6) Seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists.
NMFS removes these provisions in this final rule, and will continue to rely on the more recent regulatory processes established under the MMPA to authorize taking associated with response to fur seals entangled in marine debris or previously tagged for scientific research. The removal of these duplicative regulatory restrictions will not result in any changes to the process to receive authorization for take associated with response to fur seals entangled in marine debris or previously tagged for scientific research.
This final rule specifies in regulation the maximum number of fur seals that may be killed for subsistence uses annually on each Island. Per 50 CFR 216.72(e), Pribilovians on St. Paul may take by hunt and harvest up to 2,000 juvenile (less than 7 years old, including pups) fur seals per year for subsistence uses over the course of the hunting and harvest seasons, including up to 20 female fur seals per year. Per 50 CFR 216.72(d), Pribilovians on St. George may take by harvest for subsistence uses up to 500 fur seals per year over the course of the sub-adult male harvest and the young of the year harvest, including up to 3 female fur seals per year. The maximum harvest of fur seals authorized is based on the previously established upper limit of the subsistence need for each Island (82 FR 39044; August 17, 2017), which has been unchanged since 1992 for St. Paul Island (57 FR 34081; August 3, 1992) and since 1990 for St. George Island (55 FR 30919; July 30, 1990). More detailed information on the basis for setting take at the levels authorized in this final rule can be found in the proposed rule (83 FR 40192; August 14, 2018).
The final rule removes reference to a lower limit of the subsistence need and removes references to the lower limit of the harvest range for regulations governing harvest on St. George of sub-adult male fur seals (previously 50 CFR 216.72(d)(1)) and male young of the year fur seals (previously 50 CFR 216.72(d)(6)). The final rule eliminates the process to re-assess every three years the subsistence requirements of the Pribilovians residing on St. Paul and St. George Islands that was codified at 50 CFR 216.72(b). The final rule eliminates the suspension of subsistence use when the lower limit of the range of the subsistence need is reached that was codified at 50 CFR 216.72(f)(1)(iii) and 216.72(f)(3). The final rule removes the provision for the suspension of subsistence harvest on St. Paul Island or St. George Island if NMFS determines that the subsistence needs of the Pribilovians on that Island have been satisfied, which was codified at 50 CFR 216.72(f)(1)(i). The final rule removes the provision previously at 50 CFR 216.72(g)(2) that required the termination of the subsistence harvest if NMFS determines that the upper limit of the subsistence need has been reached or if NMFS determines that the subsistence needs of the Pribilovians on either Island have been satisfied.
The final rule revises the subsistence use termination provisions at 50 CFR 216.72(g) to be consistent with the new hunting and harvest seasons for St. Paul and the subsistence use limits for each Island. The provision at 50 CFR 216.72(g)(1) applies to only St. Paul Island and: (i) For hunting of juvenile male fur seals with firearms, terminates the hunting season at the end of the day on May 31 or when 2,000 fur seals have been killed, whichever comes first; (ii) for the harvest of juvenile male fur seals without firearms, terminates the harvest season at the end of the day on December 31 or when 2,000 fur seals have been killed during the year, whichever comes first; or (iii) terminates the subsistence use seasons when 20 female fur seals have been killed during the year.
In addition, 50 CFR 216.72(g)(2) applies only to St. George Island and: (i) For the sub-adult male harvest, terminates the season at the end of the day on August 8 or when 500 sub-adult male seals have been harvested, whichever comes first; (ii) for the male young of the year harvest, terminates the harvest at the end of the day on November 30 or earlier when the first of either the following occurs: 150 male young of the year fur seals have been harvested or a total of 500 sub-adult male fur seals and male young of the year fur seals have been harvested during the year; or (iii) terminates the subsistence harvest seasons when 3 female fur seals have been killed during the year.
For St. Paul Island, the final rule removes the regulatory provision at 50 CFR 216.72(e)(5) that specified the taking of only fur seals 124.5 cm or less in length. The final rule amends 50 CFR 216.72(e) to authorize take by hunting and harvesting of juvenile seals (defined as seals under 7 years old) (1) annually from January 1 through May 31 with firearms; and (2) annually from June 23 through December 31 without the use of firearms. The final rule authorizes up to 20 female fur seals to be killed during subsistence activities per year. More detailed information on the age classes authorized for subsistence use, the hunting and harvest seasons, and female mortality for St. Paul Island can be found in the proposed rule (83 FR 40192; August 14, 2018).
ACSPI's petition did not include regulations authorizing the incidental take of female fur seals. NMFS evaluated ACSPI's petition for rulemaking along with other alternatives in the SEIS (NMFS 2019) and determined that the “taking” of fur seals, including incidental taking of females, must be authorized by regulation (16 U.S.C. 1152, 1155(a)). As noted previously, the final rule authorizes for St. Paul Island mortality of up to 20 female fur seals each year.
ACSPI petitioned NMFS to include a regulatory provision that would allow ACSPI to co-manage subsistence use of northern fur seals under a co-management agreement. The final rule does not include this regulatory provision because co-management of subsistence use is authorized under Section 119 of the MMPA (16 U.S.C. 1388) and no implementing regulations under the FSA are necessary to allow for co-management between NMFS and ACSPI. ACSPI and NMFS will continue
NMFS and ACSPI have revised and aligned the Co-management Agreement to reflect the new regulatory framework governing the subsistence take of fur seals on St. Paul Island. NMFS and ACSPI will also develop and finalize in-season monitoring and management plan(s), which would specify details of monitoring, reporting, and hunting and harvest management that the Co-management Council would implement via consensus within the parameters of the regulations. This approach will strengthen co-management consistent with Section 119 of the MMPA (16 U.S.C. 1388), insofar as ACSPI would be an equal partner with NMFS in determining the details of how the subsistence use seasons are managed under the regulations. ACSPI would monitor the juvenile male hunting and harvest seasons with independent monitoring by NMFS representatives, while ensuring compliance with regulatory requirements and any restrictions or limitations identified in the in-season monitoring and management plan(s). NMFS and ACPSI would monitor the subsistence use of pups consistent with the intent of the revised Co-management Agreement, while also ensuring compliance with regulatory requirements and any restrictions or limitations identified in the in-season monitoring and management plan(s).
The final rule removes the heading “St. George Island” from section 50 CFR 216.74(a). The final rule at 50 CFR 216.74 describes the co-management process and the respective roles of NMFS and the tribes, clarifying its applicability to both St. George and St. Paul. The final rule removes 50 CFR 216.74(b), thus, section 216.74 no longer has subsections.
The final rule replaces all the regulatory restrictions at 50 CFR 216.72(e) to establish a new regulatory framework for St. Paul Island that is largely consistent with the petition from ACSPI. This includes removing regulatory restrictions on the location and scheduling of harvests, the requirement that only experienced sealers are authorized to harvest seals, and the size restriction authorizing the take of only furs seals 124.5 cm or less in length. NMFS (2019) determined that most of the details of subsistence use activities on St. Paul Island, including the location and scheduling of subsistence use, methods, and the individuals authorized to participate in the hunting and harvest seasons, would be more effectively managed by NMFS and ACSPI via the St. Paul Co-management Council, rather than prescribed by regulation. The Co-management Council can consider the availability of subsistence users to participate at different times, while ensuring that Pribilovians can preserve their cultural practices and environmental stewardship of fur seals in partnership with NMFS under the regulatory limits in the final rule. More detailed information on the basis for removing these regulatory requirements at 50 CFR 216.72(e) can be found in the proposed rule (83 FR 40192; August 14, 2018).
NMFS received comments on the proposed rule (83 FR 40192; August 14, 2018) from ACSPI, the Humane Society of the United States and Humane Society Legislative Fund, the Marine Mammal Commission (Commission), and three individuals. A summary of the comments received and NMFS's responses follows.
NMFS also notes that this final rule does not deregulate all aspects of subsistence use. This final rule establishes a regulatory limit on the total number of fur seals that may be killed on each Island each year, including a total limit on female mortality, and establishes hunting and harvest seasons on St. Paul Island. Existing regulations on the harvest seasons on St. George Island are unchanged (50 CFR 216.72(d)). Moreover, the regulations retain the requirement that all taking of fur seals must be for subsistence uses and not accomplished in a wasteful manner (50 CFR 216.71).
NMFS has identified both authorized and illicit causes of mortality of northern fur seals related to subsistence use, and this rule will reduce illicit causes of fur seal mortality as discussed in the DSEIS (NMFS 2017) and FSEIS (NMFS 2019). The outcome of this rule will allow NMFS and ACSPI to identify and characterize the full range of subsistence use mortality on St. Paul Island. In addition, through the advancement of the co-management partnership with ACSPI, we will be able to eliminate or mitigate causes of mortality by making annual in-season adjustments to subsistence activities based on real-time monitoring data and regular reporting to the Co-management Council. The combined regulatory and non-regulatory approach to managing subsistence use mortality is consistent with the first objective of the Conservation Plan. Further, the Conservation Plan goal referenced by the commenter includes numerous conservation actions. Conservation Action 1.3
Moreover, NMFS determined that the existing regulatory approach to establishing the subsistence need on St. Paul and St. George Islands is no longer necessary for the several reasons, including: (1) The estimates of yield of edible meat per fur seal, which were used to approximate the number of seals thought to fulfill subsistence needs, are no longer germane factors when evaluating the subsistence needs of Pribilovians; (2) the use of the lower and upper limit of the subsistence requirement has not provided the expected flexibility to the Pribilovians to meet their annual subsistence needs and has proven to be an unnecessary restriction; (3) estimating the subsistence need based on nutritional, socio-economic, and cultural factors results in a more realistic assessment of subsistence need than the exclusive use of nutritional factors; and (4) given the consistency of the determination of Pribilovians' subsistence needs for more than 25 years, codifying the maximum subsistence use levels in regulation would be much more efficient than continuing to revisit the subsistence need every three years.
Regarding this final basis, while the final rule could result in increased numbers of seals killed for subsistence
NMFS's implementation of this new local participatory monitoring approach is more likely to improve conservation outcomes based on research by Danielsen
The commenters are asking NMFS to use Federal regulations to attempt to prevent a perceived problem that past evidence suggests will not occur. NMFS will continue to work through the St. George and St. Paul Co-management Councils to assess subsistence user behavior and determine appropriate non-regulatory measures to mitigate disturbance to females and other harassment of fur seals incidental to subsistence use as identified through co-management monitoring, NMFS
NMFS and ACSPI will address the use of firearms and rates of struck and lost seals through the co-management process in order to monitor struck and lost rates based on hunting from land of seals in the water or on land and hunting from water of seals that are in water. Once data are available on hunting effort and performance, NMFS and ACSPI will review the data to make co-management decisions to identify hunting methods or locations to reduce struck and lost rates as needed. Overall, the intent is to assess the circumstance and locations that account for relatively higher struck and lost rates and to subsequently work with subsistence users to use hunting methods or alternative hunting locations that result in lower rates of struck and lost seals. NMFS and ACSPI will work through the co-management process to identify solutions and implement through co-management, if additional limitations are required to limit high loss rates in order to ensure retrieval of struck fur seals consistent with the requirements of 50 CFR 216.71 and 50 CFR 216.3 regarding wasteful manner.
We also refer to the Comment Analysis Report (Response to Comments 14 and 15 in Appendix B) in the 2019 St. Paul Final SEIS (NMFS 2019).
Please refer to responses to comments 6, 7, and 9 above. Please also refer to the
NMFS replaced “traditional harvest methods” with “established harvest methods” under § 216.72(e)(2), as suggested by a commenter (see response to comment 17 above).
NMFS made minor changes to the regulatory text from the proposed rule that do not change the intent or effect of these regulations. NMFS made minor revisions to the regulatory text in § 216.72(d) and (e)(3) to clarify that any female mortality during the year will be counted towards the total authorized mortality each year for each Island. NMFS also made minor revisions to the regulatory text in § 216.72(g)(2) to clarify that, for St. George Island, the male young of the year harvest will terminate when any of the following occurs: 150 young of the year fur seals have been harvested during that season, 500 fur seals total have been harvested over the course of both seasons (the male sub-adult season and the male young of the year season), or three females are killed.
NMFS replaced “harvest” with “subsistence use” under § 216.72(a), (f), and (g) and under § 216.74, where those regulations were referring to subsistence use on both St. Paul Island and St. George Island, for clarity and consistency with other regulatory changes. As addressed in this final rule, NMFS is establishing two subsistence use seasons on St. Paul: A hunting season from January 1 to May 31 (during which the use of firearms is allowed) and a harvest season from June 23 to December 31 (during which the use of firearms is prohibited and harvest will be by established harvest methods). The harvest seasons established in regulation for St. George are unchanged (the sub-adult harvest season from June 23 through August 8 and the young of the year harvest from September 16 through November 30) (50 CFR 216.72(d)). To ensure consistency within the regulations and to avoid confusion between the hunting and harvest seasons on St. Paul and the harvest seasons on St. George, NMFS replaced the term “harvest” when referring to subsistence use on both Islands with the term “subsistence use” throughout 50 CFR 216.72(a), (f), and (g) and 50 CFR 216.74.
NMFS has determined that this final rule is consistent with the FSA, MMPA, and other applicable laws. Pursuant to 5 U.S.C. 553(d), the NMFS Assistant Administrator finds good cause to waive the 30-day delay in the effective date of this rule because such a delay would be contrary to the public interest. A delay in effectiveness of the revised regulations would preclude St. Paul residents from meeting their subsistence needs this year by delaying the resumption of the traditional pup fur seal harvest for a full year until 2020, and would delay regulatory revisions that implement more sustainable subsistence use practices. In addition, the Assistant Administrator finds that the regulations would relieve some unnecessary subsistence use restrictions currently imposed on St. Paul residents by expanding the number of areas on the island where subsistence activities may occur, by allowing for subsistence use during a longer season, and by allowing for subsistence harvests of a younger age class of fur seals. The revised regulations would allow for sustainable harvesting and hunting practices that occurred historically, some of which are prohibited under the current regulations.
NMFS prepared an SEIS evaluating the impacts on the human environment of the subsistence harvest of northern fur seals on St. Paul Island (NMFS 2019). NMFS also prepared a Supplemental Information Report to the St. George SEIS (NMFS 2014).
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a Regulatory Impact Review to carefully assess the costs and benefits of available regulatory alternatives and to assess those measures that maximize net benefits to the Nation. A copy of this Analysis is available from NMFS (see
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this final rule will not have a significant economic impact on a substantial number of small entities. NMFS published a proposed rule on August 14, 2018 (83 FR 40192). An initial regulatory flexibility analysis (IRFA) was prepared and included in the “Classification” section of the proposed rule. The comment period closed on September 13, 2018. No comments were received on the IRFA or regarding the potential certification at the final rule stage. The factual basis for certification is as follows:
This action directly regulates the subsistence use of northern fur seals by Alaska Natives residing in the communities of St. Paul and St. George. Individual Pribilovians, through the coordination of their tribal governments, organize volunteer crews to take northern fur seals consistent with the regulations. NMFS has identified two small tribal government entities that may be affected by this action—the Aleut Community of St. Paul Island, Tribal Government, and the Pribilof Island Aleut Community of St. George Island, Traditional Council (
NMFS expects this action to have positive economic impacts to the small governmental entities affected by the rule; no negative economic impacts are expected. This final rule, therefore, is not expected to have a significant economic impact on a substantial number of the small entities regulated by this proposed action. NMFS indicated its intent, in the proposed rule, to certify under the Regulatory Flexibility Act to provide potentially affected entities an opportunity to comment on potential certification. NMFS received no comments regarding directly regulated small entities and/or certification.
Executive Order 13175 of November 6, 2000, the executive Memorandum of April 29, 1994, the American Indian Native Policy of the U.S. Department of Commerce (March 30, 1995), and the Department of Commerce Tribal Consultation and Coordination Policy Statement (78 FR 33331; June 4, 2013) outline NMFS's responsibilities in matters affecting tribal interests. Section 161 of Public Law 108-100 (188 Stat. 452), as amended by section 518 of Public Law 108-447 (118 Stat. 3267), extends the consultation requirements of E.O. 13175 to Alaska Native corporations. This final rule was developed through timely and meaningful consultation and collaboration with the tribal governments of St. Paul and St. George Islands and the local Native Corporations (Tanadgusix and Tanaq), and their input is incorporated herein.
This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA), and which has been approved by OMB under control number 0648-0699. NMFS obtained OMB control number 0648-0699 for the regulations at 50 CFR 216.71-74, which apply to both St. Paul and St. George Islands. For St. Paul Island, public reporting burden for hunt and harvest reporting is estimated to average 40 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. There are no significant changes in the collection-of-information requirements for St. Paul or St. George as part of this action. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved NOAA collections of information may be viewed at
Alaska, Marine mammals, Pribilof Islands, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS amends 50 CFR part 216 as follows:
16 U.S.C. 1151-1175. 16 U.S.C. 1361-1384
The revisions read as follows:
(a)
(d)
(1) Pribilovians may only harvest sub-adult male fur seals 124.5 centimeters or less in length from June 23 through August 8 annually on St. George Island.
(6) Pribilovians may only harvest male young of the year from September 16 through November 30 annually on St. George Island. Pribilovians may harvest up to 150 male fur seal young of the year annually.
(e)
(1) Juvenile male fur seals may be killed with firearms from January 1 through May 31 annually, or may be killed using alternative hunting methods developed through the St. Paul Island Co-management Council if those methods are consistent with § 216.71 and result in substantially similar effects. A firearm is any weapon, such as a pistol or rifle, capable of firing a missile using an explosive charge as a propellant.
(2) Juvenile male fur seals may be harvested without the use of firearms from June 23 through December 31 annually. Authorized harvest may be by established harvest methods of herding and stunning followed immediately by exsanguination, or by alternative harvest methods developed through the St. Paul Island Co-management Council if those methods are consistent with § 216.71
(3) Pribilovians are authorized each year up to 20 mortalities of female fur seals associated with the subsistence seasons. Any female fur seal mortalities will be included in the total number of fur seals authorized per year for subsistence uses (2,000).
(f)
(i) He or she determines that subsistence use is being conducted in a wasteful manner; or
(ii) With regard to St. George Island, two female fur seals have been killed during the subsistence seasons on St. George Island.
(2) A suspension based on a determination under paragraph (f)(1)(i) of this section may be lifted by the Assistant Administrator if he or she finds that the conditions that led to the determination that subsistence use was being conducted in a wasteful manner have been remedied.
(3) A suspension based on a determination under paragraph (f)(1)(ii) of this section may be lifted by the Assistant Administrator if he or she finds that the conditions that led to the killing of two female fur seals on St. George Island have been remedied and additional or improved methods to detect female fur seals during the subsistence seasons are being implemented.
(g)
(1) For St. Paul Island:
(i) For the hunting of juvenile male fur seals with firearms, at the end of the day on May 31 or when 2,000 fur seals have been killed, whichever comes first;
(ii) For the harvest of juvenile male fur seals without firearms, at the end of the day on December 31 or when 2,000 fur seals have been killed, whichever comes first; or
(iii) When 20 female fur seals have been killed during the subsistence seasons.
(2) For St. George Island:
(i) For the sub-adult male harvest, at the end of the day on August 8 or when 500 sub-adult male seals have been harvested, whichever comes first;
(ii) For the male young of the year harvest, at the end of the day on November 30 or earlier when either of the following occurs first: 150 male young of the year fur seals have been harvested or a total of 500 male sub-adult and male young of the year fur seals have been harvested; or
(iii) When three female fur seals have been killed during the subsistence seasons.
Federal scientists and Pribilovians cooperatively manage the subsistence use of northern fur seals under section 119 of the Marine Mammal Protection Act (16 U.S.C. 1388). The federally recognized tribes on the Pribilof Islands have signed agreements describing a shared interest in the conservation and management of fur seals and the designation of co-management councils that meet and address the purposes of the co-management agreements for representatives from NMFS, St. George and St. Paul tribal governments. NMFS representatives are responsible for compiling information related to sources of human-caused mortality and serious injury of marine mammals. The Pribilovians are responsible for reporting their subsistence needs and actual level of subsistence take. This information is used to update stock assessment reports and make determinations under § 216.72. Pribilovians who take fur seals for subsistence uses collaborate with NMFS representatives and the respective Tribal representatives to consider best subsistence use practices under co-management and to facilitate scientific research.
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would implement a recommendation from the Washington Apricot Marketing Committee (Committee) to increase the assessment rate established for the 2019-2020 and subsequent fiscal periods. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by November 1, 2019.
Interested persons are invited to submit written comments concerning this proposed rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or internet:
Dale Novotny, Marketing Specialist, or Gary Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email:
This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 922, as amended (7 CFR part 922), regulating the handling of apricots grown in designated counties of Washington. Part 922 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of apricot growers and handlers operating within the area of production.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 13563 and 13175. This proposed rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this proposed rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, Washington apricot handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the proposed assessment rate would be applicable to all assessable Washington apricots for the 2019-2020 fiscal period, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for 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 not later than 20 days after the date of the entry of the ruling.
The Order authorizes the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. Committee members are familiar with its needs and with the costs of goods and services in their local area and can formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting where all directly affected persons have an opportunity to participate and provide input.
This proposed rule would increase the assessment rate from $1.00 to $2.86 per ton of Washington apricots handled for the 2019-2020 and subsequent fiscal periods. The proposed higher rate is necessary to fund the Committee's 2019-2020 fiscal period budgeted expenditures. Based on input received from growers at an annual meeting, the 2019 crop of Washington apricots is expected to be unusually low because of the effects of late season frost on budding orchard trees. The Committee believes that increasing the assessment rate would allow the Committee to fully fund its 2019-2020 budgeted expenses.
The Committee held a well-publicized meeting May 8, 2019, at which all interested parties were encouraged to participate in the discussions. However,
The Committee recommended the assessment rate increase due to the anticipated reduced production level in 2019 resulting from a late season frost that damaged the crop. The 2018 crop was also smaller than the Committee had anticipated by 2,036 tons, which resulted in the Committee using more funds from its financial reserve than expected.
The major expenditures recommended by the Committee for the 2019-2020 fiscal period include $4000 for program management contract services provided by the Washington State Fruit Commission, $2,600 for annual audit and legal expenses, $1,300 for Committee travel and meeting expenses, and $425 for administrative expenses. In comparison, the aforementioned expense categories budgeted for the 2018-2019 fiscal period were the same amounts.
The assessment rate recommended by the Committee was derived by considering anticipated expenses, expected apricot sales, and the amount of funds available in the authorized reserve. Expected income derived from handler assessments of $9,438 (3,300 tons of apricots at $2.86 per ton), would be adequate to cover budgeted expenses of $8,325 and contribute $1,113 to the Committee's financial reserve. Funds in the reserve (estimated to be $7,211 at the beginning of the 2019-2020 fiscal period) would be kept within the maximum permitted by § 922.142(a) by not exceeding the expenses of approximately one fiscal period.
The assessment rate proposed in this rule would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's budget for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 315 growers and 13 handlers of apricots in the regulated production area subject to regulation under the Order. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
According to data from USDA Market News, the 2018 season average f.o.b. price for Washington apricots was approximately $25.07 per carton. The Committee reported that the industry shipped 3,964 tons for the season, which equals approximately 528,533 cartons (3,964 tons at an approximate net weight of 15 pounds per carton). Using the number of handlers, and assuming a normal distribution, most handlers would have average annual receipts of less than $7,500,000 ($25.07 times 528,533 equals $13,250,331 divided by 13 handlers equals $1,019,256 per handler).
In addition, based on USDA National Agricultural Statistics Service data, the weighted average grower price for the 2018 season was $1,330 per ton of apricots. Based on grower price, shipment data, and the total number of Washington apricot growers, and assuming a normal distribution, the average annual grower revenue is below $750,000 ($1,330 times 3,964 tons equals $5,272,120 divided by 315 growers equals $16,737 per grower). Thus, most growers and handlers of Washington apricots may be classified as small entities.
This proposed rule would increase the assessment rate collected from handlers for the 2019-2020 and subsequent fiscal periods from $1.00 to $2.86 per ton of Washington apricots handled. The Committee unanimously recommended 2019-2020 fiscal period expenditures of $8,325 and the $2.86 per ton assessment rate. The proposed assessment rate of $2.86 is $1.86 higher than the rate for the 2018-2019 fiscal period. The Committee estimates that the industry will handle 3,300 tons of fresh, Washington apricots during the 2019-2020 fiscal period. Thus, the $2.86 per ton rate should provide $9,438 in assessment income. Income derived from handler assessments would be adequate to cover all budgeted expenses. In addition, the Committee anticipates adding $1,113 to its monetary reserve in the 2019-2020 fiscal period.
The major expenditures recommended by the Committee for the 2019-2020 fiscal period include $4000 for program management contract services provided by the Washington State Fruit Commission, $2,600 for annual audit and legal expenses, $1,300 for Committee travel and meeting expenses, and $435 for administrative expenses. Those budgeted expenditures are unchanged from the previous fiscal period.
The proposed increased assessment rate is necessary to cover all the Committee's 2019-2020 fiscal period budgeted expenditures and replenish its financial reserve. The Committee has had to draw from its monetary reserve to partially fund program activities during previous fiscal periods.
Prior to arriving at this budget and assessment rate recommendation, the Committee considered maintaining the current assessment rate of $1.00 per ton. However, after grower input and discussions at its May 8, 2019, meeting, the anticipated crop was downgraded from 5,500 to 3,300 tons. This amount of production at the current assessment level of $1.00 per ton would not generate enough assessment income to fund the Committee's operations for the 2019-2020 fiscal period and allow it to maintain an adequate financial reserve. Based on estimated shipments, the recommended assessment rate of $2.86 per ton of apricots should provide $9,438 in assessment income. The Committee determined assessment revenue at the proposed higher rate
A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the average grower price for the 2019-2020 season should be approximately $800-$1,600 per ton of Washington apricots. Therefore, the estimated assessment revenue for the 2019-2020 marketing year as a percentage of total grower revenue would be between 0.18 and 0.36 percent.
This proposed action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to growers. However, these costs would be offset by the benefits derived by the operation of the Order.
The Committee's meetings are widely publicized throughout the Washington apricot industry. All interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 8, 2019, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. In addition, interested persons are invited to submit comments on this proposed 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 the OMB and assigned OMB No. 0581-0178, Specialty Crops. No changes in those requirements would be necessary because of this action. Should any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large Washington apricot 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.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
Apricots, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 922 is proposed to be amended as follows:
7 U.S.C. 601-674.
On and after April 1, 2019, an assessment rate of $2.86 per ton is established for Washington apricots handled in the production area.
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Proposed rule; open teleconference/webinar.
The U.S. Department of Energy (DOE or the Department) announces a webinar for the variable refrigerant flow multi-split air conditioners and heat pumps (VRF multi-split systems) working group. The Federal Advisory Committee Act (FACA) requires that agencies publish notice of an advisory committee meeting in the
Tuesday, October 1, 2019 from 11:00 a.m. to 1:00 p.m. (EDT).
Webinar only. Please see the Public Participation section of this notice for additional information on webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
Mr. John Cymbalsky, U.S. Department of Energy, Office of Building Technologies (EE-5B), 950 L'Enfant Plaza SW, Washington, DC 20024. Telephone: (202) 287-1692. Email:
On January 10, 2018, the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) met and passed the recommendation to form a VRF multi-split systems working group to meet and discuss and, if possible, reach a consensus on proposed Federal test procedures and energy conservation standards for VRF multi-split systems. On April 11, 2018, DOE published a notice of intent to establish a working group for VRF multi-split systems to negotiate a notice of proposed rulemaking for test procedures and energy conservations standards. The notice also solicited nominations for membership to the working group. 83 FR 15514.
On August 22, 2019, DOE published a notice announcing public meetings for the VRF working group. 84 FR 43731. This notice adds an October 1, 2019 webinar to the list of public meetings for the VRF working group.
DOE will host a webinar on October 1, 2019 from 11:00 a.m. to 1:00 p.m. (EDT).
The purpose of this meeting will be to negotiate in an attempt to reach consensus on proposed Federal test procedures and energy conservation standards for VRF multi-split systems.
The time and date of the webinar is listed in the
Please note that foreign nationals participating in the webinar are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the webinar, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email:
Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's website:
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the
ASRAC's Designated Federal Officer will preside at the public meetings and may also use a professional facilitator to aid discussion. The meetings will not be judicial or evidentiary-type public hearings, but DOE will conduct them in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. A transcript of each public meeting will be included on DOE's website:
The docket is available for review at:
Federal Deposit Insurance Corporation.
Notice of proposed rulemaking.
In this notice of proposed rulemaking (proposal or proposed rule), the Federal Deposit Insurance Corporation (FDIC) proposes to rescind and remove from the Code of Federal Regulations 12 CFR part 390, subpart R, entitled
Comments must be received on or before November 1, 2019.
You may submit comments by any of the following methods:
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Please include your name, affiliation, address, email address, and telephone number(s) in your comment. All statements received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. You should submit only information that you wish to make publicly available.
Christine M. Bouvier, Assistant Chief Accountant, (202) 898-7289,
The policy objectives of the proposed rule are twofold. The first is to simplify the FDIC's regulations by removing unnecessary ones and thereby improving ease of reference and public understanding. The second is to promote parity between State savings associations and State nonmember banks by having the regulatory reporting requirements, regulatory reports and audits of both classes of institutions addressed in the same FDIC rules.
The Dodd-Frank Act, signed into law on July 21, 2010, provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies.
Pursuant to section 316(c) of the Dodd-Frank Act,
Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act
As noted above, on June 14, 2011, operating pursuant to this authority, the Board issued a list of regulations of the former OTS that the FDIC would enforce with respect to State savings associations. On that same date, the Board reissued and redesignated certain regulations transferred from the former OTS. These transferred OTS regulations were published as new FDIC regulations in the
A subset of the regulations transferred to the FDIC from the OTS concern regulatory reporting requirements, regulatory reports and audits of State savings associations. The OTS regulations, formerly found at 12 CFR part 562, now comprise 12 CFR part 390, subpart R. The provisions of part 390, subpart R, are discussed in Part III of this Supplementary Information section, below.
The FDIC has conducted a careful review and comparison of part 390, subpart R, and other FDIC regulations that pertain to regulatory reporting requirements (12 CFR part 304, 12 CFR part 363 and its Appendices A and B, and 12 CFR part 364 and its Appendix A), regulatory reports (12 CFR part 304 and 12 CFR part 308), and audits of insured depository institutions (12 CFR part 363 and its Appendices A and B and 12 CFR part 364 and its Appendix A) that already apply to State savings associations. As discussed in Part III of this Supplementary Information section, the FDIC proposes to rescind part 390, subpart R, because the FDIC considers it to be redundant or otherwise unnecessary given the applicability of these other FDIC regulations.
Section 390.320 imposes two requirements upon State savings associations designed to help maintain the integrity, accuracy, reliability and uniformity of key documents used by the FDIC for supervisory purposes. First, section 390.320(a) requires each State savings association to maintain accurate and complete records of its business transactions that support and are readily reconcilable to the association's regulatory reports and to financial reports prepared in accordance with generally accepted accounting principles (GAAP).
State savings associations are already subject to other FDIC regulations that achieve the purposes of section 390.320. For example, as recognized by section 304.3 of the FDIC's regulations, all insured depository institutions, including State savings associations, are required to file quarterly Consolidated Reports of Condition and Income (Call Reports). Under section 304.3(a), all insured depository institutions must prepare the Call Report in accordance with the instructions for the report (Call Report Instructions), which in turn require the institutions to maintain their business records in a manner that supports and reconciles to the contents of the Call Report.
In addition, all State savings associations and other FDIC-supervised institutions are subject to 12 CFR part 364 (including its Appendix A).
In addition, existing FDIC regulations also require State savings associations and other FDIC-supervised institutions to use the forms and follow the instructions of the FDIC in preparing and submitting their regulatory reports. For example, section 304.3(a) of the FDIC's regulations requires all insured depository institutions, including State savings associations, to follow the Call Report Instructions in preparing their Call Reports.
The transferred OTS regulation found at 12 CFR 390.321(b)(1) provides a framework of “regulatory reporting requirements” governing the preparation of regulatory reports by State savings associations. Such requirements must, at a minimum, incorporate GAAP whenever called for; incorporate applicable safe and sound practices specified in the report instructions and other FDIC publications; and incorporate such additional safety and soundness requirements more stringent than GAAP as the FDIC may prescribe.
A similar framework is embodied in other applicable FDIC regulations. For example, 12 CFR part 304 requires all insured depository institutions to prepare their Call Reports in accordance with the Call Report Instructions. The Call Report Instructions, published by the Federal Financial Institutions Examination Council (FFIEC), contain uniform reporting requirements that the Federal banking agencies, including the FDIC, have determined to be consistent with GAAP and other regulatory reporting requirements.
The transferred OTS regulation currently found at 12 CFR 390.322 relates to audits of financial statements by qualified independent public accountants. This provision authorizes the FDIC, whenever needed for safety or soundness purposes, to require a State savings association to retain a qualified independent public accountant to conduct an independent audit of the association's financial statements.
Other FDIC requirements applicable to all insured depository institutions serve the underlying purposes of section 390.322. For example, as noted previously, all FDIC-supervised institutions, including State savings associations, are required by part 364 Appendix A to maintain internal controls that provide for “timely and accurate financial, operational and regulatory reports” along with an internal audit system that provides for adequate monitoring of the internal controls system.
In addition, insured depository institutions are required by law to file Call Reports that are free from false or misleading information and the FDIC is empowered to take enforcement action in the event that an institution fails to do so. In the event a State savings association's financial statements do not accurately reflect the association's financial condition or results of operations, the inaccuracy is likely to flow from the financial statements into the Call Report, in contravention of the Call Report Instructions. If a State savings association's Call Report contains such a material inaccuracy, the FDIC can require the savings association to amend its Call Report to correct that material inaccuracy and, depending on the facts and circumstances, the correction may necessitate the revision of the savings association's financial statements. If a savings association refuses to make a required amendment to its Call Report, the FDIC may be able to seek a cease-and-desist order to require corrective action to remedy violations in prior reporting periods.
In addition, the FDIC's regulations independently impose audit requirements for many institutions, including several State savings associations. For example, 12 CFR part 363 requires covered institutions (those with $500 million or more in assets) each year to submit annual financial statements that have been prepared in accordance with GAAP and have been audited by an independent public accountant.
As discussed in Part III of this Supplementary Information, the FDIC's part 390 subpart R addresses regulatory reporting requirements, regulatory reports and audits. After reviewing the requirements in part 390, subpart R, the FDIC, as the appropriate Federal banking agency for State savings associations, proposes to rescind part 390, subpart R in its entirety. Rescinding part 390, subpart R will serve to streamline the FDIC's rules and eliminate redundant, duplicate or otherwise unnecessary regulations in light of other FDIC regulations that specifically govern these matters and apply to insured depository institutions, including State savings associations
As explained in detail in Part III of this Supplementary Information section, certain OTS regulations transferred to the FDIC by the Dodd-Frank Act relating to regulatory reporting requirements, regulatory reports, and audits of State savings associations are redundant or unnecessary in light of applicable statutes and other FDIC regulations. This proposal would eliminate those transferred OTS regulations.
As of June 30, 2019, the FDIC supervises 3,424 depository institutions, of which 38 (1.1%) are State savings associations.
As explained previously, the proposed rule would remove sections 390.320, 390.321 and 390.332 of part 390, subpart R because these sections are redundant of, or otherwise unnecessary in light of, applicable statutes and other FDIC regulations regarding audits, reporting, and safety and soundness. As a result, rescinding and removing these regulations will not have any substantive effects on State savings associations or FDIC-supervised institutions.
The FDIC invites comments on all aspects of this analysis. In particular, would the proposed rule have any costs or benefits to covered entities that the FDIC has not identified?
The FDIC has considered alternatives to the proposed rule but believes that the proposed amendments represent the most appropriate option for covered entities. As discussed previously, the Dodd-Frank Act transferred certain powers, duties, and functions formerly performed by the OTS to the FDIC. The FDIC's Board reissued and redesignated certain transferred regulations from the OTS, but noted that it would evaluate them and might later incorporate them into other FDIC regulations, amend them, or rescind them, as appropriate. The FDIC has evaluated the existing regulations relating to regulatory reporting standards and audits of insured depository institutions, including 12 CFR part 304; 12 CFR part 308; 12 CFR part 363 and its Appendices A and B; 12 CFR part 364 and its Appendix A; and 12 CFR part 390, subpart R. The FDIC considered the status quo alternative of retaining the current regulations but did not choose to do so because the underlying purposes of those regulations are already accomplished through substantively similar regulations regarding regulatory reports, regulatory reporting requirements, and audits. Therefore, the FDIC is proposing to amend and streamline the FDIC's regulations.
The FDIC invites comments on all aspects of this proposed rulemaking. In particular, the FDIC requests comments on the following questions:
1.
2.
3.
Written comments must be received by the FDIC no later than November 1, 2019.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA),
The proposed rule would rescind and remove from FDIC regulations part 390, subpart R. The proposed rule will not create any new or revise any existing collections of information under the PRA. Therefore, no information collection request will be submitted to the OMB for review.
The Regulatory Flexibility Act (RFA), requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of the proposed rule on small entities.
As of March 31, 2019,
As explained previously, the proposed rule would remove sections 390.320, 390.321 and 390.332 of part 390, subpart R because these sections are redundant or otherwise unnecessary in light of applicable statutes and other FDIC regulations. As a result, rescinding the regulations would not have any substantive effects on small FDIC-supervised institutions.
Based on the information above, the FDIC certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.
4.
Section 722 of the Gramm-Leach-Bliley Act
Riegle Community Development and Regulatory Improvement Act of 1994 (“RCDRIA”) requires that each Federal banking agency, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions, consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, new regulations and amendments to regulations that impose additional reporting, disclosure, or other new requirements on insured depository institutions generally must take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. The FDIC invites comments that further will inform its consideration of RCDRIA.
Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.
Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the preamble, the Federal Deposit Insurance Corporation proposes to amend 12 CFR 390 as follows:
12 U.S.C. 1819.
Subpart F also issued under 5 U.S.C. 552; 559; 12 U.S.C. 2901
Subpart G also issued under 12 U.S.C. 2810
Subpart M also issued under 12 U.S.C. 1818.
Subpart O also issued under 12 U.S.C. 1828.
Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
Subpart S also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 1468a; 1817; 1820; 1828; 1831e; 1831o; 1831p-1; 1881-1884; 3207; 3339; 15 U.S.C. 78b; 78l; 78m; 78n; 78p; 78q; 78w; 31 U.S.C. 5318; 42 U.S.C. 4106.
Subpart T also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; 78n; 78w.
Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; 78n; 78p; 78w.
Subpart Y also issued under 12 U.S.C. 1831o.
By order of the Board of Directors.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM); extension of comment period.
This action extends the comment period for an NPRM that was published in the
The comment period for the NPRM published on July 3, 2019 (84 FR 31747), and scheduled to close on October 1, 2019, is extended until December 2, 2019.
Send comments identified by docket number FAA-2019-0491 using any of the following methods:
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Jeff Gardlin, AIR-600, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198; telephone (206) 231-3146; email
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. 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 send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in title 14, Code of Federal Regulations (14 CFR) 11.35, the FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it 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 to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
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
If submitting information on a disk or CD ROM, mark the outside of the disk or CD ROM, and identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.
An electronic copy of rulemaking documents may be obtained from the internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies web page at
3. Accessing the Government Printing Office's web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced in item (1) above.
On July 3, 2019, the FAA published the NPRM entitled “Interior Parts and Components Fire Protection for Transport Category Airplanes,” Notice No. 19-09, in the
The FAA agrees with the petitioners' request for an extension of the comment period. The FAA recognizes that, given the scope of proposed changes is extensive and the subject complex, an extension of the comment period would help commenters craft complete and thoughtful responses. Although the minimum requested extension was 90 days, which is the length of the original comment period, such an extension would delay any action of the final rule until 2020. A 60-day extension (in this case 62 days to avoid a weekend) would be consistent with similar actions in the past and would allow the FAA to begin dispositioning comments in 2019. Therefore, the FAA agrees to extend the comment period an additional 62 days. With this extension, the comment period will now close on December 2, 2019. This will provide the public with a total of 152 days to conduct its review. The FAA does not anticipate any further extension of the comment period for this rulemaking.
In accordance with 14 CFR 11.47(c), the FAA has reviewed the petitions for extension of the comment period for Notice No. 19-09. The petitioners have shown a substantive interest in the proposed rule and good cause for an extension of the comment period. The FAA has determined that an extension of the comment period for an additional 62 days to December 2, 2019, is in the public interest. Accordingly, in accordance with § 11.47 of title 14, Code of Federal Regulations, the comment period for Notice No. 19-09 is extended until December 2, 2019.
Federal Trade Commission.
Advance notice of proposed rulemaking; request for public comment.
The Federal Trade Commission (“FTC” or “Commission”) seeks public comment on the need for amendments to the Commission's “Rule Concerning the Use of Prenotification Negative Option Plans” (
Comments must be received on or before December 2, 2019.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Hampton Newsome (202-326-2889), Attorney, Division of Enforcement,
The Commission seeks comments on ways to improve its existing regulations for negative option marketing, a common form of marketing where the absence of affirmative consumer action constitutes assent to be charged for goods or services. Negative option offers are widespread in the marketplace and can provide substantial benefits for sellers and consumers. However, consumers cannot reap such benefits when marketers fail to make adequate disclosures, bill consumers without their consent, or make cancellation difficult or impossible. Over the years, such problematic negative option practices have remained a persistent source of consumer harm, often saddling consumers with recurring payments for products and programs they did not intend to purchase or did not want. In the past, the Commission has sought to address such practices through individual law enforcement cases and a patchwork of regulations. Nevertheless, problems persist, and consumers continue to submit thousands of complaints to the FTC each year about negative option marketing. To address these concerns, the Commission seeks comments on ways to improve existing regulatory requirements, including whether it should use its rulemaking authority under the FTC Act to expand the scope and coverage of the existing Negative Option Rule.
A “negative option” is any type of sales term or condition that allows a seller to interpret a customer's silence, or failure to take an affirmative action, as acceptance of an offer.
Prenotification plans are the only negative option practice currently covered by the Commission's Negative Option Rule. Under such plans (
Some negative option offers include upsell or bundled offers, where sellers use consumers' billing data for additional products from the same seller or pass consumers' billing data to a third party for additional offers. An upsell occurs when a consumer completes a first transaction and then receives a solicitation for an additional product or service. A bundled offer occurs when a seller packages two products or services together so that they cannot be purchased separately.
The Commission first promulgated the Rule in 1973 pursuant to the FTC Act, 15 U.S.C. 41
The Rule requires prenotification plan sellers to clearly and conspicuously disclose their plan's material terms before consumers subscribe. It enumerates seven material terms sellers must disclose clearly and conspicuously including: (1) How subscribers must notify the seller if they do not wish to purchase the selection; (2) any minimum purchase obligations; (3) the subscribers' right to cancel; (4) whether billing charges include postage and handling; (5) that subscribers have at least ten days to reject a selection; (6) that if any subscriber is not given ten days to reject a selection, the seller will credit the return of the selection and postage to return the selection, along with shipping and handling; and (7) the frequency with which announcements and forms will be sent.
In addition to the Negative Option Rule, several other statutes and regulations address harmful negative option practices. First, Section 5 of the FTC Act, which prohibits unfair or deceptive acts or practices, has traditionally served as the Commission's primary mechanism for addressing these types of cases. Additionally, the Restore Online Shoppers' Confidence Act (“ROSCA”) (15 U.S.C. 8401-8405), the Telemarketing Sales Rule (16 CFR part 310), the Postal Reorganization Act (“PRA”) (
The basic consumer protection statute enforced by the Commission is Section 5(a) of the FTC Act (15 U.S.C. 45(a)(1)). This provision states that “unfair or deceptive acts or practices in or affecting commerce . . . are . . . declared unlawful.”
Although adherence to these five principles should minimize the likelihood of non-compliance with Section 5, the legality of a particular negative option depends on an individualized assessment of the advertisement's net impression and the marketer's business practices. In addition to these deception-related requirements, the Commission has indicated that billing consumers without consumers' express informed consent is an unfair act under the FTC Act.
Enacted by Congress in 2010 to address ongoing problems with online negative option marketing, ROSCA contains general provisions related to disclosures, consent, and cancellation.
ROSCA also addresses offers made by, or on behalf of, third-party sellers during, or immediately following, a transaction with an initial merchant.
ROSCA provides that a violation of that Act shall be treated as a violation of a Commission trade regulation rule under Section 18 of the FTC Act.
The Telemarketing Sales Rule (“TSR”) (16 CFR part 310) prohibits deceptive telemarketing acts or practices, including those involving negative option offers, and certain types of payment methods common in deceptive marketing. The TSR only applies to negative option offers made over the telephone. Specifically, the TSR requires that telemarketers disclose all material terms and conditions of the negative option feature, including the need for affirmative consumer action to avoid the charges, the date (or dates) the charges will be submitted for payment, and the specific steps the customer must take to avoid the charges. It also prohibits telemarketers from misrepresenting such information and contains specific requirements related to payment authorization.
The Electronic Fund Transfer Act (“EFTA”)
The existing patchwork of laws and regulations does not provide industry and consumers with a consistent legal framework across different media and types of plans. For instance, as discussed above, the current Rule does not cover common practices such as continuity plans, automatic renewals, and trial conversions.
Additionally, the current framework does not provide clarity about how to avoid deceptive negative option disclosures and procedures. For example, ROSCA lacks specificity about cancellation procedures and the placement, content, and timing of cancellation-related disclosures. Instead, the statute requires marketers to provide a “simple mechanism” for the consumer to stop recurring charges, but does not specify what methods would satisfy this requirement.
The Commission initiated its last regulatory review of the Negative Option Rule in 2009 (74 FR 22720 (May 14, 2009)), following a 2007 FTC workshop and subsequent Staff Report.
Since the conclusion of the last regulatory review of the Negative Option Rule, evidence strongly suggests that negative option marketing continues to harm consumers. The Commission and the states continue to regularly bring cases challenging negative option practices, including more than 20 recent FTC cases. These matters involved a range of deceptive and unfair practices, including inadequate disclosures for “free” offers and other products or programs, enrollment without consumer consent, and inadequate or overly burdensome cancellation and refund procedures.
The Commission seeks comments on the current Rule as well as possible regulatory measures to reduce consumer harm created by deceptive or unfair negative option marketing. In considering ways to meet this objective, as detailed below, the Commission seeks comment on various alternatives, including amendments to existing rules to further address disclosures, consumer consent, and cancellation. In particular, the Commission requests input on whether and how it should use its authority under Section 18 of the FTC Act to expand the Negative Option Rule to address prevalent unfair or deceptive practices involving negative option marketing.
(1) Is there a continuing need for the Rule as currently promulgated? Why or why not?
(2) What benefits has the Rule provided to consumers? What evidence supports the asserted benefits?
(3) What modifications, if any, should the Commission make to the Rule to increase its benefits to consumers?
(a) What evidence supports your proposed modifications?
(b) How would these modifications affect the costs and benefits of the Rule for consumers?
(c) How would these modifications affect the costs and benefits of the Rule for businesses, particularly small businesses?
(4) What, if any, impact has the Rule had on the flow of truthful information to consumers and on the flow of deceptive information to consumers? What evidence supports the asserted impact?
(5) What, if any, significant costs has the Rule imposed on consumers? What evidence supports the asserted costs?
(6) Are any of the Rule's requirements no longer needed? If so, explain. Please provide supporting evidence.
(7) What benefits, if any, has the Rule provided to businesses, and in particular to small businesses? What evidence supports the asserted benefits?
(8) What modifications, if any, should the Commission make to the Rule to increase its benefits to businesses, particularly small businesses?
(a) What evidence supports your proposed modifications?
(b) How would these modifications affect the costs and benefits of the Rule for consumers?
(c) How would these modifications affect the costs and benefits of the Rule for businesses?
(9) What, if any, significant costs, including costs of compliance, has the Rule imposed on businesses, particularly small businesses? What evidence supports the asserted costs?
(10) What modifications, if any, should the Commission make to the Rule to reduce the costs imposed on businesses, particularly small businesses?
(11) Should the Rule define “clearly and conspicuously,” given that it requires marketers to make certain disclosures clearly and conspicuously? If so, why, and how? If not, why not?
(12) What evidence is available concerning the degree of compliance with the Rule? Does this evidence indicate that the Commission should modify the Rule? If so, why, and how? If not, why not?
(13) Does the Rule overlap or conflict with other federal, state, or local laws or regulations? If so, how? Should the Rule be modified to address any such overlaps or conflicts? If so, why, and how? If not, why not? Please provide supporting evidence.
(14) How widespread is the marketing of products or services through negative option plans, including, but not limited to, plans covered by the current Rule? What percentage of these negative option plans are offered through the internet, telemarketing, the mail, or through some other means? What data sources did you rely upon in formulating your answer?
(15) Are there potentially unfair or deceptive practices concerning the marketing of negative option plans, not covered by the Rule, occurring in the marketplace? If so, what types of negative option plans does such marketing involve? What evidence, such as empirical data, consumer perception studies, or consumer complaints, demonstrates whether there is widespread existence of such practices? Please provide this evidence.
(16) Does current marketing of negative option plans cause consumer injury? If so, what evidence demonstrates that such practices cause consumer injury do so? Please provide this evidence.
(17) Please provide any evidence that has become available over the last several years concerning consumer perception of, or experience with, negative option offers, including offers for prenotification negative option plans, continuity plans, trial conversions, or automatic renewals.
(18) How do the existing laws and regulations covering negative options affect consumers? What evidence supports your answer?
(19) Do existing laws and regulations covering negative options affect businesses, particularly small businesses? If so, how? What evidence supports your answer?
(20) Is there a need for new regulatory provisions to prevent deception by addressing negative option plans not covered by the Rule? If yes, why? If no, why not? If new regulations are needed to address the marketing of negative option plans not covered by the existing Rule, should the Rule be amended, or should a new Rule or Rules be created? Should all forms of negative option marketing be addressed in a single Rule or by new, separate Rules? What evidence supports your answer? What are the benefits and costs to consumers and businesses under either approach? What evidence supports your answer?
(21) If new regulatory provisions are necessary, should they treat various types of negative option marketing differently? Why or why not? Would there be any adverse consequences if different forms of negative option marketing were addressed under separate Rules? Why or why not? What, if any, evidence supports your answer?
(22) What specific modifications, if any, should be added to the Rule to better address prenotification negative option marketing, continuity plans, trial conversions, and/or automatic renewals? What evidence supports your proposed modification?
(23) Do current or impending changes in technology or market practices affect whether and how the Rule should be modified? If so, what are such changes and how do they affect whether the Rule should be modified?
(24) Are there foreign or international laws, regulations, or standards addressing negative option plans that the Commission should consider as it reviews the Rule? If so, what are they? Should the Commission consider adopting, or avoiding, any of these? If so, why? If not, why not?
(a) Should the Rule be modified to harmonize with these international laws, regulations, or standards? If so, why, and how? If not, why not?
(b) How would such harmonization affect the costs and benefits of the Rule for consumers and businesses, particularly small businesses?
(25) Should the Commission consider additional consumer and business education to reduce consumer harm associated with negative option
You can file a comment online or on paper. For the FTC to consider your comment, we must receive it on or before December 2, 2019. Write “Negative Option Rule (16 CFR part 425) (Project No. P064202)” on your comment. Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online, or to send them to the Commission by courier or overnight service. To make sure that the Commission considers your online comment, you must file it through the
If you file your comment on paper, write “Negative Option Rule (16 CFR part 425) (Project No. P064202)” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before December 2, 2019. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
By direction of the Commission.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations relating to the modification of section 958(b) of the Internal Revenue Code (“Code”) by the Tax Cuts and Jobs Act, which was enacted on December 22, 2017. The proposed regulations affect United States persons that have ownership interests in or that make or receive payments to or from certain foreign corporations.
Written or electronic comments and requests for a public hearing must be received by December 2, 2019.
Send electronic submissions via the Federal eRulemaking Portal at
Concerning the proposed regulations, Jorge M. Oben, (202) 317-6934; concerning submissions of comments and requests for a public hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).
Section 958 provides rules for determining direct, indirect, and constructive stock ownership. Under section 958(a)(1), stock is considered owned by a person if it is owned directly or is owned indirectly through certain foreign entities under section 958(a)(2). Under section 958(b), section 318 applies, with certain modifications, to the extent that the effect is to treat any United States person as a United States shareholder within the meaning of section 951(b) (“U.S. shareholder”) of a foreign corporation, to treat a person as a related person within the meaning of section 954(d)(3), to treat the stock of a domestic corporation as owned by a U.S. shareholder of a controlled foreign corporation (“CFC”) for purposes of section 956(c)(2), or to treat a foreign corporation as a CFC under section 957.
Section 318 provides rules that attribute the ownership of stock to certain family members, between certain entities and their owners, and to holders of options to acquire stock. Section 318(a)(1) provides rules attributing stock ownership among members of a family. Section 318(a)(2) provides rules attributing stock ownership from partnerships, estates, trusts, and corporations to partners, beneficiaries, owners, and shareholders (so-called “upward attribution”). Section 318(a)(3) generally attributes stock owned by a person to a partnership, estate, trust, or corporation in which the person has an interest (so-called “downward attribution”). In particular, section 318(a)(3)(A) provides that stock owned, directly or indirectly, by or for a partner or a beneficiary of an estate is considered as owned by the partnership or estate. This provision applies to all partners and beneficiaries without regard to the size of their interest in the partnership or estate. Section 318(a)(3)(B) similarly provides, subject to certain exceptions, that stock owned, directly or indirectly, by or for a beneficiary of a trust (or a person who is considered an owner of a trust) is considered owned by the trust. Section 318(a)(3)(C) provides that stock in one corporation owned, directly or indirectly, by or for a shareholder in a second corporation is considered owned by the second corporation if 50 percent or more in value of the stock in the second corporation is owned, directly or indirectly, by such shareholder.
As in effect before repeal, section 958(b)(4) provided that subparagraphs (A), (B), and (C) of section 318(a)(3) (providing for downward attribution) were not to be applied so as to consider a United States person as owning stock owned by a person who is not a United States person (a “foreign person”). Effective for the last taxable year of foreign corporations beginning before January 1, 2018, and each subsequent year of the foreign corporations, and for the taxable years of U.S. shareholders in which or with which such taxable years of the foreign corporations end, section 958(b)(4) was repealed by section 14213 of the Tax Cuts and Jobs Act, Public Law 115-97 (2017) (the “Act”). As a result of this repeal, stock of a foreign corporation owned by a foreign person can be attributed to a United States person under section 318(a)(3) for purposes of determining whether a United States person is a U.S. shareholder of the foreign corporation and, therefore, whether the foreign corporation is a CFC. In other words, as a result of the repeal of section 958(b)(4), section 958(b) now provides for downward attribution from a foreign person to a United States person in circumstances in which section 958(b), before the Act, did not so provide. As a result, United States persons that were not previously treated as U.S. shareholders may be treated as U.S. shareholders, and foreign corporations that were not previously treated as CFCs may be treated as CFCs.
The legislative history to the Act indicates that the repeal of section 958(b)(4) was intended “to render ineffective certain transactions that are used to [sic] as a means of avoiding the subpart F provisions.”
One such transaction involves effectuating “de-control” of a foreign subsidiary, by taking advantage of the section 958(b)(4) rule that effectively turns off the constructive stock ownership rules of 318(a)(3) when to do otherwise would result in a U.S. person being treated as owning stock owned by a foreign person. Such a transaction converts former CFCs to non-CFCs, despite continuous ownership by U.S. shareholders.
This notice of proposed rulemaking proposes changes that are generally intended to ensure that the operation of certain rules is consistent with their application before the Act's repeal of section 958(b)(4), as further explained in this Part I. Other guidance that provides relief concerning the effect of the repeal of section 958(b)(4) on the application of subpart F more generally is provided separately.
Section 267(a)(2) provides a matching rule that governs the time at which an otherwise deductible amount owed to a related person may be deducted. Specifically, section 267(a)(2) provides that, in the case of certain interest and expenses paid by the taxpayer to a related person, if an amount is not includible in the payee's gross income until it is paid, the amount generally is not allowable as a deduction to the taxpayer until the amount is includible in the gross income of the payee.
Section 267(a)(3)(A) provides that the Secretary shall by regulations apply the matching principle in section 267(a)(2) in cases in which the payee is a foreign person. Section 1.267(a)-3(b) generally requires a taxpayer to use the cash method of accounting for deductions of amounts owed to a related foreign person. An exemption is provided in § 1.267(a)-3(c)(2) for any amount, other than interest, that is income of a related foreign person with respect to which the related foreign person is exempt from U.S. tax on the amount owed pursuant to a treaty obligation of the United States.
Section 841(b) of Public Law 108-357 (2004) added section 267(a)(3)(B) to the Code, effective for payments accrued on or after October 22, 2004. Section 267(a)(3)(B)(i) provides that, notwithstanding section 267(a)(3)(A), in the case of any item payable to a CFC, a deduction is allowable to the payor with respect to the amount for any taxable year before the year in which paid only to the extent that an amount attributable to the item is includible during such prior taxable year in the gross income of a United States person who owns (within the meaning of section 958(a)) stock in such corporation. Section 267(a)(3)(B)(ii) grants the Secretary the authority to issue regulations exempting transactions from section 267(a)(3)(B)(i).
For amounts accrued on or after October 22, 2004, a taxpayer that owes an amount to a CFC cannot rely on the exemption in § 1.267(a)-3(c)(2) to generally deduct the amount when accrued, and instead can deduct the amount prior to the year the amount is paid only to the extent that an amount attributable to the item is includible in gross income of a U.S. shareholder that owns (within the meaning of section 958(a)) stock in the CFC. After the repeal of section 958(b)(4), a CFC may not have any U.S. shareholders that own stock within the meaning of section 958(a) (“section 958(a) U.S. shareholders”). Because the repeal of
The purpose of the matching principle in section 267(a)(2) is to align the timing of a deduction with the inclusion of the item in income. If an amount is owed to a CFC that has no section 958(a) U.S. shareholders that would include an amount attributable to the item in income, and the CFC is exempt from U.S. tax on the amount owed due to a treaty, it is unnecessary to not allow a taxpayer to take the deduction when the amount is accrued. Accordingly, the proposed regulations provide that an amount (other than interest) that is income of a related foreign person with respect to which the related foreign person is exempt from U.S. taxation on the amount owed pursuant to a treaty obligation of the United States is exempt from the application of section 267(a)(3)(B)(i) if the related foreign person is a CFC that does not have any section 958(a) U.S. shareholders. Proposed § 1.267(a)-3(c)(4).
These proposed regulations also amend § 1.267(a)-3(c)(2) and remove the rules currently in § 1.267(a)-3(c)(4), in order to reflect the changes to section 267 in Public Law 108-357. The Treasury Department and the IRS intend to update other provisions in § 1.267(a)-3 to take into account the changes made to section 267(a)(3) by Public Law 108-357 in future guidance.
Section 332(a) provides a general rule that no gain or loss is recognized on the receipt by a corporation of property distributed in complete liquidation of another corporation. Section 332(d) was enacted to disallow the nonrecognition of gain to a foreign corporation through the complete liquidation of certain domestic holding companies, which could avoid the imposition of withholding tax that would otherwise apply to a section 301 distribution from these holding companies.
Section 332(d)(4) grants the Secretary the authority to issue regulations as appropriate to prevent the abuse of section 332(d). The repeal of section 958(b)(4) broadened the application of section 332(d)(3) to foreign corporations that are CFCs because of downward attribution from a foreign person. This result could lead to inappropriate results because any gain recognized on an exchange of stock of an applicable holding company under section 331 by a foreign corporation that is a CFC due to downward attribution from a foreign person could avoid U.S. tax if the CFC does not have U.S. shareholders that have current income inclusions under section 951(a). Therefore, in accordance with the regulatory authority provided in section 332(d)(4), the proposed regulations modify the definition of a CFC (so as to use the definition of a CFC in effect immediately before the repeal of section 958(b)(4)) for purposes of applying section 332(d)(3).
Section 367(a)(1) provides that if, in connection with an exchange described in section 332, 351, 354, 356, or 361, a United States person transfers property to a foreign corporation, the foreign corporation is not treated as a corporation for purposes of determining the extent to which gain is recognized on the transfer. Section 367(a)(1) does not apply, however, to certain transfers of stock or securities of a foreign corporation (including an indirect stock transfer) by a United States person (“U.S. transferor”) if the U.S. transferor enters into a gain recognition agreement (“GRA”) with respect to the transferred stock or securities.
The exception described in the preceding paragraph was added when section 958(b)(4) did not allow for downward attribution from foreign persons. A U.S. transferor that would not have been eligible for the exception because it held a less than five percent interest in the transferred stock or securities (or substantially all the assets of the transferred corporation) could now be eligible for the exception if the U.S. transferor holds at least five percent due to downward attribution of stock owned by a foreign person. A U.S. transferor's constructive ownership interest should not include an interest that is treated as owned as a result of downward attribution from a foreign person as it would inappropriately treat
Section 672(f)(1) generally provides that the grantor trust rules in sections 671 through 679 apply only to the extent they result in income being currently taken into account (either directly or through one or more entities) by a citizen or resident of the United States or a domestic corporation. To the extent that a trust or a portion thereof is not taxed as a grantor trust, the trust and its beneficiaries are taxable in accordance with the rules of sections 641 through 669. In the case of a foreign nongrantor trust, accumulation distributions are not only taxable to U.S. beneficiaries, but also subject to the “throwback rules” of sections 665 through 668.
Section 672(f)(3)(A) provides special rules, however, for a trust that is treated as owned by a CFC. Except as otherwise provided by regulations, CFCs are treated as domestic corporations for purposes of section 672(f)(1). Section 672(f)(3)(A). Before the repeal of section 958(b)(4), the portion of a trust's income that was treated as owned by a CFC would generally have been taxable currently to the U.S. shareholders to the extent the trust's income constituted subpart F income of the CFC.
After the repeal of section 958(b)(4), however, a CFC may have no U.S. shareholders that would be subject to tax on their pro rata share of its subpart F income under section 951(a). A CFC could be formed to facilitate tax-free accumulation of income in a trust for the benefit of United States persons and result in tax-free distributions from the trust to the U.S. beneficiaries. In such a case, none of the income or gain of the grantor trust would be taken into account by U.S. shareholders, despite constituting subpart F income, while distributions of income from the trust to its U.S. beneficiaries would not be subject to tax, and the throwback rules would be avoided entirely.
Therefore, the proposed regulations, in accordance with the regulatory authority provided in section 672(f)(3), provide that the only CFCs taken into account for purposes of section 672(f) are those that are CFCs without regard to downward attribution from foreign persons.
Section 706 provides rules for determining the taxable year of a partnership and its partners. Section 1.706-1(b)(6)(i) provides that in determining the taxable year of a partnership under section 706(b) and the regulations thereunder, any interest held by a disregarded foreign partner is not taken into account. A foreign partner is a disregarded foreign partner unless the foreign partner is allocated any gross income of the partnership that was effectively connected (or treated as effectively connected) with the conduct of a trade or business within the United States (“effectively connected income”) during the partnership's taxable year immediately preceding the current taxable year (or, if such partner was not a partner during the partnership's immediately preceding taxable year, the partnership reasonably believes that the partner will be allocated any such income during the current taxable year) and taxation of that income is not otherwise precluded under any U.S. income tax treaty. For purposes of these rules, § 1.706-1(b)(6)(ii) defines a foreign partner as a partner that is not a United States person (as defined in section 7701(a)(30)), but provides that CFCs are not treated as foreign partners. When § 1.706-1(b)(6)(ii) was added, CFCs were not treated as foreign partners for purposes of determining a partnership's taxable year under section 706 because the U.S. owners of such entities were subject to U.S. federal income taxation on a current basis with respect to certain income earned by these entities.
Section 863 and the regulations thereunder provide rules for determining the source of certain items of gross income, including gross income from space and ocean activities and international communications income. Section 863(d)(1) provides that, except as provided in regulations, any income derived from a space or ocean activity (“space and ocean income”) by a United States person is sourced in the United States (“U.S. source income”) and that any space and ocean income derived by a foreign person is sourced outside the United States (“foreign source income”). Regulations under section 863(d) include an exception from the statutory provision regarding space and ocean income derived by a foreign person if the foreign person is a CFC. Specifically, space and ocean income derived by a CFC is treated as U.S. source income, except to the extent that the income, based on all the facts and circumstances, is attributable to functions performed, resources employed, or risks assumed in a foreign country.
In the case of any United States person, 50 percent of any international communications income (as defined in section 863(e)(2)) is treated as U.S. source income and 50 percent of such income is treated as foreign source income. Section 863(e)(1)(A). Subject to certain exceptions, including exceptions set forth in regulations, international communications income derived by a foreign person is treated as foreign source income. Section 863(e)(1)(B)(i). Regulations under section 863(e) provide that international communications income derived by a CFC is treated as one-half U.S. source income and one-half foreign source income.
The status of the recipient of space and ocean income and international communications income as a CFC solely by reason of the repeal of section 958(b)(4) should not cause all or part of such income to be U.S. source income if it would not have been treated as such otherwise. Accordingly, in accordance with the regulatory authority provided in section 863(d)(1) and (e)(1)(B)(i), and consistent with the temporary relief announced in section 5.01 of Notice 2018-13, 2018-6 I.R.B. 341, these proposed regulations provide that whether a foreign corporation is a CFC for purposes of the rules under sections 863(d) and (e) treating space and ocean income and international communications income as U.S. source income in whole or in part is determined without regard to downward attribution from a foreign person.
In general, section 904(a) limits the amount of foreign income taxes that a taxpayer, including a U.S. shareholder, may claim as a credit against its U.S. income tax based on the taxpayer's foreign source income. Section 904(d) further limits the credit by category of foreign source income, with general category and passive category being two common categories of income. Passive category income includes passive income, which means income that would be FPHCI if the recipient were a CFC. This generally includes dividends, interest, rents, and royalties.
Rents and royalties received by a CFC are generally passive category income unless the income is derived in the active conduct of a trade or business (the “section 904 active rents and royalties exception”), taking into account activities of affiliated group members.
Financial services income received by certain CFCs or a domestic corporation is treated as general category income (the “financial services income rule”).
The formulation of the CFC look-through rule and the affiliated group rules in both the section 904 active rents and royalties exception and the financial services income rules was premised on the assumption that income of CFCs (including affiliated group members meeting the active conduct requirement or the financial services entity requirement) would be subject to U.S. tax under section 951(a) or on a distribution of earnings and profits generated by such income, and that foreign corporations to which the rules applied would be directly or indirectly controlled by United States persons able to obtain information concerning their activities, income, and expenses.
Accordingly, in accordance with the regulatory authority provided in section 904(d)(7), the regulations under section 904 are revised to limit the application of the affiliated group rules in the section 904 active rents and royalties exception and the financial services income rule, as well as the CFC look-through rule, to foreign corporations that are CFCs without regard to downward attribution from foreign persons. Further, the CFC look-through rule, as proposed to be revised at 83 FR 63200 (December 7, 2018), is further revised to apply only to U.S. shareholders that are U.S. shareholders without regard to downward attribution from foreign persons.
To ensure that the regulations under section 958 are consistent with the amended statute, this notice of proposed rulemaking removes the rule in § 1.958-2(d)(2) that corresponds to section 958(b)(4). It also revises
Section 1297(e) provides the rules used to measure a foreign corporation's assets for purposes of determining whether it meets the asset test in section 1297(a)(2) and is a passive foreign investment company (“PFIC”). If the foreign corporation is a CFC and is not a publicly traded corporation, when determining whether the average percentage of assets of the corporation that produce passive income is at least 50 percent, adjusted basis (rather than value) of the assets must be used. Section 1297(e)(2). Accordingly, shareholders of a foreign corporation that became a CFC as a result of the repeal of section 958(b)(4) will have to determine whether the average percentage of assets that produce passive income is at least 50 percent using adjusted basis.
The legislative history to section 1297(e) indicates that the adjusted basis
Generally, under chapter 61 of subtitle F of the Code, a payor must report to the IRS (using the appropriate Form 1099) certain payments or transactions with respect to United States persons that are not exempt recipients. The regulations under chapter 61 generally provide that the scope of payments or transactions subject to reporting under chapter 61 depends, in part, on whether or not the payor is a U.S. payor (as defined in § 1.6049-5(c)(5)), which generally includes United States persons and their foreign branches, as well as CFCs.
Foreign corporations that became CFCs solely as a result of the repeal of section 958(b)(4) could be subject to an increased burden from the reporting requirements under chapter 61 (and the backup withholding rules under section 3406). To mitigate the increased Form 1099 reporting by foreign corporations that may have no direct or indirect owners that are United States persons, in accordance with the regulatory authority provided in section 6049(a), proposed § 1.6049-5(c)(5)(i)(C) provides that a U.S. payor includes only a CFC that is a CFC without regard to downward attribution from a foreign person.
These regulations are generally proposed to apply on or after October 1, 2019.
A taxpayer may rely on the proposed regulations with respect to any period before the date that these regulations are published as final regulations in the
IRS Revenue Procedures, Revenue Rulings, notices, and other guidance cited in this document are published in the Internal Revenue Bulletin and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS website at
Executive Orders 13563 and 12866 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, of reducing costs, of harmonizing rules, and of promoting flexibility. The Treasury Department requests comment and any potential data regarding the expected impacts of this proposed regulation.
This regulation is subject to review under section 6(b) of Executive Order 12866 pursuant to the April 11, 2018, Memorandum of Agreement (“April 11, 2018 MOA”) between the Treasury Department and the Office of Management and Budget (“OMB”) regarding review of tax regulations. The Acting Administrator of the Office of Information and Regulatory Affairs (“OIRA”), OMB, has waived review of this proposed rule in accordance with section 6(a)(3)(A) of Executive Order 12866. OIRA will subsequently make a significance determination of the final rule under the terms of item 1 of the April 11, 2018 MOA between the Treasury Department and OMB regarding review of tax regulations.
Section 14213 of the Act repealed section 958(b)(4), effective beginning with the last taxable year of a foreign corporation that begins before January 1, 2018 (and taxable years of U.S. shareholders in which or with which such taxable years of foreign corporations end). The repeal of section 958(b)(4) by the Act modified the constructive ownership rules that determine whether a foreign corporation is a CFC and whether a U.S. person is a U.S. shareholder of a CFC. Under section 318(a)(3), stock owned by a person is attributed downward to (that is, considered to be owned by) a partnership, estate, trust, or corporation in which the person owns an interest. Prior to repeal, section 958(b)(4) limited the application of section 318(a)(3) for purposes of determining whether a foreign corporation is a CFC and whether a U.S. person is a U.S. shareholder by providing that downward attribution under section 318(a)(3) was not applied so as to consider a U.S. person as owning the stock owned by a foreign person. After the repeal of section 958(b)(4), such stock owned by a foreign person can be attributed downward to a U.S. person, for example, to a U.S. subsidiary of a foreign parent. As a result, additional foreign corporations are now CFCs, and U.S. persons are now U.S. shareholders of CFCs, even in cases where the foreign corporation has no or little U.S ownership.
The legislative history to the Act states that the repeal of section 958(b)(4) was intended “to render ineffective certain transactions that are used to [sic] as a means of avoiding the subpart F provisions.”
The treatment of a foreign corporation as a CFC, or a U.S. person as a U.S. shareholder, has consequences outside of subpart F because many statutes and regulations outside of subpart F have rules that turn on the status of a foreign corporation as a CFC or the status of a U.S. person as a U.S. shareholder.
These proposed regulations propose changes that are generally intended to ensure that, in appropriate circumstances, the operation of certain rules is consistent with their application before the repeal of section 958(b)(4). This creates continuity and gives taxpayers tax certainty, which allows them to make economically efficient decisions. By restoring the pre-Act rule for certain provisions, the proposed regulations both alleviate certain burdens of CFC status resulting from the section 958(b)(4) repeal unrelated to the aforementioned intended purposes of the repeal and neutralize possible incentives to unfairly exploit the section 958(b)(4) repeal.
The economic analysis that follows compares the proposed regulations to a no-action baseline reflecting anticipated Federal income tax-related behavior in the absence of the proposed regulations. A no-action baseline reflects the current environment including the existing international tax regulations, prior to any amendment by the proposed regulations.
As described in Part I.A of this Special Analyses, the repeal of section 958(b)(4) causes stock owned by a foreign parent to be attributed to its U.S. subsidiaries, which can cause a foreign subsidiary of a foreign parent to be designated as a CFC, even in instances where there is little or no U.S. ownership in the foreign multinational group. The Treasury Department and the IRS estimate the number of U.S. subsidiaries owned 50 percent or more by a foreign corporation to be roughly 75,000 based on 2016 Treasury tax files data. To the extent that these foreign corporations have foreign subsidiaries, they are potentially affected by the proposed regulations. Unfortunately, however, data do not exist regarding the number of such foreign subsidiaries. The costs and benefits of these proposed regulations are discussed further in this Part I.D.
Restoring continuity with pre-repeal rules in appropriate cases is beneficial in two primary ways. First, it reinstates expected reporting burdens and tax costs for businesses that would otherwise experience unintended and unanticipated increases in these costs due to the unexpected switch to CFC designation described in Part I.A of this Special Analyses. Unanticipated increases in costs can be detrimental to normal business operations and can put affected groups at a disadvantage relative to competitors who did not experience such changes. Regulations designed to maintain continuity of normal business operations are appropriate and will promote a positive business environment relative to the no action baseline.
One of the provisions in these proposed regulations that alleviates burden is the provision under section 863 on income from space and ocean activities and international communications income. In this case (as well as in all other aspects of these proposed regulations), the proposed regulations prevent unintended disruption in business activity by determining CFC status as if section 958(b)(4) had not been repealed. In the absence of these proposed regulations, foreign-parented multinational groups in the space, ocean, and international communications industries that have U.S. subsidiaries could potentially have their foreign subsidiaries designated as CFCs. The designation of the foreign subsidiaries of the foreign-parented multinational groups as CFCs would result in all (in the case of space and ocean income) or half (in the case of international communications income) of the foreign subsidiary's space and ocean income or international communications income being treated as U.S. source income where the CFCs are controlled directly or indirectly by foreign persons. Comments received suggested that such treatment would render companies' business models untenable. Accordingly, the proposed regulations provide that for purposes of the treatment of space and ocean income and international communications income as U.S. source income, the determination of whether a foreign corporation is a CFC is made without regard to downward attribution from a foreign person. See Part I.F of the Explanation of Provisions for further explanation of this provision.
Another example of reduced burden under this rule relates to the timing of certain transactions. As explained in Part I.A of the Explanation of Provisions, section 267(a)(2) provides a rule for determining the time at which an otherwise deductible amount owed to a related person may be deducted. In general, if a payee is on the cash method of accounting, the payor is not allowed a deduction until the amount is actually paid, even if the payor uses the accrual method of accounting. The current regulations include an exemption that allows an accrual-based payor to deduct certain treaty-exempt amounts before they are actually paid to a related foreign person. However, this exemption is not allowed if the related foreign person is a CFC. Instead, with respect to an amount owed to a CFC, the payor may only take a deduction in an earlier year to the extent that an amount attributable to the item is includible during such prior taxable year in the gross income of a U.S. person who owns stock in the CFC. However, after the repeal of section 958(b)(4), a CFC may not have any U.S. shareholders that would have an income inclusion under subpart F. In this situation, the payor would be unable to deduct the amount until it is actually paid.
Because of the effective date of the repeal of section 958(b)(4), a foreign corporation that was not a CFC under prior law could now become a CFC beginning as early as January 1, 2017 (even though the Act was not enacted until December 22, 2017). Accordingly, a taxpayer may have deducted an amount accrued in 2017 that, due to the repeal of section 958(b)(4), would no longer be allowable in 2017. Furthermore, due to the reduction of the corporate tax rate in the Act, a deduction allowed on a company's 2017 tax return at the then statutory rate of 35 percent would be valued at 21 percent if the taxpayer were forced to move the deduction to 2018 or 2019. The repeal of section 958(b)(4) in this situation may result in an inadvertent deferral of certain deductions with permanent tax effect and correspondingly create unnecessary required adjustments to the income tax provisions in companies' financial accounting statements. The proposed guidance removes inconsistent annual treatment of deductions for certain treaty-exempt payments in the year the amounts are accrued when the amounts are owed to related foreign corporations that do not have any direct or indirect U.S. shareholders.
The second benefit of restoring pre-Act treatment is that doing so can neutralize unanticipated incentives for tax minimization resulting from the repeal. That is, CFC status can both increase burdens and offer benefits, but the unintended increase in CFC designations and the ease with which taxpayers can create a CFC could incentivize taxpayers to take advantage of potential benefits arising from CFC status. For example, Part I.B of the
The proposed regulations restore pre-section 958(b)(4) repeal CFC designation by determining CFC designation in limited situations as if section 958(b)(4) had not been repealed, essentially restoring the pre-repeal “status quo” in these situations. The proposed regulations do not impose any new systems, methods, structures, reporting, or other potentially burdensome rules that could increase compliance costs. In fact, as described above, they reduce costs or burdens that would ensue in the absence of the proposed regulations. Hence, in restoring the status quo in appropriate circumstances, the proposed regulations are not expected to impose new costs.
It is hereby certified that these proposed regulations will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6). The proposed regulations generally affect CFCs and U.S. shareholders of CFCs. As an initial matter, CFCs, as foreign corporations, are not considered small entities. Nor are U.S. taxpayers considered small entities to the extent the taxpayers are natural persons or entities other than small entities. Thus, the proposed regulations generally only affect small entities if a U.S. taxpayer that is a U.S. shareholder of a CFC is a small entity.
Businesses that are U.S. shareholders of CFCs are generally not small businesses because the ownership of sufficient stock of a CFC in order to be a U.S. shareholder generally entails significant resources and investment. Therefore, the Treasury Department and the IRS have determined that the proposed regulations would not affect a substantial number of domestic small business entities. Moreover, the proposed regulations do not impose any new costs on taxpayers. Consequently, the Treasury Department and the IRS have determined that the proposed regulations will not have a significant economic impact on a substantial number of small entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required.
Pursuant to section 7805(f), this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. The Treasury Department and the IRS request comments on the impact of these proposed regulations on small business entities.
Before the proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the
All comments will be available at
The principal authors of the proposed regulations are Karen J. Cate and Jorge M. Oben of the Office of Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in the development of the proposed regulations.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.267(a)-3 also issued under 26 U.S.C. 267(a)(3)(A) and (a)(3)(B)(ii).
Section 1.332-8 also issued under 26 U.S.C. 332(d)(4).
Section 1.1297-1 also issued under 26 U.S.C. 1298(g).
The revisions and addition read as follows:
(c) * * *
(4)
(d) * * * Except as otherwise provided in this paragraph (d), the regulations in this section issued under section 267 apply to all other deductible amounts that are incurred after July 31, 1989, but do not apply to amounts that are incurred pursuant to a contract that
(a)
(b)
The revision and addition read as follows:
(k) * * *
(14) * * *
(ii) * * * If, as a result of the disposition or other event, a foreign corporation acquires the transferred stock or securities or, as applicable, substantially all the assets of the transferred corporation, the condition of this paragraph (k)(14)(ii) is satisfied only if the U.S. transferor owns at least five percent (applying the attribution rules of section 318, as modified by section 958(b), without applying subparagraphs (A), (B), and (C) of section 318(a)(3) so as to consider the U.S. transferor as owning stock which is owned by a person who is not a United States person) of the total voting power and the total value of the outstanding stock of such foreign corporation.
(r)
(i) * * * Paragraph (k)(14)(ii) of this section applies to transfers occurring on or after October 1, 2019, and to transfers occurring before October 1, 2019, that result from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after October 1, 2019. For transfers occurring before October 1, 2019, other than transfers occurring before October 1, 2019, that result from an entity classification election made under § 301.7701-3 of this chapter that is filed on or after October 1, 2019, a taxpayer may apply paragraph (k)(14)(ii) of this section to transfers occurring during the last taxable year of a transferee foreign corporation beginning before January 1, 2018, and each subsequent taxable year of the foreign corporation, provided that the taxpayer and United States persons that are related (within the meaning of section 267 or 707) to the taxpayer consistently apply such paragraph with respect to all foreign corporations.
(a)
(e)
The revisions and addition read as follows:
(b) * * *
(6) * * *
(ii)
(v)
The revisions and addition read as follows:
(b) * * *
(2) * * *
(ii) * * * Space and ocean income derived by a controlled foreign corporation (CFC) is income from sources within the United States. * * * For purposes of this section, a controlled foreign corporation has the meaning provided in section 957, determined without applying subparagraphs (A), (B), and (C) of section 318(a)(3) so as to consider a United States person as owning stock which is owned by a person who is not a United States person.
(h)
(b) * * *
(2) * * *
(ii)
(l)
The revisions read as follows:
(a) * * *
(4) * * *
(i) The term
(vi) The term
(o)
The revisions and addition read as follows:
(g) * * *
(4)
(h)
(d) * * *
(1) * * *
(A)
(g) * * *
(1)
(c) * * *
(5) * * *
(i) * * *
(C) A controlled foreign corporation within the meaning of section 957, determined without applying subparagraphs (A), (B), and (C) of section 318(a)(3) so as to consider a United States person as owning stock which is owned by a person who is not a United States person.
(g)
Internal Revenue Service (IRS), Treasury.
Correction to a notice of proposed rulemaking.
This document contains a correction to a notice of proposed rulemaking (REG-130700-14) that was published in the
Written or electronic comments and requests for a public hearing are still being accepted and must be received by November 12, 2019.
Submit electronic submissions via the Federal eRulemaking Portal at
Concerning the proposed regulations Robert Z. Kelley, (202) 317-6939; concerning submissions of comments and requests for a public hearing, email or call Regina L. Johnson at
The proposed regulations that are the subject of this correction are under section 861 of the Internal Revenue Code.
As published, the notice of proposed rulemaking (REG-130700-14) contains errors which may prove to be misleading and need to be clarified.
Accordingly, the notice of proposed rulemaking (REG-130700-14) that was the subject of FR Doc. 2019-17425, published at 84 FR 40317 (August 14, 2019), is corrected to read as follows:
1. On page 40320, first column, in the preamble, the sixteenth and seventeenth lines from the top of the second full paragraph, the language “of time, whether or not the content is transferred in a physical medium.” is corrected to read “of time.”
2. On page 40321, third column, in the preamble, the fourteenth line from the top of the second full paragraph, the language “licenses, and services, but there are” is corrected to read, “licenses, leases, and services, but there are”.
In proposed rule document 2019-20099 beginning on page 50174 in the issue of Tuesday, September 24, 2019, make the following correction:
On page 50174, in the first column, in the 23rd line, “October 24, 2019” should read “October 17, 2019”.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to revise existing regulations and consolidate into one table special local regulations for recurring marine events at various locations within the geographic boundaries of the Seventh Coast Guard District Captain of the Port (COTP) Miami Zone. Consolidating marine events into one table simplifies Coast Guard oversight and public notification of special local regulations within COTP Miami Zone. The Coast Guard invites your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before November 1, 2019.
You may submit comments identified by docket number USCG-2018-0749 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Omar Beceiro, Sector Miami Waterways Management Division, U.S. Coast Guard; telephone 305-535-4317, email
Recurring races, swims, and other marine events within the Seventh Coast Guard District are currently listed in 33 CFR 100.701, Table to § 100.701. The process for amending the table (
This rule serves two purposes: (1) Create a table of recurring marine events/special local regulations occurring solely within the COTP Miami Zone, and (2) consolidate into that table marine events/special local regulations previously established outside of Table to § 100.701. The resultant table would facilitate management of and public access to information about marine events within the COTP Miami Zone.
The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70041.
This rulemaking proposes to make the following changes:
1. Establish 33 CFR 100.702 Special Local Regulations; Marine Events Within the Captain of the Port Miami;
2. Move existing marine events/special local regulations from Table to § 100.701 under (a) COTP Zone Miami; Special Local Regulations (33 CFR 100.701) to new Table to § 100.702;
3. Move 33 CFR 100.723 Special Local Regulation; Fort Lauderdale Grand Prix of the Seas; Fort Lauderdale, FL to Table to § 100.702, and delete existing § 100.723;
4. Move 33 CFR 100.726, Special Local Regulation; Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FL to Table to § 100.702, and delete existing § 100.726;
5. Revise Special Local Regulation; Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FL dates to “One weekend in May (Friday, Saturday, and Sunday)” in Table to § 100.702;
6. Move 33 CFR 100.729, Columbus Day Regatta, Biscayne Bay, Miami, FL to Table to § 100.702, and delete existing § 100.729; and
7. Add Miami Beach Air and Sea Show (new) to Table to § 100.702.
Marine events are listed as occurring over a particular weekend and month each year. Exact dates are intentionally omitted since calendar dates for a specific weekend change from year to year. Once dates for a marine event are known, the Coast Guard notifies the public it intends to enforce the special local regulation through various means including a Notice of Enforcement published in the
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the special local regulations. These areas are limited in size and duration, and usually do not affect high vessel traffic areas. Moreover, the Coast Guard would provide advance notice of the regulated areas to the local maritime community by Local Notice to Mariners, Broadcast to Mariners via VHF-FM marine channel 16, and the rule would allow vessels to seek permission to enter the regulated area.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a state, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of special local regulations for recurring marine events within the COTP Miami Zone. Normally such actions are categorically excluded from further review under paragraphs L61 in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated in
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
The following regulations apply to the marine events listed in Table 1 of this section. These regulations will be effective annually for the duration listed in Table 1. The Coast Guard will notify the maritime community of exact dates and times each regulation will be in effect and the nature of each event (
(a)
(1)
(2)
(b)
(c)
(2) The COTP Miami or Designated Representative may terminate the event, or the operation of any vessel participating in the event, at any time it is deemed necessary for the protection of life or property.
(3) Only event sponsor designated participants and official patrol vessels are allowed to enter the regulated area, unless otherwise authorized by the COTP Miami or Designated Representative.
(4) Spectators may request permission from the COTP Miami or Designated Representative to enter, transit, remain within, or anchor in the regulated area. If permission is granted, spectators must abide by the directions of the COTP Miami or a Designated Representative.
(c) The COTP Miami or Designated Representative may delay or terminate any event in this subpart at any time to ensure safety of life or property. Such action may be justified as a result of weather, traffic density, spectator operation, or participant behavior.
Environmental Protection Agency (EPA).
Reopen comment period.
On July 26, 2019, the Environmental Protection Agency (EPA) proposed a rule titled “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act.” The EPA is reopening the comment period on the proposed rule that closed on September 24, 2019. The comment period will remain open until November 1, 2019 to allow additional time for stakeholders to review and comment on the proposal.
The public comment period for the proposed rule published in the
•
•
•
•
•
The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
The
For questions about this proposed action, contact Ms. Elineth Torres, Sector Policies and Programs Division (D205-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-4347; fax number: (919) 541-4991; and email address:
To allow for additional time for stakeholders to provide comments, the EPA has decided to reopen the public comment period until November 1, 2019.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 and several sections of the NDAA for FY 2018 that increase the micro-purchase threshold (MPT), increase the simplified acquisition threshold (SAT), and clarify certain procurement terms, as well as align some non-statutory thresholds with the MPT and SAT.
Interested parties should submit comments to the Regulatory Secretariat Division at one of the addresses shown below on or before December 2, 2019 to be considered in the formulation of a final rule.
Submit comments in response to FAR Case 2018-004 by any of the following methods:
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Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949 or
DoD, GSA, and NASA are proposing to amend the FAR to implement section 217(b) of the NDAA for FY 2017 (Pub. L. 114-328) and sections 805, 806, and 1702(a) of the NDAA for FY 2018 (Pub. L. 115-91). The proposed rule will also replace non-statutory, stated dollar thresholds that are intended to correspond with the MPT and SAT, with the text “micro-purchase threshold” and “simplified acquisition threshold.” Referencing some stated thresholds by name instead of by a specific dollar value will ease maintenance of regulations, given the likelihood of future changes to the threshold amounts. Text clarifying the use of the approval thresholds, based on the increase of the SAT, for sole source justifications executed under the simplified procedures for certain commercial items has been added to subpart 13.5.
Section 217(b) amends 41 U.S.C. 1902 to increase the MPT for acquisitions from institutions of higher education or related or affiliated nonprofit entities, or from nonprofit research organizations or independent research institutes, from $3,500 to $10,000, or a higher amount as determined appropriate by the head of the agency and consistent with clean audit findings under 31 U.S.C. Chapter 75, an internal institutional risk assessment, or State law.
Section 806 increases the MPT in 41 U.S.C. 1902(a) to $10,000.
Section 805 increases the SAT to $250,000.
Section 1702(a) amends section 15(j)(1) of the Small Business Act (15 U.S.C. 644(j)(1)) to replace specific dollar thresholds with the terms “micro-purchase threshold” and “simplified acquisition threshold.”
This rule proposes to amend the FAR, as follows:
• At FAR Part 2, to—
○ Replace “$3,500” with “$10,000” and add an exception to the MPT for acquisitions from institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or independent research institutes, at the definition of “micro-purchase threshold” and,
○ Replace “$150,000” with “$250,000” at the definition of “simplified acquisition threshold.”
• At FAR Part 3, to replace “simplified acquisition threshold” with “$150,000” at 3.502-3 to conform to 3.502-2(i).
• At FAR part 9, to replace “$3,500” with “$10,000” as the Federal tax delinquency threshold, at 9.406-2(b)(1)(v) replaces “$3,500” with “the threshold at FAR 9.104-5(a)(2)” and at 9.407-2(a)(7) replaces “$3,500” with “the threshold at FAR 9.104-5(a)(2)”. When an offeror indicates in its representations and certifications a delinquency in excess of the threshold, a contracting officer must report that information to the agency's suspending or debarring official, and, a suspending or debarring official may suspend or debar a contractor for delinquent Federal taxes in excess of the threshold.
• At FAR part 13, to replace “$3,500” with “the micro-purchase threshold” and “$150,000” with “the simplified acquisition threshold” when addressing the thresholds for acquisitions that are reserved exclusively for small business concerns;
○ At FAR 13.005, List of laws inapplicable to contracts and subcontracts at or below the simplified acquisition threshold, there is an impact of this increase in the SAT. This list was first required by section 4101 of FASA (Pub. L. 103-355), now codified at 41 U.S.C. 1906. FASA sections 4102-4104 made certain laws inapplicable below the SAT, and made other laws inapplicable below $100,000. At the time, these two thresholds were of equivalent value, so there was no problem with listing all of them at FAR 13.005. Intervening escalation raised all of these thresholds to $150,000. However, now that the SAT has been increased to $250,000, those thresholds that were set at a dollar value rather than at the SAT, are not increasing to $250,000. Therefore, the following laws should be removed from the list at FAR 13.005: 13.005(a)(1), (a)(2), (a)(3), and (a)(5);
○ At FAR 13.501(a)(2) to clarify the procedures to be used for justifications of other than full and open competition, when the simplified acquisition threshold is raised,
• At FAR part 16, to replace “$150,000” with “the simplified acquisition threshold” when addressing the maximum threshold for fixed-ceiling-price contracts with retroactive price redetermination and the maximum threshold for firm-fixed-price, level-of-effort term contracts, without higher level approval.
• At FAR part 19, to replace “$3,500” with “the micro-purchase threshold” and/or “$150,000” with “the simplified acquisition threshold” when addressing set-aside requirements, and inserting the clause for FAR 52.219-14, Limitations on Subcontracting.
• At FAR part 22, specifically, 22.1803, replace “the simplified acquisition threshold” with “$150,000.”
• At FAR part 25, to replace “$3,500” with “10,000” as the “significant transaction” amount an offeror may not exceed when engaging with Iran's Revolutionary Guard Corps or any of its officials, agents, or affiliates.
• At FAR part 52, to—
○ Replace “$3,500” with “the threshold at 9.104-5(a)(2)” at FAR 52.209-5(a)(1)(i)(D) and FAR 52.212-3(h)(4);
○ Replace “$150,000” with the “simplified acquisition threshold” as the subcontractor flow-down threshold for FAR 52.203-16, Preventing Personal Conflicts of Interest;
○ Replace “$3,500” with “the micro-purchase threshold” as the threshold an offer must exceed, unless otherwise required, for the offeror to be required to provide its unique entity identifier, as stated in paragraph (j) of FAR provision 52.212-1, Instruction to Offerors—Commercial Items;
○ Replace the threshold an offeror must certify, in paragraph (o)(2)(iii) of FAR 52.212-3, and FAR 52.225-25, Prohibition on Contracting with Entities Engaging in Certain Activities or Transactions Relating to Iran—Representation and Certifications, it has not exceeded when engaging with Iran's Revolutionary Guard Corps or any of its officials, agents, or affiliates. The clause title of FAR 52.225-25 is also corrected. The threshold will be that at FAR 25.703-2(a)(2);
○ Replace “$150,000” with “the simplified acquisition threshold” as the threshold a subcontract award must exceed in order for a contractor to be required to keep records on the corresponding subcontract solicitation, as identified in FAR clause 52.219-9, Small Business Subcontracting Plan and its Alternate IV.
This rule impacts any business, large or small, that prepares quotes exceeding $3,500 ($5,000 for DoD) and not exceeding $10,000 (or higher for select educational institutions); proposals exceeding $150,000 and not exceeding $250,000; and proposals exceeding $300,000 and not exceeding $500,000, in support of humanitarian or peacekeeping operations. This rule does not add any new solicitation provisions or contract clauses. Rather, it reduces burden on contractors by increasing the thresholds at which various regulatory burdens apply.
Increasing the MPT and SAT means additional awards could be made under the MPT and additional awards could be made under the SAT. The additional awards at or below the MPT would not require provisions or clauses, except as provided in FAR 13.202 and FAR 32.1110, and the additional awards at or below the SAT would be awarded without provisions and clauses which are prescribed only above the SAT. In addition to including fewer regulations in applicable awards, the proposed rule would allow for more awards based on quotes in lieu of a formal proposal, thereby reducing the contractor's bid and proposal costs. Costs associated with contractor financing could also be reduced by increasing the number of micro-purchases, for which the Governmentwide purchase card is the preferred method of purchase and payment (see FAR 13.201(b)).
To determine the dollar amounts and entities affected, data was pulled from the Federal Procurement Data System (FPDS) from fiscal years 2015-2018. For the micro-purchase value change, there was an annual average in total impacted contract awards of $2,442,317 for small businesses and $1,359,916 for other than small businesses for contracts with values exceeding $3,500 ($5,000 for DOD), but less than or equal to $10,000 (or higher, for educational institutions). For the simplified acquisition threshold change, there was an annual average in total impacted contract awards of $300,073,039 for small businesses and $161,715,144 for other than small businesses for contracts with values exceeding $150,000, but less than or equal to $250,000 (from $300,000 to $500,000 for contingency, humanitarian, or peacekeeping awards).
Commercial item awards, as well as orders placed through indefinite-quantity contract orders and other large contracting schedule orders, were removed from this calculation to determine the cost reduction on offerors and contractors. Commercial items were removed from this calculation because the simplified threshold for commercial item awards is set at $7 million, so the increased SAT threshold would not impact compliance or business procedures for contractors with awards conducted through commercial item procedures.
To calculate the burden reduction on Government by raising these thresholds, indefinite-quantity contracts were included, as the threshold changes would impact Government acquisition procedures.
The Federal Acquisition Streamlining Act (FASA) made a number of laws inapplicable to items procured under the SAT. This was meant to save both the Government and service providers money while also expediting the entire contract process. When finalized, this rule will decrease the number of regulatory requirements agencies need to include in awards.
Because this rule will reduce bid and proposal costs and other administrative burdens and since it does not implement any new requirements on offerors, DoD, GSA, and NASA believe this rule to be deregulatory.
Please see the Regulatory Cost Analysis narrative for an in-depth discussion of data used to calculate the estimated reduced burden on contractors and the Government. To access the full Regulatory Cost Analysis for this rule, go to the Federal eRulemaking Portal at
In an attempt to quantify savings as a result of this rule, DoD, GSA, and NASA seek input from contractors that could be impacted by this rule. In addition to the Government cost savings discussed in the accompanying materials in the docket at
1. The total bid and proposal (B&P) cost and the total number of proposals in Fiscal Year (FY) 2018 for proposals greater than $150,000 and less than or equal to $250,000, including the hours expended in the preparation of the proposals and personnel involved. If available, the total cost related to compliance for awards greater than $150,000 and less than or equal to $250,000 that could be eliminated by using simplified acquisition procedures.
2. The total B&P cost and the total number of quotes in FY 2018 for quotes less than or equal to $150,000, including the hours expended in the preparation of the quotes and personnel involved.
3. The total B&P cost and the total number of quotes in FY18 for quotes greater than $3,500 and less than or equal to $10,000, including the hours expended in the preparation of the quotes and personnel involved. If available, the total cost related to compliance for awards greater than $3,500 and less than or equal to $10,000 that could be eliminated by conducting a micro-purchase.
4. The total B&P cost and the total number of quotes in FY18 for quotes less than or equal to $3,500, including the hours expended in the preparation of the quotes and personnel involved.
The rule applies to contracts at or below the simplified acquisition threshold, and to contracts for commercial items, including COTS items. However, it does not add any new solicitation provisions or contract clauses, and it reduces burden on contractors by increasing the thresholds at which various regulatory burdens apply.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is an economically significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is a major rule under 5 U.S.C. 804.
This proposed rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
This rule is subject to E.O. 13771 because this rule is an economically significant regulatory action under E.O. 12866. As explained in section III of this preamble and in the accompanying documentation available in the docket at
DoD, GSA, and NASA expect this rule to have a positive significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
DoD, GSA, and NASA are proposing to amend the FAR to implement a section of the NDAA for Fiscal Year (FY) 2017 and several sections of the NDAA for FY 2018 that increase the MPT, increase the SAT, clarify certain procurement terms, as well as align non-statutory thresholds with the MPT and SAT.
The objective of the rule is to implement section 217(b) of the NDAA for FY 2017 (Pub. L. 114-328) and sections 805, 806, and
According to data from the Federal Procurement Data System (FPDS), there were 505 contracts awarded in FY 2018 with a value exceeding $3,500 ($5,000 for DOD), but less than or equal to $10,000 wherein contractors would have a change in compliance requirements. Of the 505 new awards, 358 (71 percent) of these actions were awarded to 198 unique small business entities.
Data from FPDS also indicates that in FY 2018, there were no (0) small business entities that had additional contract actions for educational or related institutions for contracts with a value exceeding $10,000, but less than or equal to $15,000 (equivalent to the upper bound of the expected micro-purchase value for these types of institutions) wherein contractors would have a change in compliance requirements.
Data from FPDS also indicates there were 3,653 new contracts awarded in FY 2018 with a value exceeding $150,000, but less than or equal to $250,000 wherein contractors would have a change in compliance requirements. Of these, 2,621 (72 percent) of these actions were awarded to 1,680 unique small business entities.
As mentioned previously, commercial items were removed from this calculation because the simplified threshold for commercial item awards is set at $7 million, so the increased SAT threshold would not impact compliance or business procedures for contractors with awards conducted through commercial item procedures.
Data from the FPDS further indicates that for contingency, humanitarian, or peacekeeping contract actions, there were 11 new total contracts awarded in FY 2018 with a value exceeding $300,000 but less than or equal to $500,000 wherein contractors would have a change in compliance requirements. Of these, 4 (36 percent) of these actions were awarded to 4 unique small business entities.
This rule will also change the small-business set aside threshold under FAR 19.502; instead of being from greater than $3,500 to less than or equal to $150,000, the threshold will be from greater than $10,000 to less than or equal to $250,000. This is expected to increase the number of small business entities able to do business with the Government; for contracts affected by this threshold change, (please see full regulatory cost analysis for explanation of excepted contract types), in FY 2018, there were 3,653 records exceeding $150,000 and less than or equal to $250,000, while there were 505 records exceeding $3,500 ($5,000 for DOD) and less than or equal to $10,000.
As of September 30, 2017, there were 637,791 active entity registrations in SAM. Of those active entity registrations, 452,310 (71 percent) completed all four modules of the registration, in accordance with the definition “Registered in the System for Award Management (SAM)” at FAR 52.204-7(a), including Assertions (where they enter their size metrics and select their NAICS Codes) and Reps & Certs (where they certify to the information they provided and the size indicator by NAICS).
Of the possible 452,310 active SAM entity registrations, 338,207 (75 percent) certified to meeting the size standard of small for their primary NAICS Code. Therefore, this rule may be beneficial to 338,207 small business entities that submit solicitation responses that may now fall under the MPT or SAT and have streamlined procedures as a result of this rule.
The proposed rule applies to all entities who do business with the Federal Government.
This proposed rule does not include any new reporting, recordkeeping, or other compliance requirements. The rule reduces burden on contractors by increasing the thresholds at which various regulatory burdens begin to apply. The proposed rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the proposed rule that would meet the requirements of the applicable requirement.
The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2018-004), in correspondence.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 9, 13, 16, 19, 22, 25, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
The addition reads as follows:
(b) * * *
(4) For acquisitions of supplies or services from institutions of higher education (20 U.S.C. 1001(a)) or related or affiliated nonprofit entities, or from nonprofit research organizations or independent research institutes—
(i) $10,000; or
(ii) A higher threshold, as determined appropriate by the head of the agency and consistent with clean audit findings under 31 U.S.C. chapter 75, Requirements for Single Audits; an internal institutional risk assessment; or State law.
(b)(1) Acquisitions of supplies or services that have an anticipated dollar value exceeding the micro-purchase threshold but not exceeding the simplified acquisition threshold are reserved exclusively for small business concerns and shall be set aside (see 19.000, 19.203, and subpart 19.5).
(a) The following laws are inapplicable to all contracts and subcontracts (if otherwise applicable to subcontracts) at or below the simplified acquisition threshold pursuant to 41 U.S.C. 1905:
(1) 41 U.S.C. 8102(a)(1) (Drug-Free Workplace), except for individuals.
(2) 10 U.S.C. 2306(b) and 41 U.S.C. 3901(b) (Contract Clause Regarding Contingent Fees).
(3) 10 U.S.C. 2313 and 41 U.S.C. 4706 (Authority to Examine Books and Records of Contractors).
(4) 10 U.S.C. 2402 and 41 U.S.C. 4704 (Prohibition on Limiting Subcontractors Direct Sales to the United States).
(5) 15 U.S.C. 631 note (HUBZone Act of 1997), except for 15 U.S.C. 657a(b)(2)(B), which is optional for the agencies subject to the requirements of the Act.
(6) 31 U.S.C. 1354(a) (Limitation on use of appropriated funds for contracts with entities not meeting veterans employment reporting requirements).
(7) 22 U.S.C. 2593e (Measures Against Persons Involved in Activities that Violate Arms Control Treaties or Agreements with the United States). (The requirement at 22 U.S.C. 2593e(c)(3)(B) to provide a certification does not apply).
(b)
The revision reads as follows:
(a) * * * Each acquisition of supplies or services that has an anticipated dollar value exceeding the micro-purchase threshold, but not over the simplified acquisition threshold, is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. * * *
The revision reads as follows:
The revision reads as follows:
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The revisions read as follows:
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which specifies the criteria that must be met in order to include lowest price technically acceptable (LPTA) source selection criteria in a solicitation; and requires procurements predominantly for the acquisition of certain services and supplies to avoid the use of LPTA source selection criteria, to the maximum extent practicable.
Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before December 2, 2019 to be considered in the formation of the final rule.
Submit comments in response to FAR Case 2018-016 by any of the following methods:
•
•
Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949 or
Section 880 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232, 41 U.S.C. 3701 Note) makes it the policy of the Government to avoid using Lowest Price Technically Acceptable (LPTA) source selection criteria in circumstances that would
Additionally, section 880 requires that the use of LPTA source selection criteria be avoided, to the maximum extent practicable, in procurements that are predominantly for the acquisition of: information technology services; cybersecurity services; systems engineering and technical assistance services; advanced electronic testing; audit or audit readiness services; health care services and records; telecommunications devices and services; or other knowledge-based professional services; personal protective equipment; or, knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
This proposed rule would require contracting officers to: ensure procurements meet the criteria of section 880 before including LPTA source selection criteria in solicitations; document the contract file with a justification for the use of the LPTA source selection process, when applicable; and, to avoid, to the maximum extent practicable, the use of LPTA source selection criteria in procurements that are predominantly for the supplies and services identified in section 880. This rule does not address the applicability of section 880 to the Federal Supply Schedules Program (Schedules Program). GSA will separately address the applicability of section 880 to the Schedules Program.
In addition, section 880 does not apply to DoD. Instead, section 813 of the NDAA for FY 2017 (10 U.S.C. 2305 Note) and section 822 of the NDAA for FY 2018 (10 U.S.C. 2305 Note) establish a similar, but not the same, set of criteria for DoD procurements to meet in order to use LPTA source selection criteria in solicitations. These sections are being implemented in a separate Defense Federal Acquisition Regulation Supplement case (2018-D010).
This proposed rule does not create any new provisions or clauses, nor does it change the applicability of any existing provisions or clauses included in solicitations and contracts valued at or below the SAT, or for commercial items, including COTS items.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.
DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) are proposing to revise the Federal Acquisition Regulation (FAR) to:
• Specify the criteria that must be met in order to include lowest price technically acceptable (LPTA) source selection criteria in a solicitation; and,
• Require procurements predominantly for the acquisition of certain services or supplies to avoid the use of LPTA source selection criteria, to the maximum extent practicable.
The objective of the rule is to avoid using LPTA source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process. The legal basis for the rule is section 880 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232). The rule does not cover DoD, which has already been covered by section 813 of the NDAA for FY 2017 and section 822 of the NDAA for FY 2018.
DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
• Federal competitive contracts and orders awarded using FAR parts 13, 15, or 16.5 procedures. In FY 2018, the Federal Government, excluding DoD, awarded approximately 82,337 new contracts and orders using the competitive procedures of FAR 13, 15, or 16.5. This data excludes acquisitions for the supply/service categories identified in section 880(c) of the NDAA for FY 2019. Of the 82,337 contracts and orders, approximately 69 percent (or 56,622 contracts and orders) were awarded to approximately 27,029 unique small businesses. It is important to note that FPDS does not collect data on solicitations, but does collect information on competitively awarded contracts using various FAR procedures. Therefore, this data represents contracts that were awarded using LPTA and tradeoff source selection procedures.
• Federal competitive contracts and orders awarded for certain services and supplies. In FY 2018, the Federal Government, excluding DoD, awarded approximately 22,581 new contracts and orders potentially for the supplies and services identified in section 880(c) of the NDAA for FY 2019 using the competitive procedures of FAR parts 13, 15, and 16.5, of which approximately 63 percent (or 14,285 contracts and orders) were awarded to approximately 10,129 unique small businesses.
The proposed rule does not impose any Paperwork Reduction Act reporting or
The proposed rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no known significant alternative approaches to the proposed rule that would meet the proposed objectives.
The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2018-016) in correspondence.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 12, 13, 15, 16 and 37 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(b) Contracting officers shall ensure the criteria at 15.101-2(c) are met when using the lowest price technically acceptable source selection process.
(a) * * *
(2) * * *
(i) Except for DoD, contracting officers shall ensure the criteria at 15.101-2(c)(1)-(5) are met when using the lowest price technically acceptable source selection process.
(ii) Except for DoD, avoid using the lowest price technically acceptable source selection process to acquire certain supplies and services in accordance with 15.101-2(d).
The addition reads as follows:
(b) * * *
(3) * * *
(iii) Except for DoD, when using lowest price technically acceptable source selection process, justifying the use of such process.
(c) Except for DoD, in accordance with section 880 of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232, 41 U.S.C. 3701 Note), the lowest price technically acceptable source selection process shall only be used when—
(1) The agency can comprehensively and clearly describe the minimum requirements in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers;
(2) The agency would realize no, or minimal, value from a proposal that exceeds the minimum technical or performance requirements;
(3) The agency believes the technical proposals will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;
(4) The agency has a high degree of confidence that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit to the agency;
(5) The agency determined that the lowest price reflects the total cost, including operation and support, of the product(s) or service(s) being acquired; and
(6) The contracting officer documents the contract file describing the circumstances that justify the use of the lowest price technically acceptable source selection process.
(d) Except for DoD, in accordance with section 880 of the National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232, 41 U.S.C. 3701 Note), contracting officers shall avoid, to the maximum extent practicable, using the lowest price technically acceptable source selection process in the case of a procurement that is predominantly for the acquisition of—
(1) Information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, health care services and records, telecommunications devices and services, or other knowledge-based professional services;
(2) Personal protective equipment; or
(3) Knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
The additions read as follows:
(b) * * *
(1) * * *
(ii) * * *
(F) Except for DoD, ensure the criteria at 15.101-2(c)(1)-(5) are met when using the lowest price technically acceptable source selection process; and
(G) Except for DoD, avoid using the lowest price technically acceptable source selection process to acquire certain supplies and services in accordance with 15.101-2(d).
(7) * * *
(iii) Except for DoD, the contracting officer shall document in the contract file a justification for use of the lowest price technically acceptable source selection process, when applicable.
(j) Except for DoD, see 15.101-2(d) for limitations on the use of the lowest price technically acceptable source selection process to acquire certain services.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act for Fiscal Year 2018 to increase the threshold for requiring certified cost or pricing data.
Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before December 2, 2019 to be considered in the formation of the final rule.
Submit comments in response to FAR Case 2018-005 by any of the following methods:
•
•
Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207 or
DoD, GSA and NASA are proposing to amend the FAR to implement section 811 of the NDAA for FY 2018 to increase the threshold for requesting certified cost or pricing data from $750,000 to $2 million for contracts entered into after June 30, 2018.
In the case of a change or modification made to a prime contract that was entered into before July 1, 2018, the threshold for obtaining certified cost or pricing data remains $750,000, with the following exception. Upon the request of a contractor that was required to submit certified cost or pricing data in connection with a prime contract entered into before July 1, 2018, the contracting officer shall modify the contract without requiring consideration to reflect a $2 million threshold for obtaining certified cost or pricing data from subcontractors. Similarly for sealed bidding, upon request by a contractor, the contracting officer shall modify the contract without requiring consideration to replace the relevant clause.
The proposed changes to the FAR are summarized in the following paragraphs.
A. Subpart 14.2, Solicitation of Bids, is revised to add the prescription for Alternate I of the clause at FAR 52.214-28, Subcontractor Certified Cost or Pricing Data-Modifications-Sealed Bidding. The Alternate I will be used in the circumstances described at FAR 14.201-7(c)(1)(ii).
B. Subpart 15.4, Contract Pricing, is revised to incorporate the revised threshold for obtaining certified cost or pricing data at FAR 15.403-4(a)(1). The example provided of a price adjustment is also revised to reflect the increased threshold. A new paragraph (a)(3) is added to allow a contractor with a prime contract entered into before July 1, 2018, to request that the contracting officer modify the contract without requiring consideration to reflect a $2 million threshold for obtaining certified cost or pricing data on subcontracts entered on and after July 1, 2018, by replacing the following clauses, as applicable. The prescriptions at FAR 15.408 will instruct the contracting officer to:
• Replace FAR clause 52.215-12, Subcontractor Certified Cost or Pricing Data, with its Alternate I.
• Replace FAR clause 52.215-13, Subcontractor Certified Cost or Pricing
C. Subpart 30.2, CAS Program Requirements, is revised to reflect the new $2 million threshold for inserting the FAR clause at 52.230-3, Disclosure and Consistency of Cost Accounting Practices, in negotiated contracts. The threshold for Cost Accounting Standards (CAS) applicability is required by 41 U.S.C. 1502(b)(1)(B) to be the same as the threshold at FAR 15.403-4(a)(1). Thus, changes are made to adjust the thresholds. Conforming changes are also made to the thresholds in FAR provision at 52.230-1, Cost Accounting Standards Notices and Certification; and the clauses at 52.230-2, Cost Accounting Standards; 52.230-3, Disclosure and Consistency of Cost Accounting Practices; 52.230-4, Disclosure and Consistency of Cost Accounting Practices—Foreign Concerns; and 52.230-5, Cost Accounting Standards—Educational Institution.
The proposed changes are not applicable to contracts at or below the simplified acquisition threshold or to contracts for the acquisition of commercial items.
DoD, GSA, and NASA have performed a regulatory cost analysis on this rule. The following is a summary of the estimated public and Government cost savings. This rule will impact large and small businesses which currently compete on solicitations issued using FAR part 15 negotiation procedures and are valued between $750,000 and $2 million as these firms will no longer be required to submit certified cost or pricing data between those amounts. In addition, because of the comparable increase in the cost accounting standards threshold, fewer contractors will be required to comply with FAR clauses that implement the cost accounting standards. The following is a summary of the estimated cost savings to the public calculated in perpetuity in 2016 dollars at a 7 percent discount rate:
The following is a summary of the estimated cost savings to the Government calculated in perpetuity in 2016 dollars at a 7 percent discount rate:
The Councils welcome comments on both the methodology and the analysis during the public comment period on this rule. To access the full Regulatory Cost Analysis for this rule, go to the Federal eRulemaking Portal at
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
This proposed rule is expected to be an E.O. 13771 deregulatory action. Information on the estimated cost savings of this rule are discussed in the “Expected Cost Savings” section of this preamble.
The changes in this rule are not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601,
DoD, GSA, and NASA are proposing to amend the FAR to increase the threshold for requiring certified cost or pricing data from $750,000 to $2 million.
The objective is to implement section 811 of the National Defense Authorization Act for Fiscal Year 2018 which amends 10 U.S.C. 2306a and 41 U.S.C. 3502 to increase the threshold for requesting certified cost or pricing data from $750,000 to $2 million.
This rule will impact small entities who compete on solicitations issued using FAR part 15, Contracting by Negotiation, valued between $750,000 and $2 million. It also impacts subcontracts and contract modifications, including those contracts awarded under sealed bidding procedures, valued between $750,000 and $2 million. Offerors and contractors under the revised threshold will no longer be required to submit “certified cost or pricing data” and will now submit “data other than certified cost or pricing data,” which takes less time to prepare.
In order to calculate the savings due to the increased threshold, the same FY 2016 Federal Procurement Data System (FPDS) data was utilized that was used to calculate information collection burdens associated with submission of certified cost or pricing data and of data other than certified cost or pricing data under the Office of Management and Budget (OMB) Control Number 9000-0013, which was cleared in January 2018. For contracts and orders awarded using FAR part 15 that were valued between $750,000 and $2 million, reflecting the actions impacted by the increase in the threshold, there were 2,697 contract awards/orders issued, 636 modifications to contracts or orders, an estimated 1,288 subcontracts awarded, and 592 subcontract modifications. Of these responses, 3,364 were from small entities. Of the 1,871 small entities that were awarded contract or issued orders, 1,501 were unique small entities (about 1.25 contracts/orders per small entity). We estimate a comparable ratio of actions to entities in the other categories. This ratio is less than the overall ratio of actions to entities because this is just a small slice of the total range covered by the information collection clearance. The cost accounting standards do not apply to small entities, therefore that threshold change only affects other than small entities.
The proposed rule does not include additional reporting or record keeping requirements.
The rule does not duplicate, overlap, or conflict with any other Federal rules.
There are no available alternatives to the proposed rule to accomplish the desired objective of the statute. However, the impact on small entities will be beneficial, as it will relieve them of the requirement to provide certified cost or pricing data when the acquisition is less than $2 million. Instead, they may submit data other than certified cost or pricing data which is estimated to save 40 hours of labor effort and related cost savings for each submission not requiring certification.
The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2018-005), in correspondence.
The Paperwork Reduction Act (44 U.S.C. Chapter 35) does apply. However, DoD, GSA, and NASA believe the changes proposed by this rule will result in a reduction to the paperwork burden approved under the following two OMB Control Numbers: 9000-0013, Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, and 9000-0129, Cost Accounting Standards Administration.
OMB Control Number 9000-0013 covers the paperwork burden for submitting cost or pricing data and certified cost or pricing data. With this proposed rule, the public reporting burden for this collection is expected to decrease from 9,759,813 hours to 9,160,160 as fewer contractors will be required to submit certified cost or pricing data.
Based on this proposed rule, the revised annual reporting burden has been estimated as follows:
As part of this proposed rulemaking, the FAR Council is soliciting comments from the public in order to:
(1) Evaluate whether the proposed revisions to this collection of information are necessary for the proper performance of the functions of the FAR Council, including whether the information will have practical utility;
(2) Evaluate the accuracy of the FAR Council's estimate of the burden of the revised collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate collection techniques.
Organizations and individuals desiring to submit comments on the information collection requirements associated with this rulemaking should submit comments not later than December 2, 2019 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB). The copy to GSA can be submitted by either of the following methods:
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OMB Control Number 9000-0129 requires contractors performing CAS-covered contracts to submit notifications and descriptions of certain cost accounting practice changes, including revisions to their Disclosure Statements, if applicable. With this proposed rule, the public reporting burden for this collection is expected to decrease from 474,075 to 314,475 hours as fewer contracts will be over the threshold for CAS applicability, which is the same as the threshold for obtaining certified cost or pricing data. A request for public comment on a revision and extension of OMB Control Number 9000-0129 was published on August 2, 2019.
Government procurement.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 14, 15, 30, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(c)(1) When contracting by sealed bidding, the contracting officer shall—
(i) Insert the clause at 52.214-28, Subcontractor Certified Cost or Pricing Data—Modifications—Sealed Bidding, in solicitations and contracts if the contract amount is expected to exceed the threshold for submission of certified cost or pricing data at 15.403-4(a)(1); or
(ii) Upon request of a contractor in connection with a prime contract entered into before July 1, 2018, the contracting officer shall modify the contract without requiring consideration to replace clause 52.214-28, Subcontractor Certified Cost or Pricing Data—Modifications—Sealed Bidding, with its Alternate I.
The revised and added text reads as follows:
(a)(1) * * * The threshold for obtaining certified cost or pricing data is $750,000 for prime contracts awarded before July 1, 2018, and $2 million for
(iii) * * * Price adjustment amounts must consider both increases and decreases (
(3) Upon the request of a contractor that was required to submit certified cost or pricing data in connection with a prime contract entered into before July 1, 2018, the contracting officer shall modify the contract, without requiring consideration, to reflect a $2 million threshold for obtaining certified cost or pricing data on subcontracts entered on and after July 1, 2018. See 15.408.
(d)
(1) Insert the clause at 52.215-12, Subcontractor Certified Cost or Pricing Data, in solicitations and contracts when the clause prescribed in paragraph (b) of this section is included; or
(2) Upon the request of a contractor that was required to submit certified cost or pricing data in connection with a prime contract entered into before July 1, 2018, the contracting officer shall modify the contract without requiring consideration, to replace clause 52.215-12, Subcontractor Certified Cost or Pricing Data, with its Alternate I.
(e)
(1) Insert the clause at 52.215-13, Subcontractor Certified Cost or Pricing Data—Modifications, in solicitations and contracts when the clause prescribed in paragraph (c) of this section is included; or
(2) Upon the request of a contractor that was required to submit certified cost or pricing data in connection with a prime contract entered into before July 1, 2018, the contracting officer shall modify the contract without requiring consideration, to replace clause 52.215-13, Subcontractor Certified Cost or Pricing Data—Modifications, with its Alternate I.
The revised text reads as follows:
(b) Unless an exception under FAR 15.403-1(b) applies, the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), as part of the subcontractor's proposal in accordance with FAR 15.408, Table 15-2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price)—
(1) Before modifying any subcontract that was awarded prior to July 1, 2018, involving a pricing adjustment expected to exceed $750,000; or
(2) Before awarding any subcontract expected to exceed $2 million on or after July 1, 2018, or modifying any subcontract that was awarded on or after July 1, 2018, involving a pricing adjustment expected to exceed $2 million.
The revised text reads as follows:
(a) Unless an exception under FAR 15.403-1 applies, the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15-2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price)—
(1) Before modifying any subcontract that was awarded prior to July 1, 2018, involving a pricing adjustment expected to exceed $750,000; or
(2) Before awarding any subcontract expected to exceed $2 million on or after July 1, 2018, or modifying any subcontract that was awarded on or after July 1, 2018, involving a pricing adjustment expected to exceed $2 million.
The revised text reads as follows:
(a) The requirements of paragraphs (b) and (c) of this clause shall—
(1) Become operative only for any modification to this contract involving aggregate increases and/or decreases in costs, plus applicable profits, expected to exceed the threshold for submission of certified cost or pricing data at FAR 15.403-4(a)(1); and
(2) Be limited to such modifications.
(b) Unless an exception under FAR 15.403-1 applies, the Contractor shall require the subcontractor to submit certified cost or pricing data (actually or by specific identification in writing), in accordance with FAR 15.408, Table 15-2 (to include any information reasonably required to explain the subcontractor's estimating process such as the judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data, and the nature and amount of any contingencies included in the price)—
(1) Before modifying any subcontract that was awarded prior to July 1, 2018, involving a pricing adjustment expected to exceed $750,000; or
(2) Before modifying any subcontract that was awarded on or after July 1, 2018, involving a pricing adjustment expected to exceed $2 million.
(d) The Contractor shall insert the substance of this clause, including this paragraph (d), in each subcontract that exceeds $2 million.
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
The revision reads as follows:
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of proposed rulemaking.
FMCSA proposes to amend its Hazardous Materials Safety Permits regulations to incorporate by reference the updated Commercial Vehicle Safety Alliance (CVSA) handbook. The Out-of-Service Criteria provide enforcement personnel nationwide, including FMCSA's State partners, with uniform enforcement tolerances for roadside inspections. Currently, the regulations reference the April 1, 2018, edition of the handbook. Through this document, FMCSA proposes to incorporate by reference the April 1, 2019, edition.
Comments on this document must be received on or before November 1, 2019.
You may submit comments identified by Docket Number FMCSA-2019-0068 using any of the following methods:
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To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
Mr. Michael Huntley, Chief, Vehicle and Roadside Operations Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 by telephone at (202) 366-9209 or by email at
This notice of proposed rulemaking (NPRM) is organized as follows:
If you submit a comment, please include the docket number for this NPRM (Docket No. FMCSA-2019-0068), indicate the specific section of this document to which each comment applies and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Any comments FMCSA receives which are not specifically designated as CBI will be placed in the public docket for this rulemaking.
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance notice of proposed rulemaking (ANPRM) if a proposed rule is likely to lead to the promulgation of a major rule, unless the Agency either develops the proposed rule through a negotiated rulemaking process or finds good cause that an ANPRM is impracticable, unnecessary, or contrary to the public interest. To be a major rule, a rule must result in or be likely to result in: (1) “an annual effect on the economy of $100,000,000 or more;” (2) “a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions;” or (3) “significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.” 5 U.S.C. 804(2). This proposed rule does not meet the criteria of a major rule because it simply incorporates by reference updates to the 2018 CVSA handbook edition made on April 1, 2019, which, as described below, are largely editorial and provide clarity and guidance to inspectors and motor carriers transporting transuranics. Therefore, this proposed rule is not likely to lead to the promulgation of a major rule and does not require an ANPRM.
This rulemaking proposes to update an incorporation by reference found at 49 CFR 385.4 and referenced at 49 CFR 385.415(b). The provision at § 385.4(b) currently references the April 1, 2018, edition of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” The Out-of-Service Criteria, while not regulations, provide enforcement personnel nationwide, including FMCSA's State partners, with uniform enforcement tolerances for roadside inspections. In this rulemaking, FMCSA proposes to incorporate by reference the April 1, 2019 edition of the handbook.
Thirteen (13) updates distinguish the April 1, 2019, handbook edition from the 2018 edition. The incorporation by reference of the 2019 edition does not impose new regulatory requirements.
Congress has enacted several statutory provisions to ensure the safe transportation of hazardous materials in interstate commerce. Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to inspections of motor vehicles carrying certain hazardous material, and 49 U.S.C. 5109, relating to motor carrier safety permits, the Secretary of Transportation is required to promulgate regulations as part of a comprehensive safety program on hazardous materials safety permits. The FMCSA Administrator has been delegated authority under 49 CFR 1.87(d)(2) to carry out the rulemaking functions vested in the Secretary of Transportation. Consistent with that authority, FMCSA has promulgated
In 1986, the U.S. Department of Energy (DOE) and CVSA entered into a cooperative agreement to develop a higher level of inspection procedures, out-of-service conditions and/or criteria, an inspection decal, and a training and certification program for inspectors to conduct inspections on shipments of transuranic waste and highway route controlled quantities of radioactive material. CVSA developed the North American Standard Level VI Inspection Program for Transuranic Waste and Highway Route Controlled Quantities of Radioactive Material. This inspection program for select radiological shipments includes inspection procedures, enhancements to the North American Standard Level I Inspection, radiological surveys, CVSA Level VI decal requirements, and the “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” As of January 1, 2005, all vehicles and carriers transporting highway route controlled quantities of radioactive material are regulated by the U.S. Department of Transportation. All highway route controlled quantities of radioactive material must pass the North American Standard Level VI Inspection prior to the shipment being allowed to travel in the U.S. All highway route controlled quantities of radioactive material shipments entering the U.S. must also pass the North American Standard Level VI Inspection either at the shipment's point of origin or when the shipment enters the U.S.
Section 385.415 of title 49, Code of Federal Regulations, prescribes operational requirements for motor carriers transporting hazardous materials for which a hazardous materials safety permit is required. Section 385.415(b)(1) requires that motor carriers ensure a pre-trip inspection is performed on each motor vehicle to be used to transport a highway route controlled quantity of a Class 7 (radioactive) material, in accordance with the requirements of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.”
According to 2012-2017 data from FMCSA's Motor Carrier Management Information System (MCMIS), approximately 3.5 million Level I—Level VI roadside inspections were performed annually. Nearly 97 percent of these were Level I,
Section 385.4(b)(1), as amended on July 8, 2019, references the April 1, 2018, edition of the CVSA handbook. This rule proposes to amend § 385.4(b)(1) by replacing the reference to the April 1, 2018, edition date with a reference to the new edition date of April 1, 2019.
The changes made in the 2019 edition of the handbook are outlined below. It is necessary to update the materials incorporated by reference to ensure motor carriers and enforcement officials have convenient access to the correctly identified inspection criteria referenced in the rules. Amending § 385.4(b), ensures that the publication is available for interested parties to view at the FMCSA's Washington, DC office and that the publication may be purchased from the CVSA's website address, mail address, and phone.
The 2019 edition identifies (1) driver-related violations of the FMCSRs that are so severe as to warrant placing the CMV driver out of service, (2) vehicle equipment-related violations of the FMCSRs that are so severe as to warrant placing the CMV out of service, and (3) unsafe conditions in the transportation of hazardous materials. The purpose of the publication is to provide inspection criteria for Federal and State motor carrier safety enforcement personnel to promote uniform and consistent inspection procedures of CMVs operated in commerce.
Thirteen changes to the 2019 edition of the CVSA handbook distinguish it from the April 1, 2018 edition. The first change amended Part I, Item 4(a) to clarify that a driver operating a CMV without complying with the requirements indicated on a Skill Performance Evaluation (SPE) Certificate shall be declared out of service. Currently, the Out-of-Service Criteria state that a driver will be placed out of service for “No skill performance evaluation in possession, when required.” The CVSA Driver-Traffic Enforcement Committee agreed that operating a CMV without complying with the requirements indicated on the SPE (
The second change amended the Out-of-Service Criteria Part II Policy Statement to address a discrepancy between language in CVSA Operational Policy 5 and the Out-of-Service Criteria Part II Policy Statement regarding removing or replacing a CVSA decal. Operational Policy 5 states that any expired CVSA decal shall be removed before a new CVSA decal is affixed. However, prior to the amendment, the Policy Statement in Part II of the Out-of-Service Criteria stated that “a current CVSA decal shall be affixed and no other CVSA decals shall be visible.” As such, the language in the Out-of-Service Criteria allowed an existing decal to be covered up rather than removed, while
The third change amended Part II, Item 1(g)(2) to clarify that a vehicle should be placed out of service if any rotor (disc) has a crack in length of more than 75 percent of the friction surface and passes completely through a structural support connecting the rotor friction surfaces. The CVSA Vehicle Committee received information from a Society of Engineers workgroup indicating that a collapse of the rotor is imminent if there is a crack through the vents, and the vehicle should be placed out of service. Part II, Item 1(g)(2) was amended to clarify that a vehicle should be placed out of service if any rotor (disc) has “a crack in length of more than 75 percent of the friction surface and passes completely through the rotor to the center vent from either side, or completely through a solid rotor, or completely through a structural support connecting the rotor friction surfaces.” A picture was added to clearly outline the condition of the rotor. FMCSA records indicate that no out-of-service violations have been issued regarding brake drums and rotors (discs) as a result of a Level VI inspection in the past 3 years, demonstrating that motor carriers transporting transuranics and highway route controlled quantities of radioactive materials ensure that this component is well maintained and in safe and proper operating condition at all times. The changes are intended to ensure clarity in the presentation of the out-of-service conditions and are not expected to affect the number of out-of-service violations cited during Level VI inspections.
The fourth change amended the Cargo Securement section of the Out-of-Service Criteria (Part II, Item 2) to add headings to subparagraphs (a)-(f), consistent with the other sections of the Out-of-Service Criteria. The new headings are intended to help with the uniformity of content, as well as to make it easier to distinguish between the different sections of the Out-of-Service Criteria. This amendment is editorial in nature and will not have any effect on the number of out-of-service violations cited during Level VI inspections.
The fifth change amended the Out-of-Service Criteria Tiedown Defect Table by adding language to address a new type of tiedown used in cargo securement applications. Doleco USA has developed a new cargo and equipment securement tiedown assembly comprised of synthetic chain links of Ultra High Molecular Weight Poly Ethylene (UHMWPE) Dyneema® webbing with specialized hooks and binders. The high-performance webbing is as strong as steel chain link but weighs up to 85 percent less. Due to the unique nature of its synthetic links, the manufacturer also provides product specific hooks/fittings for securing the tiedown ends and a specialized load tensioner for tightening. CVSA developed an Inspection Bulletin outlining the characteristics and use of the Doleco USA textile link system. The Out-of-Service Criteria Tiedown Defect Table was amended, consistent with the information provided in the CVSA Inspection Bulletin, to ensure that an inspector can adequately determine if the tiedown is defective once it is in use. Because of the sensitive nature of the cargo being transported, motor carriers transporting transuranics and highway route controlled quantities of radioactive materials are especially diligent regarding use of tiedowns that do not have any defects, as evidenced by the lack of any out-of-service violations cited for defective tiedowns during inspections conducted between 2012-2017. As such, this amendment is not expected to have any effect on the number of out-of-service violations cited during Level VI inspections.
The sixth change amended Part II, Item 4(b)(3) to clarify that any broken bearing strap on a universal joint of a driveline/driveshaft would constitute the same imminent hazard as a missing, broken, or loose retainer bolt, and a vehicle with this condition should be placed out of service. Part II, Item 4(b)(3) was amended to read “Any missing, broken or loose universal joint bearing cap bolt, bearing strap or retainer bolt,” and a descriptive label was added to the current picture of a universal joint in the Out-of-Service Criteria to help identify and clarify a bearing strap. FMCSA records indicate that no out-of-service violations have been issued regarding universal joints as a result of a Level VI inspection in the past 3 years, demonstrating that motor carriers transporting transuranics and highway route controlled quantities of radioactive materials ensure that this component is well maintained and in safe and proper operating condition at all times. The changes are intended to ensure clarity in the presentation of the out-of-service conditions and are not expected to affect the number of out-of-service violations cited during Level VI inspections.
The seventh change amended Part II of the Out-of-Service Criteria to add a new section regarding temporary driver seats. The CVSA Vehicle Committee approved the addition of a new out of service condition for vehicles using any temporary seating for the driver, as opposed to a permanent seat that is secured to the vehicle in a workmanlike manner. Temporary seating includes, but is not limited to, a milk crate, lawn chair, patio chair, folding chair, plastic step-stool, or a cooler. The Out-of-Service Criteria were amended to include a new item, Part II, Item 4. DRIVER'S SEAT, a. Temporary Seating, to read “Any vehicle that has temporary seating for the driver.”
The eighth change amended the Exhaust Systems section of the Out-of-Service Criteria (Part II, Item 5) to add headings to subparagraphs (a)-(d), consistent with the other sections of the Out-of-Service Criteria. The new headings are intended to help with the uniformity of content, as well as to make it easier to distinguish between the different sections of the Out-of-Service Criteria. This amendment is editorial in nature and will not have any effect on the number of out-of-service violations cited during Level VI inspections.
The ninth change amended Part II, Item 6 to include subsection (5) in the note that was already contained in the Out-of-Service Criteria. The CVSA Passenger Carrier Committee, in consultation with manufacturers,
The tenth change amended Part II, Item 9 to add language to address non-manufactured holes in the drag link of the steering system. Following a recommendation from industry partners, the CVSA Vehicle Committee determined that when a drag link is sufficiently worn to cause a non-manufactured hole, the link could buckle and lead to the loss of steering control. Based on the above, if a vehicle is found to have a non-manufactured hole in a drag link, the vehicle should be placed out of service, and the Out-of-Service Criteria were amended to add a new subparagraph (3) to Part II, Item 9(h) to read “When a drag link is so worn to cause a non-manufactured hole.” FMCSA records indicate that no out-of-service violations have been issued regarding steering systems as a result of a Level VI inspection in the past 3 years, demonstrating that motor carriers transporting transuranics and highway route controlled quantities of radioactive materials ensure that this component is well maintained and in safe and proper operating condition at all times. The changes are intended to ensure clarity in the presentation of the out-of-service conditions and are not expected to affect the number of out-of-service violations cited during Level VI inspections.
The eleventh change amended the title of Part II, Item 15, applicable to buses, motorcoaches, passenger vans, or other passenger-carrying vehicles, to clarify that the seating requirements in subparagraph (c) of that item apply to temporary and aisle seats only. As this change applies only to passenger-carrying vehicles, it will not have any effect on the number of out-of-service violations cited during Level VI inspections, which are applicable to carriers transporting transuranics and highway route controlled quantities of radioactive materials.
The twelfth change amended Part III, Items (1)-(10) to make the formatting of this section consistent with the remainder of the Out-of-Service Criteria, and to remove redundant language related to hazardous and dangerous materials inspection standards. This amendment is editorial in nature and will not have any effect on the number of out-of-service violations cited during Level VI inspections.
The thirteenth change amended the North American Standard Out-of-Service Criteria and Level VI Inspection Procedures to add a note to Item 30, Trupact II Package Tiedown Assemblies. The CVSA Level VI Inspection Program Committee added a note to address empty packages that may be transported with loaded packages during a Level VI inspection, noting that an empty package (TRUPACT II/HALFPACT) shall be subject to the same tiedown requirements as those applicable to a loaded package when transported and inspected during a Level VI inspection. FMCSA records indicate that no out-of-service violations have been issued regarding securement of packages as a result of a Level VI inspection in the past 3 years, demonstrating that motor carriers transporting transuranics and highway route controlled quantities of radioactive materials ensure that packages are properly secured at all times. The changes are intended to ensure clarity in the presentation of the out-of-service conditions, and are not expected to affect the number of out-of-service violations cited during Level VI inspections.
The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries in which they operate, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences among nations.
The CVSA is an organization representing Federal, State and Provincial motor carrier safety enforcement agencies in the United States, Canada and Mexico. The Out-of-Service Criteria provide uniform enforcement tolerances for roadside inspections conducted in all three countries.
Section 385.4(b), as amended on July 8, 2019, references the April 1, 2018, edition of the CVSA handbook. This proposed rule would replace the reference to the April 1, 2018, edition date with a reference to the new edition date of April 1, 2019.
FMCSA has determined that this action is not a significant regulatory action under section 3(f) of E.O. 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). The Office of Management and Budget (OMB) did not, therefore, review this document.
FMCSA also determined that the proposed rule does not warrant formal analysis of costs and benefits under DOT Policies and Procedures for Rulemaking [DOT Order 2100.6 dated December 20, 2018, section 11(e)(1)]. The proposed rule, if finalized, would update an incorporation by reference from the April 1, 2018, edition to the April 1, 2019, edition of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” FMCSA reviewed its MCMIS data on roadside inspections performed from 2012 to 2017 and determined that the handbook updates would not have any effect on the number of out-of-service violations cited during Level VI inspections. Therefore, the impact of a final rule would be de minimis.
E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs,” does not apply to this action because it is not a significant regulatory action, as defined in section 3(f) of E.O. 12866.
The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, 94 Stat. 864 (1980), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601
When an Agency issues a rulemaking proposal, the RFA requires the Agency to “prepare and make available an initial regulatory flexibility analysis” that will describe the impact of the proposed rule on small entities (5 U.S.C 603(a)). Section 605 of the RFA allows an agency to certify a rule, instead of preparing an analysis, if the proposed rule is not expected to impact a substantial number of small entities. The proposed rule is largely editorial and provides guidance to inspectors and motor carriers transporting transuranics in interstate commerce. Accordingly, I hereby certify that if promulgated, this proposed rule will not have a significant economic impact on a substantial number of small entities. FMCSA invites comments from anyone who believes there will be a significant impact on small entities from this action.
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this rule so that they can better evaluate its effects. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions, please consult the FMCSA point of contact, Michael Huntley, listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. The Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector, of $165 million (which is the value equivalent to $100,000,000 in 1995, adjusted for inflation to 2018 levels) or more in any one year. This proposed rule will not result in such an expenditure.
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
FMCSA analyzed this proposed rule and determined that it does not have implications for federalism.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules to include an evaluation of their environmental health and safety effects on children, if the agency has reason to believe that the rule may disproportionately affect children. The Agency determined this proposed rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could pose an environmental or safety risk that could affect children disproportionately.
FMCSA reviewed this proposed rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.
Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment of a regulation that will affect the privacy of individuals. This proposed rule does not require the collection of personally identifiable information or affect the privacy of individuals.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this proposed rule.
FMCSA has analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects.
This proposed rule does not have Tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (
FMCSA analyzed this rule consistent with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Administrative practice and procedure, Highway safety, Incorporation by reference, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, FMCSA proposes to amend 49 CFR chapter III, part 385, as set forth below:
49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113 13901-13905, 13908, 31135, 31136, 31144, 31148, and 31502; Sec. 113(a), Pub. L. 103-311, 108 Stat. 1673, 1676; Sec. 408, Pub. L. 104-88, 109 Stat. 803, 958; Sec. 350 of Pub. L. 107-87, 115 Stat. 833, 864; and 49 CFR 1.87.
(b) * * *
(1) “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403,” April 1, 2019, incorporation by reference approved for § 385.415(b).
Issued under authority delegated in 49 CFR 1.87 on:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement management measures described in Amendments 50A, 50B, 50C, 50D, 50E, and 50F to the Fishery Management Plan for Reef Fish Resources in the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council)(Amendments 50A-F). This proposed rule would delegate authority to Louisiana, Mississippi, Alabama, Florida, and Texas (Gulf states), to establish specific management measures for the harvest of red snapper in Federal waters in the Gulf of Mexico (Gulf) by the private angling component of the recreational sector. The purposes of this proposed rule and Amendments 50A-F are to increase fishing opportunities and economic benefits by allowing each Gulf state to establish specific management measures for the recreational harvest of red snapper in Federal waters by private anglers landing in that state.
Written comments must be received on or before November 1, 2019.
You may submit comments on this proposed rule identified by “NOAA-NMFS-2017-0122” by either of the following methods:
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Electronic copies of Amendments 50A-F may be obtained from the website:
Lauren Waters, NMFS Southeast Regional Office, telephone: 727-824-5305; email:
NMFS and the Council manage the Gulf reef fish fishery, which includes red snapper, under the FMP. The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The red snapper stock annual catch limit (ACL) is divided into commercial (51 percent) and recreational (49 percent) sector allocations. In 2015, though Amendment 40 to the FMP, the recreational sector was separated into a private angling component and a Federal charter vessel and headboat (for-hire) component until 2022 (80 FR 22422, April 22, 2015). Within the recreational sector, the recreational ACL
From 1996 through 2014, the recreational fishing season for red snapper in Gulf Federal waters became progressively shorter, and increased catch rates and inconsistent (longer) Gulf state water recreational fishing seasons contributed to recreational harvest overages. Recreational fishermen throughout the Gulf have requested more flexibility from the Council and NMFS in recreational red snapper management to provide greater socio-economic benefits to their local areas.
In 2017, the Council began developing Amendments 50A-50F to establish state management programs for the harvest of red snapper in the Gulf by the recreational sector. State management refers to allowing a state to set some regulations applicable to anglers landing red snapper in that state (
Management measures under a state's management program would have to achieve the same conservation goals as the current Federal management measures (
This proposed rule would delegate authority to each of the Gulf states to establish specific management measures applicable to private anglers in Gulf Federal waters who are landing red snapper in that state. This rule would also allow Texas, Alabama, and Florida to request that NMFS close areas of Federal waters to the harvest and possession of red snapper by private anglers, consistent with the analysis provided in Amendment 50A.
Currently, the Council and NMFS establish all management measures for both the Federal private angling and for-hire components in Gulf Federal waters. This proposed rule would delegate to each state the authority to establish specific management measures applicable to the private angling component only. The Council and NMFS would continue to specify all management measures applicable to the Federal for-hire component. The provision ending sector separation after the 2022 fishing year would be removed, and separate ACLs would continue to be set for each recreational component indefinitely.
NMFS notes that while Amendments 50A-F and this proposed rule apply to the recreational red snapper private angling component, a vessel with only state-issued for-hire permits, that fishes under a state's private angling component ACL, may not fish in Federal waters.
Currently, each Gulf state decides when to open and close their respective state waters to fishing for reef fish. These state water recreational reef fish seasons may not be consistent with the fishing seasons in Federal waters. In state waters, the states establish other management measures, such as recreational bag limits and size limits, while the Council has the responsibility for reef fish management measures applicable in Federal waters. This proposed rule would delegate some management authority to a Gulf state to regulate recreational harvest of red snapper in Federal waters by private anglers landing in that state. Each state would be required to establish the private angling season structure for harvest of its assigned portion of the ACL, monitor landings, and prohibit further landings of red snapper when the state-specific component ACL is reached or projected to be reached. Each state would also be required to specify a bag limit and a minimum size limit within the range of 14 to 18 inches (35.6 cm to 45.7 cm), TL. In combination, these measures must be expected to maintain harvest levels within the state's ACL. A state could also establish a maximum size limit.
Unless an area of Federal waters is closed to the harvest and possession of red snapper, NMFS expects that enforcement would primarily be conducted in state waters and dockside. However, under the delegation, private anglers would be required to comply with the fishing license or permit requirements of the state in which they intend to land the fish and may possess red snapper in Federal waters only if in compliance with that state's season, bag limit, and minimum size limit.
If NMFS determines that a state's red snapper private angling-component regulations are inconsistent with the FMP and the state fails to correct the inconsistency after notice and an opportunity to do so, or a state does not specify the required management measures, then NMFS would suspend that state's delegation and publish a notice in the
Currently, the red snapper private angling component ACL is managed as a single unit for all of the Gulf states. This proposed rule would apportion the private angling component ACL to each state. The allocation would be based on the allocations requested by each state in its EFP application, which totaled 96.22 percent of the overall component ACL. The remaining 3.78 percent would be apportioned between Florida and
If NMFS suspends one or more state's delegation, NMFS would project the private angling season in Federal waters off the applicable states based on the remaining aggregate portion of the ACL reduced by the established 20 percent buffer that is used to determine the Federal annual catch target. Anglers who fish in Federal waters off a state without an active delegation of authority would fish under the default Federal regulations (season, size limit, and bag limit) as described previously.
The proposed rule would establish post-season accountability measures (AM). An overage adjustment, or payback provision, is an AM that reduces the following year's ACL by some specified amount, usually the amount the ACL was exceeded. The current recreational red snapper post-season AM applies when the stock is classified as overfished and an overage of the total recreational sector's ACL occurs. This AM requires NMFS to reduce the recreational sector ACL and ACT, and applicable component ACL and ACT, in the year following an overage of the total recreational ACL by the full amount of the overage, unless the best scientific information available determines that a greater, lesser, or no overage adjustment is necessary. This proposed rule would establish post-season ACL overage adjustments for states with an active delegation, regardless of stock status. If the landings of a state exceed that state's ACL, then in the following fishing year that state's ACL would be reduced by the amount of the ACL overage in the prior fishing year, unless the best scientific information available determines that a greater, lesser, or no overage adjustment is necessary. The total recreational ACL and the total private angling component ACL would also be reduced.
In Amendments 50B-F, the Council expressed its intent to allow for carryover of a state's unused portion of its ACL to the following fishing year if permitted under a separate amendment to the FMP that the Council was developing to add a carryover provision to the Acceptable Biological Catch Control Rule. In June 2019, the Council postponed work on that amendment. Therefore, NMFS is not proposing to implement this provision at this time.
This proposed rule would allow a Gulf state, consistent with the terms of an active delegation, to request that NMFS close all, or an area of, Federal waters to the harvest and possession of red snapper by private anglers. The state would request the closure by letter to NMFS, providing dates and geographic coordinates for the closure. If the request is within the scope of the analysis in Amendment 50A, NMFS would publish a notice in the
Based on the analysis in Amendment 50A, Texas would be able to request a closure of all Federal waters off the state to allow a year-round fishing season in state waters and a limited season in Federal waters. Florida would be able to request a closure of Federal waters off the state seaward of the 20-fathom (36.6-m) depth contour, or seaward of the 35-fathom (64.0-m) depth contour, for the duration of Florida's open private angling component season. Alabama would be able to request a closure of Federal waters off their state seaward of the 20-fathom (36.6-m) depth contour, or seaward of the 35-fathom (64.0-m) depth contour, for the duration of Alabama's open private angling component season. Florida and Alabama want the ability to close deeper waters to potentially extend their seasons by decreasing the average size of fish landed. These areas were chosen because an approximation for the 20-fathom depth contour is currently defined in 50 CFR 622.34(d) for the seasonal shallow-water grouper closure, and an approximation of the 35-fathom depth contour is partially defined in 50 CFR 622.35(b) for the seasonal eastern Gulf longline closure. The coordinates for any closure off Texas, Florida, or Alabama are provided in Appendix H of Amendment 50A and would be included in the
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this proposed rule and its purpose and need are contained in the
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows.
The rule concerns state management of recreational fishing for red snapper from private/leased vessels in the Gulf exclusive economic zone (EEZ). The only entities that would be directly affected by the rule are the Gulf states: Alabama, Florida, Louisiana, Mississippi, and Texas. States are not small entities. Anglers (recreational fishers) who fish for red snapper in the Gulf EEZ would be indirectly affected; however, anglers are not considered small entities as that term is defined in 5 U.S.C. 601(6) and the RFA does not consider indirect impacts. For-hire fishing businesses with vessels that are permitted to take anglers into the Gulf EEZ to fish for red snapper would not be affected. Hence, this rule would not have a significant economic impact on a substantial number of small entities and an initial regulatory flexibility analysis is not required and none has been prepared.
Fisheries, Fishing, Gulf, Recreational, Red snapper.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
16 U.S.C. 1801
(d) * * *
(f)
(a)
(1)
(i)
(ii)
(A)
(B)
(C)
(D)
(E)
(2)
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(c)
(b)
(a) * * *
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(3)
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(C)
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(i) * * * See § 622.23(a)(1) regarding the fishing season for the private angling component for states with an active delegation.
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(A) [Reserved]
(B)
(C)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendment 119 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) and Amendment 107 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP). This proposed rule would require that the operator of a federally permitted catcher vessel using hook-and-line, pot, or jig gear in the Bering Sea and Aleutian Islands and Gulf of Alaska retain and land all rockfish (
Submit comments on or before November 1, 2019.
Submit your comments, identified by FDMS Docket Number NOAA-NMFS-2019-0068, by either of the following methods:
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Electronic copies of Amendment 119 to the BSAI FMP, Amendment 107 to the GOA FMP (collectively Amendments 119/107), the Regulatory Impact Review (RIR; referred to as the Analysis), and the National Environmental Policy Act Categorical Exclusion evaluation document prepared for this action may be obtained from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted by mail to NMFS at the above address; and by email to
Josh Keaton (907) 586-7228.
NMFS manages the groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) and Gulf of Alaska (GOA) under the BSAI FMP and GOA FMP. The North Pacific Fishery Management Council (Council) prepared the BSAI FMP and GOA FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
This proposed rule would implement Amendments 119/107. The Council submitted Amendments 119/107 for review by the Secretary of Commerce (Secretary), and a Notice of Availability (NOA) of Amendments 119/107 was published in the
In April 2019, the Council adopted Amendments 119/107. If approved by the Secretary, Amendments 119/107 would require that catcher vessels (CVs) using hook-and-line, pot, or jig gear in groundfish and halibut fisheries of the Federal exclusive economic zone (EEZ) retain and land all rockfish. This proposed rule would also establish a means to limit the amount of rockfish that can enter commerce through barter, sale, or trade through the implementation of a maximum commerce allowance. Additionally, this proposed rule would require full retention of rockfish by CVs using hook-and-line, pot, or jig gear even if the rockfish species is prohibited for directed fishing or on prohibited species status (as defined in § 679.20(d)(2)). When on prohibited species status, these retained rockfish would be prohibited from entering commerce, except as fish meal.
In this proposed rule “rockfish” is defined as any species of the genera
The following sections of this preamble provide a brief description of (1) rockfish management for CVs using hook-and-line, pot, or jig gear; (2) the need for the action; (3) the elements of this proposed rule; and (4) the regulatory changes made by this proposed rule.
Rockfish are commercially important groundfish comprising 29 commonly caught species. Most of these species inhabit rocky areas in shallow to moderately deep waters that overlap with groundfish and halibut fisheries. Many rockfish species are sought for their commercial value. Except for thornyhead rockfish (
Many rockfish species are commonly caught as incidental catch by vessels directed fishing for other species using hook-and-line, pot, or jig gear. NMFS prohibits directed fishing for most rockfish species at the beginning of the year because the amount of the total allowable catch (TAC) for rockfish species or species groups do not support directed fishing. If a TAC is reached, NMFS prohibits retention of the species.
Since directed fishing by CVs using hook-and-line, pot, or jig gear is already prohibited for nearly all species of rockfish, NMFS limits retention as the primary tool to regulate rockfish catch. These retention limits are referred to as the maximum retainable amount (MRA). The MRA is the proportion or percentage of retained catch of a species prohibited for directed fishing (incidental catch species) to the retained catch of a species open for directed fishing (basis species). When NMFS prohibits directed fishing for a groundfish species, retention of the catch of that species is allowed up to an MRA based on percentages set forth in Table 10 and Table 11 to 50 CFR part 679. Section 679.20(d)(iii)(B) requires vessel operators to discard at sea any rockfish that exceeds the MRA. For the individual fishing quota (IFQ) halibut and IFQ sablefish fisheries, when IFQ halibut or IFQ sablefish is on board, discarding rockfish is prohibited unless rockfish are required to be discarded (§ 679.7(f)(8)). Rockfish must be discarded for two reasons: (1) When rockfish catch is in excess of an MRA; and (2) when a rockfish species is prohibited from being retained (in a prohibited species status) because the TAC for that species has been reached.
The MRA percentages were established to discourage vessel operators from targeting rockfish and other species while fishing for halibut or groundfish species open to directed fishing. However, in some fishing areas the natural incidental catch rate of rockfish may be much higher than the specified MRA, forcing vessel operators to discard rockfish that they cannot avoid catching. MRA calculations can be challenging for a vessel operator to compute correctly, since rates for different rockfish species vary depending on the target fishery and the management area in which a vessel is fishing. The inconsistency of MRA regulations between Federal and State of Alaska (State) fisheries, between different rockfish species, and different management areas makes it difficult for a vessel operator to ensure their compliance with retention and discard requirements.
Since almost no rockfish survive being caught and brought to the surface, for CVs using hook-and-line, pot, or jig gear, at-sea discards are estimated and then deducted from that species TAC. Because some species are infrequently caught, accurate estimation of catch for those species is difficult. This results in high variance in the estimates of at-sea discards on smaller CVs. High variance most commonly occurs on smaller CVs that deploy hook-and-line, pot, or jig gear. This high variance can result in less accurate estimates of total catch of rockfish species, and can result in more restrictive management measures.
Overall, this action would not affect the status of a rockfish stock in the BSAI or GOA. The acceptable biological catch and TAC for rockfish species would continue to be established through the annual harvest specifications process. The processes by which NMFS manages the catch of a rockfish species to stay within its TAC would not change under the alternatives considered for this action.
Hook-and-line gear, pot gear, and jig gear are commonly used in groundfish fisheries in the BSAI and GOA. Hook-and-line gear is a stationary, buoyed, and anchored line with hooks attached. Pot gear is a portable structure designed to capture and retain fish alive in the water. Jig gear is a single, non-buoyed, non-anchored line with hooks attached. CVs that operate in the BSAI and GOA use hook-and-line, pot, and jig gear to prosecute primarily Pacific cod, Pacific halibut, and sablefish. There is also some directed fishing for rockfish using hook-and-line and jig gear. Many other species are caught with hook-and-line, pot, or jig gear; however, most of these species are incidental to the four main target species.
CVs using hook-and-line, pot, or jig gear fish throughout the year. As discussed in Section 2.7.1.1 of the Analysis, approximately 200 CVs use hook-and-line, pot, or jig gear in the BSAI, and approximately 950 CVs use hook-and-line, pot, or jig gear in the GOA. Some CVs participate in all three main target fisheries, and some operate in both the BSAI and GOA.
Pacific cod fisheries using hook-and-line, pot, or jig gear mostly occur in January through March and September through December. Rockfish incidental catch in these fisheries is generally low, at less than one percent of total groundfish catch, in the BSAI, and approximately one percent of total groundfish catch in the GOA (see Section 2.7.1.3 of the Analysis).
IFQ Pacific halibut and sablefish fisheries occur from March through November. Rockfish incidental catch in the Pacific halibut fishery in the BSAI is approximately three percent of the total groundfish and halibut catch. Rockfish incidental catch in the Pacific halibut fishery of the GOA is approximately five percent of total groundfish and halibut catch. The IFQ sablefish fishery in the BSAI and GOA has a rockfish incidental catch rate of approximately 10 percent. These are average rates across the entire fleet and a broad geographic area. Depending on where a vessel operator is fishing, the rate can be higher or lower.
The Council recommended, and NMFS proposes, requiring full retention of all rockfish caught by CVs using hook-and-line, pot, or jig gear targeting groundfish and halibut in the GOA and BSAI for a number of reasons. These reasons include (1) improving the identification of rockfish species catch by vessels using electronic monitoring (EM); (2) providing more precise estimates of rockfish catch; (3) reducing waste and incentives to discard rockfish; (4) reducing overall enforcement burden; and (5) promoting more consistent management between State and Federal fisheries.
In 2018, NMFS developed regulations to allow small fixed gear CVs in partial observer coverage to opt into EM coverage for the calendar year rather than carrying an observer. The data collected from EM systems deployed on CVs is used to obtain catch and discard information from these CVs. NMFS approved 168 CVs for EM coverage for 2019.
EM studies focused on the accuracy of species identification have shown that in most cases it is possible to identify fish to the species or species group required for management. However, some rockfish species are difficult to identify and continue to be challenging for EM to identify. These rockfish species include shortraker rockfish (
Under § 679.5(e), all groundfish and halibut that is landed (
Most rockfish species have specialized habitat needs, which means they are more sparsely distributed than most other groundfish species. As a result, at-sea discard rates can be variable, which results in less precise estimates of total rockfish removals (see Section 2.7.1.3 of the Analysis). Requiring the complete retention of all rockfish caught by CVs using hook-and-line, pot, or jig gear would allow the total catch of rockfish to be sorted, weighed, and reported via eLandings instead of extrapolated from at-sea discard rates. Therefore, this proposed rule would likely result in much better information on the incidental catch of rockfish by CVs using hook-and-line, pot, or jig gear.
As discussed in Section 2.7.1.4 of the Analysis, more rockfish catch is retained than discarded. Since the majority of rockfish do not survive being caught, discards of rockfish increases waste. Many factors affect why a vessel operator discards rockfish. The most common reason for discards, inferred by available data, is regulatory discard. These discards occur when an MRA is exceeded during a fishing trip or if a rockfish species is on prohibited species status. Some vessel operators have expressed dissatisfaction with the current regulations requiring them to discard dead fish that could otherwise be used for human consumption. These concerns were consistently mentioned during public comment during the development of this proposed action.
The existing MRA regulations may result in vessel operators discarding rockfish to avoid enforcement actions resulting from MRA overages. Removing the MRA regulations associated with rockfish caught by CVs using hook-and-line, pot, or jig gear and requiring full retention could reduce waste.
This proposed rule would no longer require CVs using hook-and-line, pot, or jig gear to comply with MRA regulations for rockfish. This would likely reduce the number of enforcement cases associated with rockfish MRA violations, and therefore, allow the NMFS Office of Law Enforcement (NMFS OLE) to pursue other priorities. Overall, this proposed rule simplifies current regulations and promotes more consistency in the regulations. This alone is likely to increase compliance and reduce enforcement burden (see Section 2.7.2.11 of the Analysis).
Federal fisheries in the BSAI and GOA have many regulations that require vessel operators to retain certain species. Due to the broad geographic area in which fisheries occur in the BSAI and GOA, monitoring vessels while they are actively fishing presents logistical challenges. However, the use of at-sea observers, EM, vessel boarding, and monitoring of offloads can assist in monitoring compliance of full retention requirements.
Rockfish retention requirements for CVs using hook-and-line, pot, or jig gear differ between fisheries in Federal waters and State waters. Vessel operators that fish in both Federal waters and State waters are subject to two different sets of regulations concerning management of rockfish incidental catch. Sections 2.6.4 and 2.7.2.5 of the Analysis illustrates the complexity of rockfish retention requirements. A vessel operator may fish in multiple areas and have differing retention requirements in a single trip. This creates confusion that may result in unintentional non-compliance or unnecessary rockfish discards.
The State already has full retention requirements for all rockfish in some areas, which include parts of the Eastern GOA, Prince William Sound, and Cook Inlet. This proposed rule would establish Federal regulations that are very similar, although not identical, to existing State regulations on management of rockfish incidental catch in these management areas. Federal and State management inconsistencies may be eliminated, if the State mirrors Federal full retention requirements in all areas.
The Analysis for this proposed rule is based on the most recent and best scientific information available, consistent with National Standard 2 of the Magnuson-Stevens Act, recognizing that some information (such as operational costs) are unavailable (see Section 3.1 of the Analysis).
This proposed rule has two main provisions. The first provision would require the operator of a CV required to have a federal fishery permit using hook-and-line, pot, or jig gear to retain and land all rockfish that are caught while fishing for groundfish or halibut in the EEZ of the BSAI and GOA, even if a species of rockfish is on prohibited species status.
The second provision addresses the disposition of retained amounts of rockfish. There is a need to establish a limit or allowance on the sale of rockfish caught as incidental catch that both provides an incentive for vessel operators to retain all rockfish and avoids elevated rates of rockfish incidental catch because rockfish MRAs would not apply under the proposed full retention requirement. This proposed rule would implement a limit called the maximum commerce allowance (MCA). The MCA would be calculated at each rockfish landing, and would limit the amount of rockfish allowed to enter commerce. The MCA for rockfish would be calculated as a percentage of the total retained groundfish and halibut landed during each delivery. Section 2.7.2.4 of the Analysis discusses establishing an MCA in detail.
The selection of the appropriate MCA percentage has some trade-offs. Low MCA percentages prioritize the avoidance of rockfish while fishing, but increases the number of trips that may have retained rockfish that cannot be sold. This could affect a vessel operator's compliance with full rockfish retention. Higher MCA percentages could result in more retention compliance. However, higher MCA percentages could also result in increased rockfish catch as vessel operators could seek areas with higher rockfish incidental catch, or change fishing behavior to engage in top-off fishing. “Top-off fishing” occurs when a vessel operator deliberately targets a valuable species that is closed to directed fishing in an attempt to reach the full MRA of that species.
The Council and NMFS considered a range of MCA percentages, and this rule proposes an MCA of 15 percent. This percentage balances the concern that an MCA that is too restrictive could
Fish meal is considered a processed fish product that enters commerce. The Council recommended allowing rockfish in excess of the selected MCA to be processed into meal to address concerns raised by processors in communities such as Kodiak, Alaska. Vessel operators delivering fish to Kodiak and similar Alaska communities have limited options for discarding fish delivered to a processor that is unable to process retained rockfish or other species for human consumption. Allowing rockfish in excess of the MCA to be processed into meal is unlikely to provide any financial incentives to target rockfish, due to the low value of fish meal. Section 2.7.2.2 of the Analysis discusses fish meal and the impacts of full retention on processors in more detail.
This proposed rule would require full retention of rockfish even if NMFS prohibits retention of a rockfish species. When NMFS prohibits retention of a rockfish species, the MCA for that rockfish species would be zero percent. This is discussed in detail in Section 2.7.2.6 of the Analysis. The NMFS OLE expressed concern that there could be compliance issues if the Council did not recommend full retention when a rockfish species is on prohibited species status. The lack of a full retention requirement when a rockfish species is on prohibited species status could increase non-compliance of the retention limits by creating confusion and potential loopholes that would affect the ability to enforce the limits established under this proposed action. The primary goal of an action to prohibit retention is to remove financial incentives for vessel operators to continue to harvest a species. To remove some of the financial incentives that may result in top-off fishing when a rockfish species is placed on prohibited species status, the MCA for that species would be set to zero. This would remove financial incentives to harvest more rockfish than the true incidental catch and could result in CVs using hook-and-line, pot, or jig gear avoiding areas that have high incidental catch rates of those species.
Amounts of rockfish that are retained, but in excess of the MCA, could not be sold. However, this surplus rockfish could be used by vessel crew, donated, processed into fish meal, or discarded by processing plant personnel. The Council anticipates that most rockfish landed are likely to be processed; however, the decision to purchase, process, or discard rockfish is at the discretion of each individual processor. The Council also anticipates that most rockfish caught in excess of the MCA will be used in some way through personal use or charitable donations, thereby reducing waste and increasing the use of incidentally caught rockfish. Providing options such as retaining rockfish for personal use or donating it to charitable organizations would give vessel operators who dislike discarding dead fish an incentive for complying with the regulations associated with full retention of rockfish.
During the February 2019 Council meeting, public comments identified a concern about the potential for increased retention of yelloweye rockfish (
A vessel operator retains all rockfish during an IFQ halibut trip and delivers 1,000 pounds of halibut and 200 pounds of various rockfish species, of which 50 pounds is yelloweye rockfish. The MCA for rockfish is 150 pounds (1,000 * 0.15). The MCA for yelloweye rockfish is 50 pounds (1,000 * 0.05). The vessel operator could sell all yelloweye rockfish and 100 pounds of other rockfish species. Fifty pounds of rockfish could not enter commerce but could be donated or used by vessel crew.
To assist in resolving inconsistencies in management between State and Federal fisheries in the SEO, the Council recommended that current full retention requirements for demersal shelf rockfish (DSR) in the SEO remain unchanged. In the SEO (one of seven area in the GOA), vessel operators would be required to retain all rockfish, however the MCA would be different in the SEO from other areas of the GOA. The MCA for DSR species in the SEO would be limited to 10 percent of the aggregate round weight of retained IFQ halibut and groundfish, excluding sablefish, and one percent of the aggregate round weight of retained sablefish. This is necessary to avoid inconsistency in management between Federal and State fisheries as discussed in Sections 2.6.5 and 2.6.6 of the Analysis.
The following provides a brief summary of the regulatory changes that would be made by this proposed rule. This proposed rule would—
• Revise § 679.5(c)(3)(iv)(A)(3) to clarify that CVs using hook-and-line, pot, or jig gear are not required to record MRAs for rockfish since MRAs do not apply in full retention requirements.
• Add § 679.7(a)(5) to prohibit discard of rockfish from CVs using hook-and-line, pot, or jig gear.
• Revise § 679.7(f)(8) to clarify that rockfish are not required to be discarded.
• Revise § 679.20(d)(1)(iii)(B) to clarify that rockfish are not required to be discarded when rockfish are closed to directed fishing.
• Revise § 679.20(d)(2) to clarify that rockfish are still required to be retained by CVs using hook-and-line, pot, or jig gear, even if a species is on prohibited species status.
• Revise § 679.20(j) to include the full retention requirement, description of the MCA, and requirements for disposal of rockfish in excess of the MCA.
• Revise Table 10 and Table 11 to 50 CFR part 679 by adding a footnote to the rockfish column referencing § 679.20(j).
Pursuant to Sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
An RIR was prepared to assess all costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see
This Initial Regulatory Flexibility Analysis (IRFA) was prepared for this action, as required by Section 603 of the Regulatory Flexibility Act (RFA) to describe the economic impact this proposed rule, if adopted, would have on small entities. The IRFA describes the action; the reasons why this action is proposed; the objectives and legal basis for this proposed rule; the number and description of directly regulated small entities to which this proposed rule would apply; the recordkeeping, reporting, and other compliance requirements of this proposed rule; and the relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule. The IRFA also describes significant alternatives to this proposed rule that would accomplish the stated objectives of the Magnuson-Stevens Act, and any other applicable statutes, and that would minimize any significant economic impact of this proposed rule on small entities. The description of the proposed action, its purpose, and the legal basis are explained in the preamble and are not repeated here.
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
NMFS estimates that the entities directly regulated by this proposed rule are CVs using hook-and-line, pot, or jig gear in the BSAI and GOA. The thresholds applied to determine if an entity or group of entities are “small” under the RFA depend on the industry classification for the entity or entities. Based on the 2016 fishing season, 169 CVs were active using hook-and-line, pot, or jig gear in the BSAI, and 949 CVs were active using hook-and-line, pot, or jig gear in the GOA. Of these CVs, 136 in the BSAI and 932 in the GOA are considered small entities.
Several aspects of this rule directly regulate small entities. Small entities would be required to comply with the requirements to retain rockfish. A full retention requirement for CVs using hook-and-line, pot, or jig gear could have operational implications for vessel operators. Since a CV using hook-and-line, pot, or jig gear would be required to retain all incidental catch of rockfish, this could reduce the CV's hold space, thereby displacing more valuable target species. Because this action would allow most of a CV's rockfish catch to enter commerce, the cost of requiring retention is estimated to be largely offset by the value of the rockfish. Therefore, the costs are expected to be minimal.
Section 2.7.2 of the Analysis describes the proposed requirements for requiring rockfish retention. The Council and NMFS determined that the benefits of the proposed revised regulations outweigh the costs of these additional requirements on the existing fleet. This proposed rule would meet the objectives of the action while minimizing adverse impacts on fishery participants.
This proposed rule would require full retention of all rockfish species by CVs using hook-and-line, pot, or jig gear in the BSAI and GOA. The management measures include full retention of rockfish even if the species is on prohibited species status, but these retained rockfish would be prohibited from entering commerce (
There are no significant alternatives to this proposed rule that would accomplish the objectives of requiring full retention of all rockfish species by CVs using hook-and-line, pot, or jig gear in the BSAI and GOA.
The proposed rule contains no new recordkeeping or recording requirements. As explained in the “Provide More Precise Estimates of Rockfish Catch” section of this proposed rule, landed fish must be reported under existing Federal and State regulations. A more detailed explanation of current recordkeeping and reporting requirements for CVs using hook-and-line, pot, or jig gear can be found at § 679.5. Therefore, this proposed rule would meet the objectives of the action while minimizing the reporting burden for fishery participants.
No duplication, overlap, or conflict between this proposed action and existing Federal rules has been identified.
This proposed rule references collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0515 (Alaska Interagency Electronic Reporting System (IERS)).
The response time includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
Alaska, Fisheries, Reporting and recordkeeping requirements.
For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:
16 U.S.C. 773
(c) * * *
(3) * * *
(iv) * * *
(A) * * *
(3)
(a) * * *
(5)
(i) For any person, to discard rockfish from a catcher vessel required to have a Federal fisheries permit that is fishing for groundfish or IFQ or CDQ halibut using hook-and-line, jig, or pot gear in the BSAI and GOA until that fish has been landed.
(ii) Exceed the maximum commerce allowance amount established under § 679.20(j).
(f) * * *
(8) * * *
(i) * * *
(A) [Reserved]
(ii) * * *
(A) [Reserved]
(d) * * *
(1) * * *
(iii) * * *
(B)
(2)
(j)
(2)
(i) A person may sell, barter, or trade a round weight equivalent amount of rockfish that is less than or equal to 15 percent of the aggregate round weight equivalent of IFQ halibut and groundfish species, other than rockfish, that are landed during the same fishing trip.
(ii) A person may sell, barter, or trade a round weight equivalent amount of yelloweye rockfish that is less than or equal to 5 percent of the aggregate round weight equivalent of IFQ halibut and groundfish species, other than rockfish, that are landed during the same fishing trip. The aggregate amount of all rockfish species sold, bartered, or traded cannot exceed the MCA established under paragraph (j)(2)(i) of this section.
(iii) Amounts of rockfish retained by catcher vessels under paragraphs (j)(2)(i) and (ii) of this section that are in excess of the limits specified in paragraphs (j)(2)(i) and (ii) of this section may be put to any use, including but not limited to personal consumption or donation, but must not enter commerce through sale, barter, or trade except as fish meal.
(3)
(i) A person may sell, barter, or trade a round weight equivalent amount of DSR that is less than or equal to 10 percent of the aggregate round weight equivalent of IFQ halibut and groundfish species, other than sablefish, that are landed during the same fishing trip. The aggregate amount of all rockfish species sold, bartered, or traded cannot exceed the MCA established under paragraph (j)(2)(i) of this section.
(ii) A person may sell, barter, or trade a round weight equivalent amount of DSR that is less than or equal to 1 percent of the aggregate round weight equivalent of IFQ sablefish that are landed during the same fishing trip. The aggregate amount of all rockfish species sold, bartered, or traded cannot exceed the MCA established under paragraph (j)(2)(i) of this section.
(iii) Amounts of DSR retained by catcher vessels under paragraph (j)(1) of this section that are in excess of the limits specified in paragraphs (j)(3)(i) and (ii) of this section may be put to any use, including but not limited to personal consumption or donation, but must not enter commerce through sale, barter, or trade except as fish meal.
(4)
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) continues to find that Banduoo Ltd. (Banduoo), Fujian Rongshu Industry Co., Ltd. (Fujian Rongshu), Roung Shu Industry Corporation (Roung Shu), and Xiamen Yi-He Textile Co., Ltd. (Xiamen Yi-He) made no shipments of subject merchandise during the period of review (POR) of September 1, 2017 through August 31, 2018.
Applicable October 2, 2019.
Brittany Bauer, 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) 482-3860.
On July 19, 2019, Commerce published the
Commerce conducted this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act).
The scope of this order covers narrow woven ribbons with woven selvedge, in any length, but with a width (measured at the narrowest span of the ribbon) less than or equal to 12 centimeters, composed of, in whole or in part, man-made fibers (whether artificial or synthetic, including but not limited to nylon, polyester, rayon, polypropylene, and polyethylene teraphthalate), metal threads and/or metalized yarns, or any combination thereof. Narrow woven ribbons subject to the order may:
• Also include natural or other non-man-made fibers;
• be of any color, style, pattern, or weave construction, including but not limited to single faced satin, double-faced satin, grosgrain, sheer, taffeta, twill, jacquard, or a combination of two or more colors, styles, patterns, and/or weave constructions;
• have been subjected to, or composed of materials that have been subjected to, various treatments, including but not limited to dyeing, printing, foil stamping, embossing, flocking, coating, and/or sizing;
• have embellishments, including but not limited to appliqué, fringes, embroidery, buttons, glitter, sequins, laminates, and/or adhesive backing;
• have wire and/or monofilament in, on, or along the longitudinal edges of the ribbon;
• have ends of any shape or dimension, including but not limited to straight ends that are perpendicular to the longitudinal edges of the ribbon, tapered ends, flared ends or shaped ends, and the ends of such woven ribbons may or may not be hemmed;
• have longitudinal edges that are straight or of any shape, and the longitudinal edges of such woven ribbon may or may not be parallel to each other;
• consist of such ribbons affixed to like ribbon and/or cut-edge woven ribbon, a configuration also known as an “ornamental trimming;”
• be wound on spools; attached to a card; hanked (
• be included within a kit or set such as when packaged with other products, including but not limited to gift bags, gift boxes and/or other types of ribbon.
Narrow woven ribbons subject to the order include all narrow woven fabrics, tapes, and labels that fall within this written description of the scope of this antidumping duty order.
Excluded from the scope of the order are the following:
(1) Formed bows composed of narrow woven ribbons with woven selvedge;
(2) “pull-bows” (
(3) narrow woven ribbons comprised at least 20 percent by weight of elastomeric yarn (
(4) narrow woven ribbons of a kind used for the manufacture of typewriter or printer ribbons;
(5) narrow woven labels and apparel tapes, cut-to-length or cut-to-shape, having a length (when measured across the longest edge-to-edge span) not exceeding eight centimeters;
(6) narrow woven ribbons with woven selvedge attached to and forming the handle of a gift bag;
(7) cut-edge narrow woven ribbons formed by cutting broad woven fabric into strips of ribbon, with or without treatments to prevent the longitudinal edges of the ribbon from fraying (such as by merrowing, lamination, sono-bonding, fusing, gumming or waxing), and with or without wire running lengthwise along the longitudinal edges of the ribbon;
(8) narrow woven ribbons comprised at least 85 percent by weight of threads having a denier of 225 or higher;
(9) narrow woven ribbons constructed from pile fabrics (
(10) narrow woven ribbon affixed (including by tying) as a decorative detail to non-subject merchandise, such as a gift bag, gift box, gift tin, greeting
(11) narrow woven ribbon that is (a) affixed to non-subject merchandise as a working component of such non-subject merchandise, such as where narrow woven ribbon comprises an apparel trimming, book marker, bag cinch, or part of an identity card holder, or (b) affixed (including by tying) to non-subject merchandise as a working component that holds or packages such non-subject merchandise or attaches packaging or labeling to such non-subject merchandise, such as a “belly band” around a pair of pajamas, a pair of socks or a blanket;
(12) narrow woven ribbon(s) comprising a belt attached to and imported with an item of wearing apparel, whether or not such belt is removable from such item of wearing apparel; and
(13) narrow woven ribbon(s) included with non-subject merchandise in kits, such as a holiday ornament craft kit or a scrapbook kit, in which the individual lengths of narrow woven ribbon(s) included in the kit are each no greater than eight inches, the aggregate amount of narrow woven ribbon(s) included in the kit does not exceed 48 linear inches, none of the narrow woven ribbon(s) included in the kit is on a spool, and the narrow woven ribbon(s) is only one of multiple items included in the kit.
The merchandise subject to this order is classifiable under the HTSUS statistical categories 5806.32.1020; 5806.32.1030; 5806.32.1050; and 5806.32.1060. Subject merchandise also may enter under subheadings 5806.31.00; 5806.32.20; 5806.39.20; 5806.39.30; 5808.90.00; 5810.91.00; 5810.99.90; 5903.90.10; 5903.90.25; 5907.00.60; and 5907.00.80 and under statistical categories 5806.32.1080; 5810.92.9080; 5903.90.3090; and 6307.90.9889. The HTSUS statistical categories and subheadings are provided for convenience and customs purposes; however, the written description of the merchandise covered by this order is dispositive.
In the
Commerce determined, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
Further, because we continue to find in these final results that Banduoo, Fujian Rongshu, Roung Shu, and Xiamen Yi-He had no shipments of subject merchandise during the POR, we will instruct CBP to liquidate any suspended entries that entered under their antidumping duty case numbers (
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2)(C) of the Act: (1) For merchandise exported by manufacturers or exporters not covered in this review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published from the most recently completed segment; (2) if the exporter is not a firm covered in this review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment for the manufacturer of the merchandise; and (3) the cash deposit rate for all other manufacturers or exporters will continue to be 4.37 percent, the all-others rate determined in the less-than-fair-value investigation.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) order and countervailing duty (CVD) order on circular welded carbon quality steel line pipe (welded line pipe) from the People's Republic of China (China) would likely lead to a continuation or recurrence of dumping, countervailable subsidies, and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the AD order and the CVD order.
Applicable October 2, 2019.
Thomas Hanna, AD/CVD Operations, Office IV (AD), and Kristen Johnson, AD/CVD Operations, Office III (CVD), Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0835 and (202) 482-4793, respectively.
On January 23, 2009, Commerce published in the
On April 16 and 17, 2019, Commerce received notices of intent to participate in the sunset reviews from California Steel Industries, Inc., TMK IPSCO, Welspun Tubular LLC, and Zekelman Industries (collectively, the domestic interested parties) within the deadline specified in 19 CFR 351.218(d)(1)(i).
On April 30, 2019, Commerce received complete and adequate substantive responses from the domestic interested parties filed within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
As a result of its reviews, Commerce determined, pursuant to sections 751(c)(1) and 752(b) and (c) of the Act, that revocation of the
On September 25, 2019, the ITC published its determination that revocation of the
The merchandise covered by the orders is circular welded carbon quality steel pipe of a kind used for oil and gas pipelines (welded line pipe), not more than 406.4 mm (16 inches) in outside diameter, regardless of wall thickness, length, surface finish, end finish or stenciling.
The term “carbon quality steel” includes both carbon steel and carbon steel mixed with small amounts of alloying elements that may exceed the individual weight limits for non-alloy steels imposed in the Harmonized Tariff Schedule of the United States (HTSUS). Specifically, the term “carbon quality” includes products in which (1) iron predominates by weight over each of the other contained elements, (2) the carbon content is 2 percent or less by weight and (3) none of the elements listed below exceeds the quantity by weight respectively indicated:
(i) 2.00 percent of manganese,
(ii) 2.25 percent of silicon,
(iii) 1.00 percent of copper,
(iv) 0.50 percent of aluminum,
(v) 1.25 percent of chromium,
(vi) 0.30 percent of cobalt,
(vii) 0.40 percent of lead,
(viii) 1.25 percent of nickel,
(ix) 0.30 percent of tungsten,
(x) 0.012 percent of boron,
(xi) 0.50 percent of molybdenum,
(xii) 0.15 percent of niobium,
(xiii) 0.41 percent of titanium,
(xiv) 0.15 percent of vanadium, or
(xv) 0.15 percent of zirconium.
Welded line pipe is normally produced to specifications published by
Excluded from the scope are pipes of a kind used for oil and gas pipelines that are multiple-stenciled to a standard and/or structural specification and have one or more of the following characteristics: Is 32 feet in length or less; is less than 2.0 inches (50 mm) in outside diameter; has a galvanized and/or painted surface finish; or has a threaded and/or coupled end finish. (The term “painted” does not include coatings to inhibit rust in transit, such as varnish, but includes coatings such as polyester.)
The welded line pipe products that are the subject of the orders are currently classifiable in the HTSUS under subheadings 7306.19.10.10, 7306.19.10.50, 7306.19.51.10, and 7306.19.51.50. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the orders is dispositive.
As a result of the determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice also serves as the only reminder to parties subject to APO of their responsibility concerning the return, destruction, or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.
These five-year sunset reviews and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On August 23, 2019, the Department of Commerce (Commerce) published the initiation and preliminary results of the changed circumstances review (CCR) of the antidumping duty (AD) order on fine denier polyester staple fiber (PSF) from the Republic of Korea (Korea). For these final results, Commerce continues to find that Toray Advanced Materials Korea, Inc. (TAK) is the successor-in-interest to Toray Chemical Korea, Inc. (TCK).
Applicable October 2, 2019.
Thomas Hanna, 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) 482-4682.
On May 23, 2019, TAK requested that, pursuant to section 751(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216(b), Commerce conduct a CCR of the AD order on PSF from Korea.
On August 23, 2019, Commerce published the notice of initiation and preliminary results for this CCR, determining that TAK is the successor-in-interest to TCK.
The merchandise covered by the order is fine denier polyester staple fiber (fine denier PSF), not carded or combed, measuring less than 3.3 decitex (3 denier) in diameter. The scope covers all fine denier PSF, whether coated or uncoated. Fine denier PSF is classifiable under the HTSUS subheading 5503.20.0025. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
For the reasons stated in the
We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act and 19 CFR 351.216(e), 351.221(b), and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these sunset reviews, the Department of Commerce (Commerce) finds that revocation of the antidumping duty orders on welded stainless steel pressure pipe (WSSPP) from Malaysia, Thailand, and the Socialist Republic of Vietnam (Vietnam) would be likely to lead to continuation or recurrence of dumping, at the levels identified in the “Final Results of Sunset Reviews” section of this notice.
Applicable October 2, 2019.
Ariela Garvett or Magd Zalok, 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) 482-3609 or (202) 482-4162, respectively.
On July 21, 2014, Commerce published in the
The merchandise covered by these orders are circular welded austenitic stainless pressure pipe not greater than 14 inches in outside diameter. For purposes of these orders, references to size are in nominal inches and include all products within tolerances allowed by pipe specifications. This merchandise includes, but is not limited to, the American Society for Testing and Materials (ASTM) A-312 or ASTM A-778 specifications, or comparable domestic or foreign specifications. ASTM A-358 products are only included when they are produced to meet ASTM A-312 or ASTM A-778 specifications, or comparable domestic or foreign specifications.
Excluded from the scope are: (1) Welded stainless mechanical tubing, meeting ASTM A-554 or comparable domestic or foreign specifications; (2) boiler, heat exchanger, superheater, refining furnace, feedwater heater, and condenser tubing, meeting ASTM A-249, ASTM A-688 or comparable domestic or foreign specifications; and (3) specialized tubing, meeting ASTM A269, ASTM A-270 or comparable domestic or foreign specifications.
The subject imports are normally classified in subheadings 7306.40.5005, 7306.40.5040, 7306.40.5062, 7306.40.5064, and 7306.40.5085 of the Harmonized Tariff Schedule of the United States (HTSUS). They may also enter under HTSUS subheadings 7306.40.1010, 7306.40.1015, 7306.40.5042, 7306.40.5044, 7306.40.5080, and 7306.40.5090. The HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope of these investigations is dispositive.
A complete discussion of all issues raised in these sunset reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation of the
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the
This notice also serves as the only reminder to parties subject to 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. Timely notification of the return or destruction of APO materials, or conversion to judicial protective, orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.218 and 19 CFR 351.221(c)(5)(ii).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that the two companies subject to this administrative review are part of the China-wide entity because neither filed a separate rate application (SRA). The period of review (POR) is February 1, 2018 through January 31, 2019. We invite interested parties to comment on these preliminary results.
Applicable October 2, 2019.
Javier Barrientos, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone at (202) 482-2243.
On February 8, 2019, Commerce published a notice of opportunity to request an administrative review of the antidumping duty order on uncovered innerspring units (innersprings) from the People's Republic of China (China).
The merchandise subject to the order is uncovered innerspring units composed of a series of individual metal springs joined together in sizes corresponding to the sizes of adult mattresses (
Uncovered innerspring units are suitable for use as the innerspring component in the manufacture of innerspring mattresses, including mattresses that incorporate a foam encasement around the innerspring.
Pocketed and non-pocketed innerspring units are included in this definition. Non-pocketed innersprings are typically joined together with helical wire and border rods. Non-pocketed innersprings are included in this definition regardless of whether they have border rods attached to the perimeter of the innerspring. Pocketed innersprings are individual coils covered by a “pocket” or “sock” of a nonwoven synthetic material or woven material and then glued together in a linear fashion.
Uncovered innersprings are classified under subheading 9404.29.9010 and have also been classified under subheadings 9404.10.0000, 9404.29.9005, 9404.29.9011, 7326.20.0070, 7326.20.0090, 7320.20.5010, 7320.90.5010, or 7326.20.0071 of the Harmonized Tariff Schedule of the United States (HTSUS).
Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213.
Neither of the companies subject to this review filed an SRA. Thus, Commerce preliminarily determines that these companies have not demonstrated their eligibility for separate rate status. As such, Commerce preliminarily determines that the companies subject to review are part of the China-wide entity. In addition, Commerce no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative review.
Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments, filed electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS), within 30 days after the date of publication of these preliminary results of review.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to Commerce within 30 days of the date of publication of this notice.
Upon issuance of the final results of this review, Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For companies that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice also serves as a reminder to importers of their responsibility under 19 CFR 315.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these preliminary results in accordance with sections 751(a)(1) and 777(i) of the Act, and 19 CFR 351.213(h) and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that revocation of the
Applicable October 2, 2019.
Eric Greynolds, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6071.
On March 19, 2009, Commerce published in the
On June 28, 2019, pursuant to 19 CFR 351.218(d)(3)(i), the domestic interested parties filed a timely and adequate substantive response.
The merchandise covered by this order is circular welded austenitic stainless pressure pipe not greater than 14 inches in outside diameter.
The subject imports are normally classified in subheadings 7306.40.5005, 7306.40.5040, 7306.40.5062, 7306.40.5064, and 7306.40.5085 of the Harmonized Tariff Schedule of the United States (HTSUS). They may also enter under HTSUS subheadings 7306.40.1010, 7306.40.1015, 7306.40.5042, 7306.40.5044, 7306.40.5080, and 7306.40.5090. The HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope is dispositive.
A complete discussion of all issues raised in this sunset review, including the likelihood of continuation or recurrence of a countervailable subsidy and the net countervailable subsidy rates likely to prevail if the
Pursuant to sections 751(c)(1) and 752(b) of the Act, Commerce determines that revocation of the
This notice serves as the only reminder to parties subject to 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. Timely 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 violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218 and 19 CFR 351.221(c)(5)(ii).
In notice document 2019-13985 beginning on page 31295 in the issue of Monday, July 1, 2019, make the following correction:
On page 31296, in the table, under the Antidumping Duty Proceedings heading, the sixth entry “In-Shell Pistachios A-507-502” should read “IRAN: In-Shell Pistachios A-507-502”.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that revocation of the antidumping duty order on circular welded austenitic stainless pressure pipe (WSPP) from the People's Republic of China (China) would be likely to lead to continuation or recurrence of dumping, at the level indicated in the “Final Results of Sunset Review” section of this notice.
Applicable October 2, 2019.
Thomas Hanna, 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) 482-0835.
On March 17, 2009, Commerce published in the
On June 28, 2019, pursuant to 19 CFR 351.218(d)(3)(i), the domestic interested parties filed a timely and adequate substantive response.
The merchandise covered by this order is circular welded austenitic stainless pressure pipe not greater than 14 inches in outside diameter.
The subject imports are normally classified in subheadings 7306.40.5005; 7306.40.5040, 7306.40.5062, 7306.40.5064, and 7306.40.5085 of the Harmonized Tariff Schedule of the United States (HTSUS). They may also enter under HTSUS subheadings 7306.40.1010; 7306.40.1015; 7306.40.5042, 7306.40.5044, 7306.40.5080, and 7306.40.5090. The HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope of this order is dispositive.
A complete discussion of all issues raised in this sunset review, including the likelihood of continuation or recurrence of dumping in the event of revocation of the
Pursuant to sections 751(c)(1), 752(c)(1) and (3) of the Act, Commerce determines that revocation of the
This notice also serves as the only reminder to parties subject to 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. Timely notification of the return or destruction of APO materials, or conversion to judicial protective, orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.218 and 19 CFR 351.221(c)(5)(ii).
National Institute of Standards and Technology (NIST), Commerce.
Notice and request for comments.
The National Institute of Standards and Technology (NIST) is soliciting public comment on revisions to Voluntary Product Standard (PS) 20-15, American Softwood Lumber Standard. This standard, prepared by the American Lumber Standard Committee, serves the procurement and regulatory needs of numerous federal, state, and local government agencies by providing for uniform, industry-wide grade-marking and inspection requirements for softwood lumber.
The implementation of the standard also allows for uniform labeling and auditing of treated wood and wood packaging materials. As part of a five-year review process, NIST is seeking public comment and invites interested parties to review the revised standard and submit comments.
Written comments regarding the proposed revision should be submitted no later than 5:00 p.m. Eastern time on November 1, 2019. Written comments in response to this notice should be submitted according to the instructions in the
An electronic copy (in PDF) of the current standard and proposed revisions can be obtained at the following website
David F. Alderman, Standards Services Division, National Institute of Standards and Technology, telephone (301) 975-4019; fax: (301) 975-4715, email:
The proposed revision of the standard has been developed and is being processed in accordance with Department of Commerce provisions in 15 CFR part 10, Procedures for the Development of Voluntary Product Standards, as amended (published June 20, 1986). Under 15 CFR, part 10, the American Lumber Standard Committee (Committee) acts as the Standing Committee for PS 20-15. The Committee is responsible for maintaining, revising, and interpreting the standard and is comprised of producers, distributors, users, and others with an interest in the standard.
Voluntary Product Standard (PS) 20-15 establishes standard sizes and requirements for developing and coordinating the lumber grades of the various species of lumber, the assignment of design values, and the preparation of grading rules applicable to each species. Its provisions include implementation of the standard through an accreditation and certification program; establishment of principal classifications and lumber sizes for yard, structural, and factory/shop use; classification, measurement, grading, and grade-marking of lumber; definitions of terms and procedures to provide a basis for the use of uniform methods in the grading inspection, measurement, and description of softwood lumber; commercial names of the principal softwood species; definitions of terms used in describing standard grades of lumber; and commonly used industry abbreviations. The standard also includes the organization and functions of the Committee, the Board of Review, and the National Grading Rule Committee.
NIST invites public comments on the current standard, PS 20-15, which is available at
Attachments will be accepted in plain text, Microsoft Word, or Adobe PDF formats. Comments containing references, studies, research, and other empirical data that are not widely published should include copies or electronic links of the referenced materials.
All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. NIST reserves the right to publish comments publicly, unedited and in
All public comments will be reviewed and considered. Written comments should be submitted in accordance with the
15 U.S.C. 272.
National Institute of Standards and Technology, Department of Commerce.
Notice.
This notice lists the membership of the National Institute of Standards and Technology Performance Review Board (NIST PRB) and supersedes the list published on August 27, 2018.
The changes to the NIST PRB membership list announced in this notice are effective October 2, 2019.
Didi Hanlein at the National Institute of Standards and Technology, (301) 975-3020 or by email at
The National Institute of Standards and Technology Performance Review Board (NIST PRB or Board) reviews performance appraisals, agreements, and recommended actions pertaining to employees in the Senior Executive Service and ST-3104 employees. The Board makes recommendations to the appropriate appointing authority concerning such matters so as to ensure the fair and equitable treatment of these individuals.
This notice lists the membership of the NIST PRB and supersedes the list published in the
5 U.S.C. 4301
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to Ørsted Wind Power LLC (Ørsted) to take small numbers of marine mammals, by harassment, incidental to high-resolution geophysical (HRG) survey investigations associated with marine site characterization activities off the coast of Massachusetts and Rhode Island in the areas of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS). These areas are currently being leased by the Applicant's affiliates, Deepwater Wind New England, LLC and Bay State Wind LLC respectively, and are identified as OCS-A 0486, OCS-A 0487, and OCS-A 0500 (collectively referred to as the Lease Areas). Ørsted is also planning to conduct marine site characterization surveys along one or more export cable route corridors (ECRs) originating from the Lease Areas and landing along the shoreline at locations from New York to Massachusetts, between Raritan Bay (part of the New York Bight) to Falmouth, Massachusetts.
This authorization is effective one year from the date of issuance.
Rob Pauline, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as the issued IHA, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the
On March 8, 2019, NMFS received an application from Ørsted for the taking of marine mammals incidental to HRG and geotechnical survey investigations in the OCS-A 0486, OCS-A 0487, and OCS-A 0500 Lease Areas, designated and offered by the Bureau of Ocean Energy Management (BOEM) as well as along one or more ECRs between the southern portions of the Lease Areas and shoreline locations from New York to Massachusetts, to support the development of an offshore wind project. Ørsted's request is for take, by Level B harassment, of small numbers of 15 species or stocks of marine mammals. The application was considered adequate and complete on May 23, 2019. Neither Ørsted nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
NMFS previously issued two IHAs to Ørsted subsidiaries Bay State Wind (81 FR 56589, August 22, 2016; 83 FR 36539, July 30, 2018) and Deepwater Wind (82 FR 32230, July 13, 2017; 83 FR 28808, June 21, 2018) for similar activities. Ørsted has complied with all the requirements (
The purpose of the HRG surveys in the Lease Area and ECRs is to support the characterization of the existing seabed and subsurface geological conditions. This information is necessary to support the final siting, design, and installation of offshore project facilities, turbines and subsea cables within the project area as well as to collect the data necessary to support the review requirements associated with section 106 of the National Historic Preservation Act of 1966, as amended. Underwater sound resulting from Ørsted's planned site characterization surveys has the potential to result in incidental take of marine mammals. This take of marine mammals is anticipated to be in the form of harassment and no serious injury or mortality is anticipated, nor is any authorized in this IHA. Ørsted plans to conduct continuous HRG survey operations 24-hours per day (Lease Area and ECR Corridors) using multiple vessels. Based on the planned 24-hour operations, the survey activities for all survey segments would require 666 vessel days total if one vessel were surveying the entire survey line continuously. However, an estimated 5 vessels may be used simultaneously with a maximum of no more than 9 vessels. Therefore, all of the survey will be completed within one year.
A detailed description of the planned survey activities, including types of survey equipment planned for use, is provided in the
A notice of NMFS' proposal to issue an IHA was published in the
The following is a summary of the public comments received and NMFS' responses.
NMFS' purpose in providing for Renewals is two-fold. First and foremost, the efficiencies in dealing with these simple, low-impact projects (which have already been fully described and analyzed in the initial IHA) frees up limited staff resources to increase focus on more complex and impactful projects and improves our ability to conserve and protect marine mammals by even better evaluating and utilizing new science, evolving technologies, and potential new mitigation measures. In addition, while the agency has always striven for efficiency in regulatory processes, recent directives have called for agencies to put processes in place that reduce regulatory timelines and the regulatory burden on the public. The Renewal process reduces the effort needed by both applicants and NMFS staff for simple, relatively low impact projects with little to no uncertainty regarding effects that have already been fully analyzed by the agency and considered by the public—with no reduction in protection to marine mammals.
In addition, to minimize any burden on reviewers, NMFS will directly contact all commenters on the initial IHA by email, phone, or, if the commenter did not provide email or phone information, by postal service to provide them direct notice about the opportunity to submit any additional comments.
While there will be additional documents submitted with a Renewal request, for a qualifying Renewal these will be limited to documentation that NMFS will make available and use to verify that the activities are identical to those in the initial IHA, are nearly identical such that the changes would have either no effect on impacts to marine mammals or decrease those impacts, or are a subset of activities already analyzed and authorized but not completed under the initial IHA. NMFS will also confirm, among other things, that the activities will occur in the same location; involve the same species and stocks; provide for continuation of the same mitigation, monitoring, and reporting requirements; and that no new information has been received that would alter the prior analysis. The Renewal request will also contain a preliminary monitoring report, but that is to verify that effects from the activities do not indicate impacts of a scale or nature not previously analyzed. The additional 15-day public comment period provides the public an opportunity to review these few documents, provideany additional pertinent information and comment on whether they think the criteria for a Renewal have been met. Between the initial 30-day comment period on these same activities and the additional 15 days, the total comment period for a Renewal is 45 days.
In addition to the IHA Renewal process being consistent with all requirements under section 101(a)(5)(D), it is also consistent with Congress' intent for issuance of IHAs to the extent reflected in statements in the legislative history of the MMPA. Through the provision for Renewals in the regulations, description of the process and express invitation to comment on specific potential Renewals in the Request for Public Comments section of each proposed IHA, the description of the process on NMFS' website, further elaboration on the process through responses to comments such as these, posting of substantive documents on the agency's website, and provision of 30 or 45 days for public review and comment on all proposed initial IHAs and Renewals respectively, NMFS has ensured that the public “is invited and encouraged to participate fully in the agency decision-making process.” Otherwise the NGOs cite to a House of Representatives' Report that discusses the timing of public comment where a request is received for an IHA identical to one issued in the previous year. But the bill that this report accompanied included a specific provision for renewing IHAs, which was not included in the final public law. Therefore it is unknown how the statement in the House Report relates, if at all, to NMFS' implementation of the statutory provisions that in the end were enacted.
NMFS is concerned about the status of the North Atlantic right whale population given that a UME has been in effect for this species since June of 2017 and that there have been a number of recent mortalities. While NMFS expects that the effects of a single HRG survey would be less impactful than those of some other larger sources of concern, the potential impacts of multiple HRG vessels (5-9 according to Ørsted) operating simultaneously in areas of higher right whale density are not well-documented and warrant caution. NMFS reviewed the best available right whale abundance data for the planned survey area extending from southern New England to southern Long Island (Roberts
Ørsted anticipates that approximately 25% of the Lease Area vessel days (78) may occur between March and June, the months in which right whale density in the Lease Areas is highest. Also, no more than 5% of the total vessel days (33) are anticipated for the ECR area north of the lease areas between February and April, an area and season in which right whale densities are also comparatively higher. While this greater detail regarding the likely spatio-temporal distribution of surveys across the action area alleviates some concerns (
Limiting the number of survey vessels operating concurrently during high-density months in high-density areas will help to reduce both the number and intensity of right whale takes. Regarding practicability, the timing of Ørsted's surveys is driven by a complex suite of factors including availability of vessels and equipment (which are used for other surveys and by other companies), other permitting timelines, and the timing of certain restrictions associated with fisheries gear, among other things.
The commenters have not provided us with any specific recommendations to evaluate beyond a broad recommendation. However, we will encourage coordination and communication between offshore wind developers and researchers on effectiveness of night vision and infra-red technologies, to the extent possible. While we acknowledge that no technology is 100% effective either during daylight or nighttime hours, the equipment used here will enhance PSO's ability to detect marine mammals at night and the fact that not all will be detected is accounted for in the authorized take.
Given that the effects to marine mammals from the types of surveys authorized in this IHA are expected to be limited to low level behavioral harassment even in the absence of mitigation, the limited additional benefit anticipated by adding this detection method (especially for right whales and other low frequency species), and the cost and impracticability of implementing a PAM program, we have determined the current requirements for visual monitoring are sufficient to ensure the least practicable adverse impact on the affected species or stocks and their habitat.
(i) NMFS acknowledges that the potential for behavioral response to an anthropogenic source is highly variable and context-specific and acknowledges the potential for Level B harassment at exposures to received levels below 160 dB rms. Alternatively, NMFS acknowledges the potential that not all animals exposed to received levels above 160 dB rms will not respond in ways constituting behavioral harassment. There are a variety of studies indicating that contextual variables play a very important role in response to anthropogenic noise, and the severity of effects are not necessarily linear when compared to a received level (RL). The studies cited in the comment (Nowacek
NMFS uses 160 dB (rms) as the exposure level for estimating Level B harassment takes and is currently considered the best available science, while acknowledging that the 160 db rms step-function approach is a simplistic approach. However, there appears to be a misconception regarding the concept of the 160 dB threshold. While it is correct that in practice it works as a step-function,
Overall, we reiterate the lack of scientific consensus regarding what criteria might be more appropriate. Defining sound levels that disrupt behavioral patterns is difficult because responses depend on the context in which the animal receives the sound, including an animal's behavioral mode when it hears sounds (
There is currently no agreement on these complex issues, and NMFS followed the practice at the time of submission and review of this application in assessing the likelihood of disruption of behavioral patterns by using the 160 dB threshold. This threshold has remained in use in part because of the practical need to use a relatively simple threshold based on available information that is both predictable and measurable for most activities. We note that the seminal review presented by Southall
NMFS acknowledges that there may be methods of assessing likely behavioral response to acoustic stimuli that better capture the variation and context-dependency of those responses than the simple 160 dB step-function used here, there is no agreement on what that method should be or how more complicated methods may be implemented by applicants. NMFS is committed to continuing its work in developing updated guidance with regard to acoustic thresholds, but pending additional consideration and process is reliant upon an established threshold that is reasonably reflective of available science.
(ii) The ENGOs contended that NMFS did not use the best available scientific information on habitat use of the Lease Areas, including areas that are increasingly important foraging sited. The ENGOs referenced articles by Kraus
(iii) Given the geographic and temporal extent of the survey area as well as continuous 24-hour operations, the ENGOs question the effectiveness of the mitigation measures proposed to be authorized. They specifically recommended that seasonal restrictions should be established and consideration should be given species for which a UME has been declared. NMFS is requiring Ørsted to comply with seasonal restrictions limiting the number of vessels that can operate concurrently in the Lease Areas and the area north of that (higher density areas for right whales) during the higher density months of the year. Please refer to the response to Comment 19 for additional detail. Furthermore, we have established a 500-m shutdown zone for right whales which is precautionary considering the Level B harassment isopleth for the largest source utilized in the specified activities for this IHA is was initially estimated at 178-m. Further, actual isopleths are no greater than 141 m for one omnidirectional HRG device (Applied Acoustics Dura-Spark 400 System) and are considerably less for a number of other HRG devices employing downward facing beams at various angles. We determined that the Level B harassment isopleths are smaller than 178 m (maximum of 141 m) for the entire survey area. After accounting for these smaller zones the calculated right whale exposures decreased from 100 to 47 animals. At these distances, monitoring by PSOs is expected to be highly effective. Given these factors, we are confident in our decision to authorize 10 takes by Level B harassment. Additionally, similar mitigation measures have been required in several previous HRG survey IHAs and have been successfully implemented.
(iv) The commenters disagreed with NMFS' assumption that marine mammals move away from sound sources. The ENGOs claimed that studies have not found avoidance behavior to be generalizable among species and contexts, and even though avoidance may itself constitute take under the MMPA. Importantly, the commenters mistakenly seem to believe that the NMFS' does not consider avoidance as a take, and that the concept of avoidance is used as a mechanism to reduce overall take—this is not the case. Avoidance of loud sounds is a well-documented behavioral response, and NMFS often accordingly accounts for this avoidance by reducing the number of injurious exposures, which would occur in very close proximity to the source and necessitate a longer duration of exposure. However, when Level A harassment takes are reduced in this manner, they are changed to Level B harassment takes, in recognition of the fact that this avoidance or other behavioral responses occurring as a result of these exposures are still take. NMFS does not reduce the overall amount of take as a result of avoidance.
(v) For additional discussion, NMFS directs the reader to the Potential Effects section. Observed responses of wild marine mammals to loud pulsed sound sources (typically airguns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; see also Richardson
(vi) The ENGOs felt that that the monitoring protocols prescribed by NMFS are under-protective while noting that the protocols are less protective than those required as part of previous IHA authorizations covering HRG surveys. NMFS believes that implementation of the required monitoring protocols are adequate to ensure the least practicable adverse impact on the effected species or stocks and their habitat and, further, as we have described, we have determined that the number of animals taken will be small and that potential impacts to any stocks will be negligible. While some previously issued IHAs have required the use of PAM, NMFS described why we do not believe this is necessary in our response to Comment 25. Previous IHAs did require a 500-m right whale exclusion zone, a 200-m exclusion zone for listed whale species, 25-m zone for harbor porpoises and no exclusion zone for non-listed species. The IHA issued to Ørsted also has a 500-m right whale exclusion zone. However, it also has a 100-m exclusion zone for all other listed and non-listed marine mammal species, including harbor porpoise. While the previous IHAs offered slightly increased protection for listed whale species (200 m vs 100 m), the current IHA offers increased protection for all other non-listed species (0 m vs 100 m) including harbor porpoise (25 m vs 100 m). Importantly, the previous IHA had a significantly larger Level B harassment zone (447 m), resulting in a much larger area within which marine mammals might be harassed outside of the exclusion zone. Given this information it is not clear how the previous IHAs can be categorized as being more protective than the current IHA.
As described above, the number of right whales that could actually experience Level B harassment is smaller than what is projected assuming a 178-m isopleth. The HRG device with the largest omnidirectional isopleth (141 m) is the Applied Acoustics Dura-Spark 400 System. Much of the remaining HRG equipment uses focused beams with further reduces the calculated
The 500-m shutdown zone for right whales is highly conservative. When the directionality of the sound source is considered, the largest Level B harassment isopleth for this IHA is 141 m with much of remaining directional HRG equipment having behavioral disturbance zones that are considerably smaller. At these reduced distances, PSOs should be able to successfully monitor for right whales and other species, even during night operations with the assistance of night vision and infra-red devices. As noted in the response to Comment 18, visual observation by PSOs is generally effective in detecting larger marine mammal species, including right whales, especially in shallower waters.
Given the low occurrence of right whale observations as depicted in the recent marine mammal monitoring report (0 confirmed sightings) over an extended period (376 days), the substantially reduced Level B harassment zone sizes and associated exposure estimates, the seasonal reduction in the number of survey vessels permitted to operate concurrently in high density areas (3), as well as the expected efficacy of mitigation and monitoring measures, a reduction in the calculated exposure estimates of 47 right whales (initially 100 exposures as described previously) to 10 is justifiable.
NMFS has made several minor changes to the mitigation and monitoring measures since the publication of the proposed IHA which are listed below:
• NMFS has removed several genera (
• NMFS had identified a 100-m exclusion zone for large cetaceans (
• NMFS is requiring Ørsted to restrict concurrent operation of survey vessels to a maximum of three from March through June within the three lease areas and in ECR areas north up to, but not including, coastal and bay waters. This change was made in consideration of a public comment.
• The final IHA states that if an animal is sighted within or approaching the pre-clearance zones the applicant must not use HRG equipment until the animals is observed leaving the zone or a period of 15 minutes has passed with no further sightings of small cetaceans or seals. The proposed IHA indicated that the 15 minute waiting period was only applicable to small cetaceans. Seals have reportedly been observed approaching or in close proximity to survey vessels. Therefore, this language has been added to provide more specific guidance to PSOs.
• The proposed IHA indicated that the shutdown requirement is waived for several small delphinids of specified genera if they enter into the exclusion zone. In the final IHA this measure has been clarified and now states that if a delphinid from one of the specified genera is visually detected approaching the vessel (
• The proposed IHA indicated that a dedicated ASV PSO must be stationed on the bridge of the survey vessel and monitor the real-time picture from the thermal/HD camera installed on the front of the ASV, when it is in use. However, the proposed bridge monitoring screen may interfere with night vision capabilities of the captain and other crew working on the bridge. Therefore, as part of the final IHA the dedicated ASV PSO will monitor real-time video during nighttime operations and will usually be stationed near the ASV operator. During daytime surveys the dedicated ASV will be located on the survey vessel in a position that provides a clear, unobstructed view of the ASV's exclusion and monitoring zones.
• In both the draft and final IHA, NMFS requires that independent observers must be utilized. In the final IHA, NMFS added that non-independent observers may be approved, on a case-by-case basis, for limited, specific duties in support of approved, independent PSOs. On smaller vessels engaged in shallow water surveys, limited space aboard the vessel may not allow for two or more PSOs. In that case, trained non-independent observers may take over if the lead PSOs needs to take a brief break (
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SAR;
We expect that the species listed in Table 1 will potentially occur in the project area and will potentially be taken as a result of the planned project. Table 1 summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2018). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no mortality is anticipated or authorized here, PBR is included here as a gross indicator of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprise that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in
As described below, 15 species (with 15 managed stocks) temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, which we have authorized. A detailed description of the of the species likely to be affected by planned HRG survey activities, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
The effects of underwater noise from Ørsted's survey activities have the potential to result in take of marine mammals by harassment in the vicinity of the survey area. The
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to sound from HRG equipment. Based on the nature of the
As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
These thresholds are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
When NMFS' Acoustic Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component of the new thresholds, NMFS developed an optional User Spreadsheet that includes tools to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For mobile sources such as the HRG survey equipment planned for use in Ørsted's activity, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the
Ørsted conducted field verification tests on different types of HRG equipment within the planned Lease Areas during previous site characterization survey activities. NMFS is proposing to authorize take in these same three Lease Areas listed below.
•
•
Field Verification results are shown in Table 3. The purpose of the field verification programs was to determine distances to the regulatory thresholds for injury/mortality and behavior disturbance of marine mammals that were established during the permitting process.
As part of their application, Ørsted collected field verified source levels and calculated the differential between the averaged measured field verified source levels versus manufacturers' reported source levels for each tested piece of HRG equipment. The results of the field verification studies were used to derive the variability in source levels based on the extrapolated values resulting from regression analysis. These values were used to further calibrate calculations for a specific suite of HRG equipment of similar type. Ørsted stated that the calculated differential accounts for both the site specific environmental conditions and directional beam width patterns and can be applied to similar HRG equipment within one of the specified equipment categories (
After careful consideration, NMFS concluded that the use of differentials to derive proxy SLs is not appropriate or acceptable. NMFS determined that when field verified measurements are compared to the source levels measured in a controlled experimental setting (
As noted above, much of the HRG equipment planned for use during Ørsted's survey has not been field-verified. NMFS employed an alternate approach in which data reported by Crocker and Fratantonio (2016) was used to establish injury and behavioral harassment zones. If Crocker and Fratantonio (2016) did not provide data on a specific piece of equipment within a given equipment category, the SLs reported in the study for measured equipment are used to represent all the other equipment within that category, regardless of whether any of the devices has been field verified. If SSV data from Crocker and Fratantonio (2016) is not available across an entire equipment category, NMFS instead adopted the field verified results from equipment that had been tested. Here, the largest field verified SL was used to represent the entire equipment category. These values were applied to the User Spreadsheet to calculate distances for each of the planned HRG equipment categories that might result in harassment of marine mammals. Inputs to the User Spreadsheet are shown in Table 4. The source levels used in Table 4 are from field verified values shown in Table 3. However, source levels for the EdgeTech 512 (177 dB RMS) and Applied Acoustics S-Boom Triple Plate Boomer (1,000j) (203 dB RMS) were derived from Crocker and Fratantonio (2016). Table 7 depicts isopleths that could result in injury to a specific hearing group.
In the absence of Crocker and Fratantonio (2016) data, as noted above, NMFS determined that field verified SLs could be used to delineate Level A harassment isopleths which can be used to represent all of the HRG equipment within that specific category. While there is some uncertainty given that the SLs associated with assorted HRG equipment are variable within a given category, all of the predicted distances based on the field-verified source level are small enough to support a prediction that Level A harassment is unlikely to occur. While it is possible that Level A harassment isopleths of non-verified equipment would be larger than those shown in Table 5, it is unlikely that such zones would be substantially greater in size such that take by Level A harassment would be expected. Therefore, NMFS is not proposing to authorize any take from Level A harassment.
The methodology described above was also applied to calculate Level B harassment isopleths as shown in Table 6. Note that the spherical spreading propagation model (20logR) was used to derive behavioral harassment isopleths for equipment measured by Crocker and Fratantonio (2016) data. However, the practical spreading model (15logR) was used to conservatively assess distances to Level B harassment thresholds for equipment not tested by Crocker and Fratantonio (2016). Table 6 shows calculated Level B harassment isopleths for specific equipment tested by Crocker and Fratantonio (2016) which is applied to all devices within a given category. In cases where Crocker and Fratantonio (2016) collected measurement on more than one device, the largest calculated isopleth is used to represent the entire category. Table 6 also shows field-verified SLs and associated Level B harassment isopleths for equipment categories that lack relevant Crocker & Fratantonio (2016) measurements. Additionally, Table 6 also references the specific field verification studies that were used to develop the isopleths. For these categories, the largest calculated isopleth in each category was also used to represent all equipment within that category.
Further information depicting how Level B harassment isopleths were derived for each equipment category is described below:
For the purposes of estimated take and implementing required mitigation measure, it is assumed that all HRG equipment will operate concurrently. Therefore, NMFS conservatively utilized the largest isopleth of 178 m, derived from the Applied Acoustics S-Boom Boomer medium SBP, to establish the Level B harassment zone for all HRG categories and devices.
Here we describe how the information provided above is brought together to produce a quantitative take estimate. In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to harassment thresholds are calculated, as described above. Those distances are then used to calculate the area(s) around the HRG survey equipment predicted to be ensonified to sound levels that exceed harassment thresholds. The area estimated to be ensonified to relevant thresholds by a single vessel in a single day of the survey is then calculated, based on areas predicted to be ensonified around the HRG survey equipment and the estimated trackline distance traveled per day by the survey vessel. The daily area is multiplied by the marine mammal density of a given species. This value is then multiplied by the number of planned vessel days (666).
HRG survey equipment has the potential to cause harassment as defined by the MMPA (160 dB
The estimated distance of the daily vessel trackline was determined using the estimated average speed of the vessel and the 24-hour operational period within each of the corresponding survey segments. Estimates of incidental take by HRG survey equipment are calculated using the 178 m Level B harassment isopleth, estimated daily vessel track of approximately 70 km, and the daily ensonified area of 25.022 km
The data used as the basis for estimating species density for the Lease Area are derived from data provided by Duke Universities' Marine Geospatial Ecology Lab and the Marine-life Data and Analysis Team. This data set is a compilation of the best available marine mammal data (1994-2018) and was prepared in a collaboration between Duke University, Northeast Regional Planning Body, University of Carolina, the Virginia Aquarium and Marine Science Center, and NOAA (Roberts
For the North Atlantic right whale, NMFS proposes to establish a 500-m EZ which substantially exceeds the distance to the level B harassment isopleth (178 m). However, Ørsted will be operating 24 hours per day for a total of 666 vessel days. Even with the implementation of mitigation measures (including night-vision goggles and thermal clip-ons) it is reasonable to assume that night time operations for an extended period could result in a limited number of right whales being exposed to underwater sound at Level B harassment levels. Given the fact that take has been conservatively calculated based on the largest source, which will not be operating at all times, and is thereby likely over-estimated to some degree, the fact that Ørsted will implement a shutdown zone at least 1.5 times the predicted Level B threshold distance (see below) for that largest source (and significantly more than that for the smaller sources), and the fact that night vision goggles with thermal clips will be used for nighttime operations, NMFS predicts that 10 right whales may be taken by Level B harassment.
Note that the 178-m Level B harassment isopleth associated with the Acoustics S-Boom Boomer was utilized to calculate take for the proposed IHA.
Additionally, sightings of right whales have been uncommon during previous HRG surveys. Bay State Wind submitted a marine mammal monitoring report HRG survey on July 19, 2019 described PSO observations and takes in Lease Area OCS-A500, which is part of the survey area covered under this IHA as well as along several ECR corridors closer to shore. Over 376 vessel days, three separate survey ships recorded a total of 496 marine mammal detections between May 11, 2018 and March 14, 2019. NMFS acknowledges that this monitoring span excludes a portion of the higher-density period defined by NMFS for this IHA (March-June). Nevertheless, there were no confirmed observations of right whales on any of the survey ships during the entire survey period. There were a number of unidentifiable whales reported, and it is possible that some of these unidentified animals may have been right whales. However, the lack of confirmed observations indicates that right whale sightings are not common in this region. In summary, given the low observation rate, expected efficacy of the required mitigation measures, and our revised calculated take numbers, we believe that the authorization of ten right whale takes by Level B harassment is reasonable.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) and the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The required mitigation measures outlined in this section are based on protocols and procedures that are expected to reduce the number or intensity of takes and have been successfully and practicably implemented in the past (DONG Energy, 2016, ESS, 2013; Dominion, 2013 and 2014). Ørsted is required to abide by the following measures, which have been modified slightly from the proposed IHA as described in the Changes section.
Ørsted will develop an environmental training program that will be provided to all vessel crew prior to the start of survey and during any changes in crew such that all survey personnel are fully aware and understand the mitigation, monitoring and reporting requirements. Prior to implementation, the training program will be provided to NOAA Fisheries for review and approval. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew members understand and will comply with the necessary requirements throughout the survey event.
PSOs will observe the following monitoring and exclusion zones for the presence of marine mammals:
• 500-m exclusion zone for North Atlantic right whales;
• 100-m exclusion zone for all marine mammals (except North Atlantic right whales); and
• 180-m Level B harassment zone for all marine mammals except for North Atlantic right whales. This represents the largest Level B harassment isopleth applicable to all hearing groups. Animals observed entering into the Level B harassment zone will be recorded as Level B takes.
If a marine mammal is detected approaching or entering the exclusion zones during the HRG survey, the vessel operator would adhere to the shutdown procedures described below to minimize noise impacts on the animals.
At all times, the vessel operator will maintain a separation distance of 500 m from any sighted North Atlantic right whale as stipulated in the
Ørsted will implement a 30-minute clearance period of the exclusion zones prior to the initiation of ramp-up. During this period the exclusion zones will be monitored by the PSOs, using the appropriate visual technology for a 30-minute period. Ramp up may not be initiated if any marine mammal(s) is within its respective exclusion zone. If
A ramp-up procedure will be used for HRG survey equipment capable of adjusting energy levels at the start or re-start of HRG survey activities. A ramp-up procedure will be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to vacate the area prior to the commencement of survey equipment use. The ramp-up procedure will not be initiated during periods of inclement conditions or if the exclusion zones cannot be adequately monitored by the PSOs, using the appropriate visual technology for a 30-minute period
A ramp-up would begin with the powering up of the smallest acoustic HRG equipment at its lowest practical power output appropriate for the survey. When technically feasible the power would then be gradually turned up and other acoustic sources would be added.
Ramp-up activities will be delayed if a marine mammal(s) enters its respective exclusion zone. Ramp-up will continue if the animal has been observed exiting its respective exclusion zone or until an additional time period has elapsed with no further sighting (
An immediate shut-down of the HRG survey equipment will be required if a marine mammal is sighted at or within its respective exclusion zone. The vessel operator must comply immediately with any call for shut-down by the Lead PSO. Any disagreement between the Lead PSO and vessel operator should be discussed only after shut-down has occurred. Subsequent restart of the survey equipment can be initiated if the animal has been observed exiting its respective exclusion zone with 30 minutes of the shut-down or until an additional time period has elapsed with no further sighting (
If a species for which authorization has not been granted, or, a species for which authorization has been granted but the authorized number of takes have been met, approaches or is observed within the 180 m Level B harassment zone, shutdown must occur.
If the acoustic source is shut down for reasons other than mitigation (
The shutdown requirement is waived for small delphinids of the following genera:
Ørsted will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds and slow down or stop their vessels to avoid striking these species. Survey vessel crew members responsible for navigation duties will receive site-specific training on marine mammal and sea turtle sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures will include the following, except under extraordinary circumstances when complying with these requirements would put the safety of the vessel or crew at risk:
• All vessel operators will comply with 10 knot (<18.5 km per hour [km/h]) speed restrictions in any Dynamic Management Area (DMA) when in effect and in Mid-Atlantic Seasonal Management Areas (SMA) from November 1 through April 30;
• All vessel operators will reduce vessel speed to 10 knots or less when mother/calf pairs, pods, or larger assemblages of non-delphinoid cetaceans are observed near an underway vessel;
• All survey vessels will maintain a separation distance of 1,640 ft (500 m) or greater from any sighted North Atlantic right whale;
• If underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 knots (<18.5 km/h) or less until the 1,640-ft (500-m) minimum separation distance has been established. If a North Atlantic right whale is sighted in a vessel's path, or within 330 ft (100 m) to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 330 ft (100 m). If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 330 ft (100 m);
• All vessels will maintain a separation distance of 330 ft (100 m) or greater from any sighted non-delphinoid (
• All vessels will maintain a separation distance of 164 ft (50 m) or greater from any sighted delphinid cetacean. Any vessel underway remain parallel to a sighted delphinid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway reduces vessel speed to 10 knots or less when pods (including mother/calf pairs) or large assemblages of delphinid cetaceans are observed. Vessels may not adjust course and speed until the delphinid cetaceans have moved beyond 164 ft (50 m) and/or the abeam of the underway vessel;
• All vessels underway will not divert to approach any delphinid cetacean or pinniped. Any vessel underway will avoid excessive speed or abrupt changes in direction to avoid injury to the sighted delphinid cetacean or pinniped; and
• All vessels will maintain a separation distance of 164 ft (50 m) or greater from any sighted pinniped.
Ørsted will limit to three the number surveys that will operate concurrently from March through June within the identified lease areas (OCS-A 0486, 0487, and 0500) and ECR areas north of the lease areas up to, but not including, coastal and bay waters. Ørsted plans to operate either a single vessel, two vessels concurrently or, for short periods, no more than three survey vessels concurrently in the areas described above during the March-June timeframe when right whale densities are greatest. This practice will help to reduce both the number and intensity of right whale takes.
Between watch shifts members of the monitoring team will consult NOAA Fisheries North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. Survey vessels may transit the SMA located off the coast of Rhode Island (Block Island Sound SMA) and at the entrance to New York Harbor (New York Bight SMA). The seasonal mandatory speed restriction period for this SMA is November 1 through April 30.
Throughout all survey operations, Ørsted will monitor NOAA Fisheries North Atlantic right whale reporting systems for the establishment of a DMA. If NOAA Fisheries should establish a DMA in the Lease Area under survey, the vessels will abide by speed restrictions in the DMA per the lease condition.
Based on our evaluation of the applicant's planned measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the planned action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Visual monitoring of the established monitoring and exclusion zone(s) for the HRG surveys will be performed by qualified, NMFS-approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of survey activities. During these observations, the following guidelines shall be followed:
Other than brief alerts to bridge personnel of maritime hazards and the collection of ancillary wildlife data, no additional duties may be assigned to the PSO during his/her visual observation watch. PSOs must be independent observers (
The PSOs will begin observation of the monitoring and exclusion zones during all HRG survey operations. Observations of the zones will continue throughout the survey activity and/or while equipment operating below 200 kHz are in use. The PSOs will be responsible for visually monitoring and identifying marine mammals approaching or entering the established zones during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate and enforce the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate.
PSOs will be equipped with binoculars and will have the ability to estimate distances to marine mammals located in proximity to their respective exclusion zones and monitoring zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Camera equipment capable of recording sightings and verifying species identification will be utilized. During night operations, night-vision equipment (night-vision goggles with thermal clip-ons) and infrared technology will be used. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting.
Observations will take place from the highest available vantage point on all the survey vessels. General 360-degree scanning will occur during the monitoring periods, and target scanning by the PSOs will occur when alerted of a marine mammal presence.
For monitoring around the ASV, a dual thermal/HD camera will be installed on the mother vessel, facing forward, angled in a direction so as to provide a field of view ahead of the vessel and around the ASV. One PSO will be assigned to monitor the ASV exclusively at all times during both day and night when in use. During day operations the ASV will be kept in sight of the mother vessel at all times (within 800 m) and the dedicated ASV PSO will have a clear, unobstructed view of the ASV's exclusion and monitoring zones. PSOs will adjust their positions appropriately to ensure adequate coverage of the entire exclusion and monitoring zones around the respective sound sources. While conducting survey operations at night, the dedicated ASV operator will view live video feed from the dual thermal/HD camera mounted on the ASV. Images from the cameras can be captured for review and to assist in verifying species identification. In addition, night-vision goggles with thermal clip-ons, as mentioned above, and a hand-held spotlight will be provided such that PSOs can focus observations in any direction, around the mother vessel and/or the ASV.
Observers will maintain 360° coverage surrounding the mothership vessel and the ASV when in operation, which will travel ahead and slightly offset to the mothership on the survey line. PSOs will adjust their positions appropriately to ensure adequate coverage of the entire exclusion zone around the mothership and the ASV.
As part of the monitoring program, PSOs will record all sightings beyond the established monitoring and exclusion zones, as far as they can see. Data on all PSO observations will be recorded based on standard PSO collection requirements.
Ørsted will provide the following reports as necessary during survey activities:
In the unanticipated event that the specified HRG and geotechnical activities lead to an unauthorized injury of a marine mammal (Level A harassment) or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the event. NMFS would work with Ørsted to minimize reoccurrence of such an event in the future. Ørsted would not resume activities until notified by NMFS.
In the event that Ørsted discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that Ørsted discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Within 90 days after completion of the marine site characterization survey activities, a draft technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals that may have been taken during survey activities, and provides an interpretation of the results and effectiveness of all monitoring tasks. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 8, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat,
As discussed in the “Potential Effects of the Specified Activity on Marine Mammals and Their Habitat” section, PTS, masking, non-auditory physical effects, and vessel strike are not expected to occur.
The majority of impacts to marine mammals are expected to be short-term disruption of behavioral patterns, primarily in the form of avoidance or potential interruption of foraging. Marine mammal feeding behavior is not likely to be significantly impacted. Prey species are mobile, and are broadly distributed throughout the survey area and the footprint of the activity is small; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the availability of similar habitat and resources in the surrounding area the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
Marine mammal habitat may experience limited physical impacts in the form of grab samples taken from the sea floor. This highly localized habitat impact is negligible in relation to the comparatively vast area of surrounding open ocean, and would not be expected to result in any effects to prey availability. The HRG survey equipment itself will not result in physical habitat disturbance. Avoidance of the area around the HRG survey activities by marine mammal prey species is possible. However, any avoidance by prey species would be expected to be short term and temporary.
ESA-listed species for which takes are authorized are right, fin, sei, and sperm whales, and these effects are anticipated to be limited to lower level behavioral effects. NMFS does not anticipate that serious injury or mortality would occur to ESA-listed species, even in the absence of mitigation and no serious injury or mortality is authorized. As discussed in the
There is no designated critical habitat for any ESA-listed marine mammals within the survey area.
The status of the North Atlantic right whale population is of heightened concern and, therefore, merits additional analysis. NMFS has rigorously assessed potential impacts to right whales from this survey. We have established a 500-m shutdown zone for right whales which is highly precautionary considering the Level B harassment isopleth for the largest source utilized in the specified activities for this IHA was initially estimated at 178-m for the Applied Acoustics S-Boom Boomer. However, after accounting for beam width the maximum isopleth for this equipment is actually no greater than 64 m. We determined that the largest omnidirectional Level B harassment isopleth is more accurately estimated at a maximum of 141 m, and will be used on only 20 percent of vessel days. The next largest Level B isopleth is the GeoMarine Geo-Source 800tip which has a Level B harassment isopleth of 86 m. This device will be used for a maximum of 125 days. The remaining 273 days will utilize various HRG devices with Level B harassment isopleths ranging 63 m (Innomar SES-2000 Medium 100 Parametric Sub-Bottom Profiler) to 6 m (EdgeTech 424 sub-bottom profiler). When these smaller isopleths are taken into account the calculated take decreases from 100 to 47. With these smaller zones, monitoring by PSOs is expected to be highly effective. NMFS is also requiring Orsted to limit the number of survey vessels operating concurrently to no more than three in high-density areas (Lease Areas OCS-A 0486, 0487, 0500 and ECR areas to the north up to, but not including, coastal and bay waters) during high-density periods (March-June). This will reduce both the number and intensity of right whale takes. Additionally, the absence of right whale sightings detailed in a recent marine mammal monitoring report from Lease Area OCS-A 0500 and adjacent ECR corridors suggests that right whales are not common. Given these factors, we are confident in our decision to authorize 10 takes by Level B harassment. Due to the length of the survey and continuous night operations, it is conceivable that a limited number of right whales could enter into the Level B harassment zone without being observed. Although such an occurrence is not expected, any potential impacts to right whales would consist of, at most, low-level, short-term behavioral harassment in a limited number of animals and would have a negligible impact on the stock.
The planned survey area includes a fin whale feeding BIA effective between March and October. The fin whale feeding area is sufficiently large (2,933 km
The planned survey area includes a biologically important migratory area for North Atlantic right whales (effective March-April and November-December) that extends from Massachusetts to Florida (LaBrecque,
A UME is defined under the MMPA as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response.” UMEs are ongoing and under investigation for four species relevant to HRG survey area, including humpback whales, North Atlantic right whales, minke
As noted previously, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016 Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest numbers in Massachusetts, Maine, and New York. Preliminary findings in several of the whales have shown evidence of human interactions or infectious disease. Elevated North Atlantic right whale mortalities began in June 2017, primarily in Canada. Overall, preliminary findings support human interactions, specifically vessel strikes or rope entanglements, as the cause of death for the majority of the right whales. Elevated numbers of harbor seal and gray seal mortalities were first observed in July, 2018 and have occurred across Maine, New Hampshire and Massachusetts. Based on tests conducted so far, the main pathogen found in the seals is phocine distemper virus although additional testing to identify other factors that may be involved in this UME are underway.
Direct physical interactions (ship strikes and entanglements) appear to be responsible for many of the UME humpback and right whale mortalities recorded. The planned HRG survey will require ship strike avoidance measures which would minimize the risk of ship strikes while fishing gear and in-water lines will not be employed as part of the survey. Furthermore, the planned activities are not expected to promote the transmission of infectious disease among marine mammals. The survey is not expected to result in the deaths of any marine mammals or combine with the effects of the ongoing UMEs to result in any additional impacts not analyzed here. Accordingly, Ørsted did not request, and NMFS is not proposing to authorize, take of marine mammals by serious injury, or mortality.
The required mitigation measures are expected to reduce the number and/or severity of takes by giving animals the opportunity to move away from the sound source before HRG survey equipment reaches full energy and preventing animals from being exposed to sound levels that have the potential to cause injury (Level A harassment) and more severe Level B harassment during HRG survey activities, even in the biologically important areas described above. No Level A harassment is anticipated or authorized.
NMFS expects that most takes would primarily be in the form of short-term Level B behavioral harassment in the form of brief startling reaction and/or temporary vacating of the area, or decreased foraging (if such activity were occurring)—reactions that (at the scale and intensity anticipated here) are considered to be of low severity and with no lasting biological consequences. Since both the source and the marine mammals are mobile, only a smaller area would be ensonified by sound levels that could result in take for only a short period. Additionally, required mitigation measures would reduce exposure to sound that could result in more severe behavioral harassment.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized;
• No Level A harassment (PTS) is anticipated;
• Any foraging interruptions are expected to be short term and unlikely to be cause significantly impacts;
• Impacts on marine mammal habitat and species that serve as prey species for marine mammals are expected to be minimal and the alternate areas of similar habitat value for marine mammals are readily available;
• Take is anticipated to be primarily Level B behavioral harassment consisting of brief startling reactions and/or temporary avoidance of the survey area;
• Survey activities would occur in such a comparatively small portion of the biologically important area for north Atlantic right whale migration, that any avoidance of the survey area due to activities would not affect migration. In addition, mitigation measures to shut down at 500 m to minimize potential for Level B behavioral harassment would limit take of the species, resulting in a conservative estimate of 10 takes, in the form of 10 short-term exposures, which would not be expected to affect the reproduction or survival of any individuals, much less the stock. Similarly, due to the small footprint of the survey activities in relation to the size of a biologically important area for fin whales foraging, the survey activities would not affect foraging behavior of this species; and
• Planned mitigation measures, including visual monitoring and shutdowns, are expected to minimize the intensity of potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from Ørsted's planned HRG survey activities will have a negligible impact on the affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The numbers of marine mammals that we propose for authorization to be taken, for all species and stocks, would be considered small relative to the relevant stocks or populations (less than 17 percent for all authorized species).
Based on the analysis contained herein of the planned activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
The NMFS Office of Protected Resources is authorizing the incidental take fin, sei, sperm, and North Atlantic right whales which are listed under the ESA. Under section 7 of the ESA, BOEM consulted with NMFS GARFO on commercial wind lease issuance and site assessment activities on the Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New York and New Jersey Wind Energy Areas. NMFS GARFO issued a Biological Opinion concluding that these activities may adversely affect but are not likely to jeopardize the continued existence of fin, sei, sperm, and North Atlantic right whales. Upon request from the NMFS Office of Protected Resources, the NMFS GARFO will issue an amended incidental take statement associated with this Biological Opinion to include the takes of the ESA-listed whale species authorized through this IHA.
NMFS has issued an IHA to Ørsted for HRG survey activities effective one year from the date of issuance, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Department of the Navy, DoD.
Notice.
The United States (U.S.) Department of the Navy (DoN), after participating as a cooperating agency in the development and evaluation of the U.S. Bureau of Land Management's Final Environmental Impact Statement (EIS) for the Boardman to Hemingway Transmission Line Project (B2H Project), and carefully weighing the strategic, operational, and environmental consequences of the proposed action, announces its decision to adopt the Final EIS and implement real estate actions as set out in the selected alternative, identified as the Agency Preferred Alternative in the Final EIS dated November 2016.
DoN real estate actions would grant a 7.1 mile by 90-foot right of way easement to the Idaho Power Company to allow for construction and operation of a portion of the B2H project on Naval Weapons Systems Training Facility (NWSTF) Boardman, Oregon in exchange for the termination of an existing land use agreement and removal of transmission infrastructure held by Bonneville Power Administration (BPA) that occupies the same right-of-way.
The Agency Preferred Alternative route exits the proposed Longhorn Substation to the south, crossing the boundary of NWSTF Boardman at the northeastern corner and parallels the eastern boundary of NWSTF Boardman along the west side of Bombing Range Road for approximately 7.1 miles. At that point, the route crosses over Bombing Range Road to the east and exits Federal property. The route will avoid the Resource Natural Area B, a Washington ground squirrel Resource Management Area, and traditional cultural properties on NWSTF Boardman.
The complete text of the Record of Decision (ROD) for the DoN's real estate action is available at:
National Advisory Committee on Institutional Quality and Integrity (NACIQI), U.S. Department of Education.
Request for student nominees for appointment to serve on the National Advisory Committee on Institutional Quality and Integrity (NACIQI).
Per the United States Code at least one member of the NACIQI must be a student who, at the time of the appointment by the Secretary of Education, is attending an institution of higher education.
Nominations must be received no later than Friday, October 25, 2019.
You may submit nomination(s), including attachments via email to:
(A) On the basis of the individuals' experience, integrity, impartiality, and good judgment;
(B) From among individuals who are representatives of, or knowledgeable concerning, education and training beyond secondary education, representing all sectors and types of institutions of higher education; and
(C) On the basis of the individuals' technical qualifications, professional standing, and demonstrated knowledge in the fields of accreditation and administration of higher education. Per 20 U.S.C. 1011d at least one member of the NACIQI must be a student who, at the time of the appointment by the Secretary of Education, is attending an institution of higher education. The
• The establishment and enforcement of the standards of accrediting agencies or associations under subpart 2 of part H of Title IV, HEA.
• The recognition of specific accrediting agencies or associations.
• The preparation and publication of the list of nationally recognized accrediting agencies and associations.
• The eligibility and certification process for institutions of higher education under Title IV of the HEA, together with recommendations for improvements in such process.
• The relationship between (1) accreditation of institutions of higher education and the certification and eligibility of such institutions, and (2) State licensing responsibilities with respect to such institutions.
• Any other advisory functions relating to accreditation and institutional eligibility that the Secretary may prescribe by regulation.
• A cover letter addressed to the Secretary as follows: Honorable Betsy DeVos, Secretary of Education, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202. In the letter, please state your reason(s) for the nomination;
• A copy of the nominee's current resume
• Contact information for the nominee (name, address, contact phone number, and email address)
In addition, the cover letter must include a statement affirming the nominee (if you are nominating someone other than yourself) has agreed to be nominated and is willing to serve on the NACIQI if appointed by the Secretary of Education. Nominees should be broadly knowledgeable about higher education and accreditation.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Hydrogen and Fuel Cell Technical Advisory Committee (HTAC). The Federal Advisory Committee Act requires notice of the meeting be announced in the
Hyatt Regency Hotel, 200 S Pine Ave., Long Beach, CA 90802.
Email:
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of decision and order.
The U.S. Department of Energy (“DOE”) gives notice of a Decision and Order granting Johnson Controls, Inc. (“JCI”) a waiver from specified portions of the DOE test procedure for determining the efficiency of specified central air conditioners (“CAC”) and heat pump (“HP”) basic models. JCI is required to test and rate specified basic models of its central air
The Decision and Order is effective on October 2, 2019. The Decision and Order will terminate upon the compliance date of any future amendment to the test procedure for central air conditioners and heat pumps located at 10 CFR part 430, subpart B, appendix M that addresses the issues presented in this waiver. At such time, JCI must use the relevant test procedure for this product for any testing to demonstrate compliance with the applicable standards, and any other representations of energy use.
Mr. Pete Cochran, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-33, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585-0103. Telephone: (202) 586-9496. Email:
In accordance with Title 10 of the Code of Federal Regulations (10 CFR 430.27(f)(2)), DOE gives notice of the issuance of its Decision and Order as set forth below. The Decision and Order grants JCI a waiver from the applicable test procedure at 10 CFR part 430, subpart B, appendix M for specified basic models of central air conditioners and heat pumps, provided that JCI tests and rates such products using the alternate test procedure specified in the Decision and Order. JCI's representations concerning the energy efficiency of the specified basic models must be based on testing according to the provisions and restrictions in the alternate test procedure set forth in the Decision and Order, and the representations must fairly disclose the test results. Distributors, retailers, and private labelers are held to the same requirements when making representations regarding the energy efficiency of these products. (42 U.S.C. 6293(c)).
Consistent with 10 CFR 430.27(j), not later than December 2, 2019, any manufacturer currently distributing in commerce in the United States products employing a technology or characteristic that results in the same need for a waiver from the applicable test procedure must submit a petition for waiver. Manufacturers not currently distributing such products in commerce in the United States must petition for and be granted a waiver prior to the distribution in commerce of those products in the United States. Manufacturers may also submit a request for interim waiver pursuant to the requirements of 10 CFR 430.27.
The Energy Policy and Conservation Act of 1975, as amended (“EPCA”),
Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6291), energy conservation standards (42 U.S.C. 6295), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that product (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the product complies with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The test procedure for central air conditioners and heat pumps is contained in the Code of Federal Regulations (“CFR”) at 10 CFR part 430, subpart B, appendix M,
Under 10 CFR 430.27, any interested person may submit a petition for waiver from DOE's test procedure requirements. DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(f)(2). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures.
On April 6, 2017, JCI filed a petition for waiver and an application for interim waiver from certain testing requirements of Appendix M. Subsequently, JCI filed an amended petition for waiver and application for interim waiver on June 5, 2018. The amended petition serves as the basis for this Decision and Order. On August 13, 2018, DOE published a notice announcing its receipt of the petition for waiver, granting JCI an interim waiver, and requesting public comment on the waiver (“Notice of Petition for Waiver”). 83 FR 40011.
According to JCI, the basic models listed in its petition, which use R-407C as the refrigerant, are offered as new, matched systems and testing them as outdoor units with no match (as required by the DOE test procedure) will overstate their energy usage, resulting in materially inaccurate comparative data. JCI states that it has certified more than 1,100 unique CAC combinations that use R-407C as a refrigerant. The certified ratings range from 14 to 16
In response to the Notice of Petition for Waiver, DOE received substantive comments
All of the commenters, with the exception of Rheem,
As a result, these commenters believe that the current test procedure, which requires the basic models listed in the petition to be tested as outdoor units with no match, measures the energy efficiency of these models during a representative average use cycle. Thus, if the petition is granted, consumers and other entities, such as utilities, will not be able to rely on JCI's certified efficiency ratings when making decisions based on the energy consumption of the basic models. For instance, Lennox states that “JCI provided no evidence that 407C condensers are predominantly installed in consumers' homes matched with 407C coils. Therefore, DOE's applying the No Match Requirements to JCI's 407C condensers will yield representative test results of average consumer use, as required by statute.” (Lennox, No. 26, p. 9) The CA-IOUs state that “[s]hould this waiver be granted, it will not be possible to know the energy usage of JCI's affected units when paired with existing installed indoor coils.” (CA-IOUs, No. 25, p. 2)
Some commenters also state that granting the waiver would have the effect of lowering the energy conservation standard for the basic models listed in JCI's petition. For example, ASAP states that “[g]ranting this waiver would be tantamount to a lowering of the standard for products that use a particular refrigerant” and would “circumvent the anti-backsliding clause” of EPCA. (ASAP, No. 27, p. 2)
As discusse d above, JCI asserts that the basic models listed in the petition, which use R-407C as the refrigerant, are installed as both replacement outdoor units in existing installations and as new, matched systems. As such, testing JCI's R-407C units under the outdoor unit with no match provisions results in materially inaccurate comparative data for both outdoor unit only replacement installations and new, matched system installations. In order to evaluate JCI's claim that these basic models are installed as both replacement outdoor units and as new, matched systems, DOE reviewed JCI's public-facing materials, including marketing materials and technical guides for the basic models listed in the petition, comments received in response to the Notice of Petition for Waiver, and other information submitted by JCI.
Under 10 CFR 430.27(f)(2), DOE will grant a waiver for one of two reasons: (1) The basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures; or (2) the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. JCI asserts that application of the outdoor unit with no match testing provisions in Appendix M to the basic models listed in its petition would evaluate these models in a manner so unrepresentative of their true energy consumption characteristics as to provide material inaccurate comparative data. To illustrate its claim of materially inaccurate comparative data, JCI refers to the difference in how energy consumption is determined under DOE's current test procedure between the basic models listed in the petition, which use R-407C as a refrigerant, and other CAC and HP systems that use R-410A as the refrigerant. Under DOE's current test procedure, the energy efficiency rating of an R-407C unit is calculated as an outdoor unit with no match, regardless of whether it may actually be installed as a new, matched system, while the energy efficiency rating of an R-410A unit is calculated as a new, matched system, regardless of whether it may actually be installed as an outdoor unit only replacement. There is a significant difference in calculated energy efficiency between these two approaches. JCI states that the certified ratings for its R-407C units range from 14 to 16 SEER when tested as new, matched systems, but would fall below the minimum standard of 13 SEER if tested as outdoor units with no match.
DOE acknowledged this disparate treatment in response to a comment submitted by JCI during the last test procedure rulemaking. “[I]t has always been the case that some outdoor units are installed as replacements for failed outdoor units. However, in most cases an outdoor unit model would also be sold in substantial numbers as a combination with indoor units. This is in contrast to R-407C units, which are predominantly sold in scenarios in which the outdoor unit is replaced, and the indoor unit is not replaced. Hence the test procedure is representative of an average use cycle for R-410A units without requiring that it be tested as a unit with no match.” 82 FR 1426, 1434 (Jan. 5, 2017).
Having reexamined this issue in light of JCI's petition for waiver, DOE has determined that such disparate treatment between systems that use R-407C as a refrigerant and systems that use other refrigerants, such as R-410A, is unwarranted and results in materially inaccurate comparative data. Testing R-407C units differently from other units prevents consumers from making apples-to-apples comparisons about energy consumption and operating costs. Consumers cannot make informed decisions when, unbeknownst to them, they may be comparing the cost and performance of CAC and HP systems based on different installation scenarios. Furthermore, even if it is assumed that a representative average use cycle for CACs and HPs should account for outdoor unit only replacement scenarios, there is no reason to exclude certain outdoor units from such treatment simply because these units are also sold in “substantial” numbers as new, matched systems. Being sold in “substantial” numbers as new, matched systems does not preclude these units from also being sold in significant numbers as replacements for failed outdoor units. In fact, according to information provided by the Air-conditioning, Heating and Refrigeration Institute (AHRI) during the last energy conservation standards rulemaking for CACs and HPs, approximately 25 percent of all replacement installations, regardless of refrigerant used, are outdoor unit only replacements. 82 FR 1786, 1815 (Jan. 6, 2017). This percentage was significant enough for DOE to adjust its energy use analysis in the energy conservation standards rulemaking to account for the increased energy consumption of outdoor unit only replacement installations.
Finally, with respect to ASAP's comment that granting JCI's waiver request would circumvent the anti-backsliding provision in EPCA, DOE notes that the anti-backsliding provision prohibits DOE from issuing any amended standards that would increase the maximum allowable energy use or decrease the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Even if it is assumed that this provision applies to test procedure waivers, ASAP's argument that granting JCI's waiver request would result in backsliding is disingenuous. Under 42 U.S.C. 6293(e), if an amended test procedure alters the measured energy efficiency of a covered product, DOE is required to make a corresponding adjustment to the energy conservation standard to ensure that a previously compliant covered product would remain compliant and a previously non-compliant covered product would remain non-compliant. When DOE issued the current test procedure for CACs and HPs on January 5, 2017, DOE made a determination that the amended test procedure provisions from which JCI is seeking a waiver would not alter the measured energy efficiency of these covered products, and, as a result, did not adjust the energy conservation standard for CACs and HPs. 82 FR 1426, 1428. If this determination was correct, granting JCI's petition for waiver would have no effect on the measured energy efficiency of the basic models listed in the petition and, therefore, backsliding of the standard would not be possible. As a result, ASAP's argument is that DOE's determination in the test procedure rulemaking was incorrect and these test procedure provisions do alter the measured energy efficiency of the basic models listed in JCI's petition. This argument, concerning the difference in measured energy efficiency between DOE's prior and current test procedures, has no bearing on whether the current test procedure evaluates the basic models listed in the petition in a manner so unrepresentative of their true energy consumption characteristics as to provide materially inaccurate comparative data.
For the reasons explained here and in the Notice of Petition for Waiver, DOE understands that absent a waiver, the basic models identified by JCI in its petition will be evaluated in a manner so unrepresentative of their true energy consumption characteristics when installed as new, matched systems as to provide materially inaccurate comparative data. DOE has reviewed the alternate test procedure suggested by JCI and concludes that it is representative of the energy consumption of these basic
This Decision and Order is applicable only to the basic models listed and does not extend to any other basic models. DOE evaluates and grants waivers for only those basic models specifically set out in the petition, not future models that may be manufactured by the petitioner.
JCI may request that the scope of this waiver be extended to include additional basic models that employ the same technology as those listed in this waiver. 10 CFR 430.27(g). JCI may also submit another petition for waiver from the test procedure for additional basic models that employ a different technology and meet the criteria for test procedure waivers. 10 CFR 430.27(a)(1).
DOE notes that it may modify or rescind the waiver at any time upon DOE's determination that the factual basis underlying the petition for waiver is incorrect, or upon a determination that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. 10 CFR 430.27(k)(1). Likewise, JCI may request that DOE rescind or modify the waiver if the company discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 430.27(k)(2).
DOE recognizes that commenters have raised valid concerns about the need to provide information regarding the energy consumption of CACs and HPs when a new outdoor unit is paired with an existing, older indoor unit. DOE is mindful that consumers need accurate comparative data in order to make informed purchasing decisions. Under DOE's waiver regulations, DOE is required to revise the CAC and HP test procedure so as to eliminate the need for this waiver. 10 CFR 430.27(l). During this process, DOE will explore all options within its statutory authority to provide energy consumption information to consumers that accounts for these replacement scenarios for all CAC and HP systems in the market, regardless of refrigerant.
In accordance with 10 CFR 430.27(f)(2), DOE consulted with the Federal Trade Commission (“FTC”) staff concerning JCI's petition for waiver.
After careful consideration of all the material that was submitted by JCI for the models identified in the petition and the comments received, in this matter, it is ordered that:
(1) JCI must, as of the date of publication of this Order in the
(A) GAW14L18C2*S, GAW14L24C2*S, GAW14L30C2*S, GAW14L36C2*S, GAW14L42C2*S, GAW14L48C2*S, GAW14L60C2*S
(2) The applicable method of test for the JCI basic models listed in paragraph (1)(A) is the test procedure for CACs and HPs prescribed by DOE at 10 CFR part 430, subpart B, appendix M, except that 10 CFR 429.16(a)(3)(i) shall be as detailed below. All other requirements of 10 CFR 429.16 remain applicable.
In § 429.16(a),
(3)
(3)
(4) This waiver shall remain in effect consistent with the provisions of 10 CFR 430.27.
(5) This waiver is issued on the condition that the statements, representations, and documentation provided by JCI are valid. DOE may rescind or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. 10 CFR 430.27(k)(1). Likewise, JCI may request that DOE rescind or modify the waiver if JCI discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 430.27(k)(2).
(6) Granting of this waiver does not release JCI from the certification requirements set forth at 10 CFR part 429.
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB) Chairs. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Sun Valley Inn, 2 Sun Valley Road, Sun Valley, Idaho 83353.
David Borak, EM SSAB Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585; Phone: (202) 586-9928, or email:
Office of Environment, Health, Safety and Security, Department of Energy.
Notice.
On June 11, 2019, the Defense Nuclear Facilities Safety Board issued Recommendation 2019-2,
Comments, data, views, or arguments concerning the Secretary's response are due on or before November 1, 2019.
Please send to: Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW, Suite 700, Washington, DC 20004.
Mr. Christopher Chaves, Office of the Departmental Representative to the Defense Nuclear Facilities Safety Board, Office of Environment, Health, Safety and Security, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, or telephone number (301) 903-5999, or email
On June 11, 2019, the Defense Nuclear Facilities Safety Board issued Recommendation 2019-2,
Signed in Washington, DC on September 24, 2019.
The Honorable Bruce Hamilton
Defense Nuclear Facilities Safety Board
625 Indiana Avenue NW, Suite 700
Washington, DC 20004
Dear Mr. Chairman:
I appreciate the Defense Nuclear Facilities Safety Board's (DNFSB) continued support to the Department of Energy's National Nuclear Security Administration (DOE/NNSA) in the safe operation of our facilities. I am committed to ensuring DOE/NNSA continues to remain fully compliant in the safe operations of our defense nuclear facilities in a manner that provides adequate protection to the public, our workforce, and the environment. Secretary Perry has requested that I respond to DNFSB Recommendation 2019-2,
DOE/NNSA's safety programs and policies, and their effective implementation by our well-trained workforce, provide reasonable assurance that adequate protection of public health and safety is provided. Focused ongoing actions at the Tritium Facilities at SRS adequately address DNFSB concerns outlined in Recommendation 2019-2 and make the need for additional actions in response to a DNFSB Recommendation unnecessarily duplicative of that effort, and would, therefore, detract from our continued progress. Our commitment to safety in the Tritium Facilities remains un-wavering, and there has been no change in the conservative safety philosophy in the operation of the Tritium Facilities.
The Department believes that the current Tritium Facilities' documented safety analysis contains appropriate safety significant controls and the new analysis, which is nearing completion, will strengthen that safety posture. The
DOE/NNSA would be willing to brief DNFSB on our actions outlined in the enclosure and keep the Board updated over time. We appreciate the Board's perspectives and look forward to the continued positive interactions with you and your staff.
If you have any questions, please contact Ms. Nicole Nelson-Jean, Manager of the Savannah River Field Office, at (803) 208-3689.
Sincerely,
Enclosure
Department of Energy (DOE) Secretary Response to the June 11, 2019, DNFSB Recommendation 2019-2,
Procedural reductions in the Material At Risk (MAR) have been completed in the Tritium Facilities. Each operating facility that makes up the Tritium Facilities has an associated MAR listed in the Documented Safety Analysis (DSA). When it was understood that the new analysis would increase the dose consequences, Savannah River Nuclear Solutions (SRNS) reduced tritium quantities in such facility through the Automated Reservoir Management System. These reductions are reflected in the DSA currently advancing through the approval process by the Department's approval process.
Over the past several years, the Department of Energy's National Nuclear Security Administration (DOE/NNSA) and the Savannah River Site (SRS) Management and Operating partner, SRNS, have taken actions to continue improving the Tritium Facilities safety posture. A new hazards analysis has been conducted along with a revision to the DSA. This new analysis has further emphasized identifying engineered controls over administrative controls. The Board's technical staff was recently provided a draft of the new DSA. The Department notes that even with the extreme conservatism in the analytical parameters, including a postulated simultaneous release of all tritium, from all the multiple facilities within 20 minutes; the postulated consequences to the public remain below the Evaluation Guideline of DOE-STD-3009-94,
In addition, hypothetical, worst-case modeling does not account for any Emergency Response exposure reduction actions, personnel self-protection actions, nor any subsequent response actions to mitigate the potential consequences. Based on the current DSA, and the new DSA in review, reasonable assurance of adequate protection is ensured and the risk to the public remains very low. It is anticipated that the new DSA will be approved in 2019. The actions taken in completing the DSA aligns with addressing the concerns raised in Recommendation 2019-2.
DOE/NNSA actions and plans that would have responded to this Sub-recommendation are complete or underway and therefore are considered to have met the objectives of this Sub-recommendation. DOE/NNSA is willing to brief the DNFSB on these actions on a recurring basis.
As noted in the Recommendation, DOE/NNSA committed in 2011 to develop a new analytical model for dose consequences for SRS. In 2011, DOE/NNSA outlined a plan to update the atmospheric dispersion model, which was completed in 2014. Implementation of that new analysis began shortly thereafter and included a review of the safety controls selection and hierarchy. DOE/NNSA decided to combine all the Tritium Facilities' safety bases and to conduct a holistic revision to the DSA. The new analysis placed additional emphasis on engineered controls over administrative controls. After an extensive review, DOE/NNSA directed changes and updates to the draft DSA, including development of a formal strategy that will continue to strengthen the controls to protect co-located workers (CWs) from large energetic events postulated by the safety analysis. The revised DSA was delivered to DOE/NNSA in November 2018. Subject matter experts from across DOE/NNSA have completed a review of the resubmitted DSA and have generated a number of additional items requiring further action. The actions taken in completing the DSA aligns with addressing the concerns raised in Recommendation 2019-2.
The new DSA includes a number of new credited features, including the 217-H Vault walls and fire damper, new Specific Administrative Controls (SACs) for fire water tank, and other new Fire Suppression Surveillances have been added. In addition, all current Programmatic Controls have been replaced by at least one SAC.
In 2018, recognizing the desire to reduce worker consequences, DOE/NNSA requested and received from SRNS a strategy for risk reduction to CWs (U-ESR-H-00163, Rev.0). This strategy describes the SRNS plans for additional structural analyses and control development, if required for the remaining facilities during a potential seismic event. This analysis will be used to determine suitability for upgrading the functional classification of additional controls. It also includes analysis for dose reduction (
Longer term plans include the construction of the Tritium Finishing Facility (TFF) capital line item project, to replace the aging HAOM 234-H facility with a seismically-qualified facility with a dedicated fire suppression system. The TFF project will mitigate potential risks to DOE/NNSA's Stockpile Stewardship Program stemming from housing operations in outdated facilities.
A formal Analysis of Alternatives (AoA) was performed and documented for the TFF project. The results of the AoA recommended the construction of new buildings instead of upgrading existing buildings that involve tritium operations. This will promulgate safety in design integration and the new TFF facilities will meet current DOE requirements. It is anticipated the TFF project will meet the Critical Decision-1 project milestone in early FY 2020. The current confinement strategy for TFF is based on the use of multiple
• Robust containers storing the MAR.
• Robust Natural Phenomena Hazard Design Category-3 (NDC-3) structures preventing building collapse and impacts to containers.
• Robust NDC-3 fire suppression systems preventing the spread of a fire and mitigating the consequences of a release.
• Exhaust Ventilation with elevated release to mitigate consequences to the CWs. Based on application of passive barriers and active controls, the mitigated consequence to both the public and CW from a release of radiological materials is either prevented or maintained at levels well below the Evaluation Guidelines.
As described above, DOE/NNSA is committed to improving the safety posture of the Tritium Facilities. The actions already taken and those in progress meet the requirements of our Directives. No additional actions are required at this time.
DOE/NNSA actions and plans that would have responded to this Sub-recommendation are complete or underway and therefore are considered to have met the issues highlighted and meet the intent of the recommendation. DOE/NNSA would be willing to brief the DNFSB on these actions on a recurring basis.
Sub-Recommendation #3 discusses the Site's capability to respond to a Tritium event. The SRS and Tritium Facilities Emergency Management programs have made significant improvements over the past several years. The Emergency Preparedness (EP) program meets DOE Directives and is adequate to continue protecting the SRS workers and the surrounding public. We have recently evaluated the SRS safety management programs and found them to be adequate.
The current Emergency Management program provides the appropriate training required for individuals to respond to alarms, abnormal operations, and emergencies across SRS. The Tritium Facilities EP program maintains a fully qualified team which performs approximately 50 drills per year to train and validate the organizations ability to respond to various scenarios, from weather induced incidents to large energetic events. SRS EP support organizations, like the SRS Fire Department (FD), are trained and routinely evaluated to ensure that they can properly respond to an event in any facility across the site. For example, during the 2018 Site Exercise, the SRS emergency response team responded to a hypothetical complex multi-facility and multi-contractor event that included H-Area, Tritium, and H-Tank Farm. Site level evaluated exercise responses routinely involve multiple local, county, state, and federal agencies in the response efforts. In a trend to further challenge all response organizations, this latest exercise tested the Site's Emergency Response Organization (ERO) to manage a complex event with potential off-site consequences. There were issues identified in the exercise that SRS has addressed and continues to address to improve the program, including identifying logistical challenges in the movement of people from impacted areas and then conducting appropriately scoped drills to validate the effectiveness.
DOE-SR, as the landlord at SRS, has overall responsibility of the Emergency Management Program for the site. As a continuous improvement item, DOE-SR, in conjunction with DOE/NNSA, will perform an evaluation of the items listed in the Sub-recommendation 3. This evaluation will assess among other things the ability and preparedness of community emergency and medical resources. Results of this evaluation will be shared with the Board. Additionally, DOE-SR will reassess the program if Tritium source documents were to substantially change in the future.
DOE/NNSA actions and plans that would have responded to this recommendation are complete, underway, or planned and therefore are considered to have met the objectives of this Sub-recommendation. DOE/NNSA is willing to brief the DNFSB on these actions and keep the Board updated on a reoccurring basis.
In summary, DOE/NNSA has already initiated, and in some cases completed, the actions the DNFSB recommends and SRS tritium operations are providing adequate protection of public safety. Many significant long-term projects to enhance safety in SRS tritium operations are nearing completion. Notably, the ongoing major construction project to replace the HOAM Tritium Facilities with new, modern, and robust facilities is underway and is being supported by the Department and Congress.
These activities are significant and are the proper implementation of DOE/NNSA safety improvements at SRS. Therefore, DOE/NNSA concludes that the most efficient, effective, and quickest way to improve safety at the SRS Tritium Facilities is to continue with the current approach and path forward. As previously noted, DOE/NNSA actions and plans that would have responded to this recommendation are complete or underway and therefore are considered to have met the issues highlighted and meet the intent of the recommendation.
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF High Energy Physics Advisory Panel (HEPAP). The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
Thursday, November 21, 2019; 9:00 a.m. to 6:00 p.m., Friday, November 22, 2019; 8:30 a.m. to 4:00 p.m.
Bethesda Doubletree, 8120 Wisconsin Avenue, Bethesda, Maryland 20814.
Michael Cooke, Executive Secretary; High Energy Physics Advisory Panel (HEPAP); U.S. Department of Energy; Office of Science; SC-25/Germantown Building, 1000 Independence Avenue SW, Washington, DC 20585; Telephone: (301) 903-4140; email:
Office of Electricity, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Electricity Advisory Committee. The Federal Advisory Committee Act requires that public notice of these meetings be announced in the
National Rural Electric Cooperative Association, First floor conference room, 4301 Wilson Blvd., Arlington, Virginia 22203 (Ballston Metro Stop).
Christopher Lawrence, Office of Electricity, U.S. Department of Energy, Forrestal Building, Room 8G-017, 1000 Independence Avenue SW, Washington, DC 20585; Telephone: (202) 586-5260 or Email:
The meeting agenda may change to accommodate EAC business. For EAC agenda updates, see the EAC website at:
On December 29, 2017, Natco Products Corporation (Natco or licensee) filed a Notice of Intent (NOI) to file an application for a subsequent license for its Artic Project No. 3011 (project), pursuant to section 16.19 of the
On September 12, 2019, Natco filed a letter notifying the Commission of its intent to surrender its existing license for the project. Natco states in its filing that it is also withdrawing its NOI to file an application for a subsequent license.
Pursuant to section 16.25(a) of the Commission's regulations, when an existing licensee, having previously filed an NOI to file a license application for a project, subsequently does not file a license application, the Commission must solicit applications from potential applicants other than the existing licensee.
Any party interested in filing a license application or exemption (
Questions concerning the process for filing an NOI should be directed to John Baummer at 202-502-6837 or
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing motions to intervene and protests, comments, recommendations, terms and conditions, and prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
The Commission strongly encourages electronic filing. Please file motions to intervene and protests, comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is ready for environmental analysis.
l. The existing Woonsocket Falls Project utilizes water from an impoundment that is created by the U.S. Army Corps of Engineers' (Corps) Woonsocket Falls Dam. The project consists of: (1) A 14-foot-wide, 20.5-foot-high concrete intake structure located about 60 feet upstream of the Woonsocket Falls Dam and fitted with a 12.4-foot-wide, 23.5-foot-high steel trash rack having 3.5-inch clear bar spacing; (2) a 275-foot long, 12-foot-wide, 10-foot-high concrete penstock; (3) a steel headgate integral with the powerhouse; (4) a 65-foot-long, 25-foot-wide, 20-foot-high concrete powerhouse containing one adjustable blade turbine-generator unit with an authorized capacity of 1,200 kilowatts; (5) a 50-foot-long, 12.5-foot-diameter steel draft tube; (6) an approximately 50-foot-long, 20-foot-wide, 15-foot-deep tailrace; (7) a 35-foot-long, 4.16 kilovolt (kV) generator lead line, a 4.16/13.8-kV step-up transformer, and a 1,200-foot-long, 13.8-kV transmission line connecting the project generator to the regional grid; and (8) appurtenant facilities.
The Woonsocket Falls dam and impoundment are owned and operated by the Corps for flood control purposes. The dam is equipped with four radial gates that typically remain closed for all flows less than 2,300 cubic feet per second (cfs). When river flow is less than 2,300 cfs, the impoundment is maintained at a water surface elevation of 147.5 feet North American Vertical Datum of 1988 (NAVD88). When river flow is greater than 2,300 cfs, the Corps begins opening the radial gates to maintain a water surface elevation of 147.3 feet NAVD88.
The dam and impoundment are operated in a run-of-river mode. When generating, the City conveys water through the intake structure on the east bank of the river, into the penstock and project powerhouse, and then discharges the water to the project tailrace and the Blackstone River.
The project bypasses approximately 360 feet of the Blackstone River and there is currently no required minimum
The City proposes to: (1) Operate the impoundment in a run-of-river mode pursuant to an operating plan and Memorandum of Agreement (MOA) with the Corps; (2) provide a year-round minimum flow of 20 cfs to the bypassed reach pursuant to an operating plan and MOA with the Corps; (3) provide upstream eel passage; and (4) implement nighttime turbine shutdowns during the downstream eel passage season to protect eels during passage.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title PROTEST, MOTION TO INTERVENE, COMMENTS, REPLY COMMENTS, RECOMMENDATIONS, TERMS AND CONDITIONS, or PRESCRIPTIONS; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
o. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
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The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. This application is not ready for environmental analysis at this time.
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The Village proposes to continue operating the project in a run-of-river
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
You may also register online at
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that on September 25, 2019, pursuant to Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission's (Commission) 18 CFR 385.206 (2019), Part 343 of the Commission's Rules and Regulations, 18 CFR 343,
Pilot certifies that copies of the complaint were served on the contacts for Colonial as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the eFiling link at
This filing is accessible on-line at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of tentative approval.
Notice is hereby given that the Environmental Protection Agency (EPA) has tentatively approved a revision to the state of Minnesota's Public Water System Supervision Program under the federal Safe Drinking Water Act (SDWA) by adopting the Revised Total Coliform Rule. The EPA has determined that this revision is no less stringent than the corresponding federal regulation. Therefore, the EPA intends to approve this revision to the state of Minnesota's Public Water System Supervision Program, thereby giving Minnesota Department of Health primary enforcement responsibility for this regulation. This approval action does not extend to public water systems in Indian Country. By approving this rule, EPA does not intend to affect the rights of federally recognized Indian Tribes in Minnesota, nor does it intend to limit existing rights of the State of Minnesota.
Any interested party may request a public hearing on this determination. A request for a public hearing must be submitted by November 1, 2019. The EPA Region 5 Administrator may deny frivolous or insubstantial requests for a hearing. However, if a substantial request for a public hearing is made by November 1, 2019, EPA Region 5 will hold a public hearing, and a notice of such hearing will be published in the
If EPA Region 5 does not receive a timely and appropriate request for a hearing and the Regional Administrator does not elect to hold a hearing on her own motion, this determination shall become final and effective on November 1, 2019 and no further public notice will be issued.
All documents relating to this determination are available for inspection at the following offices between the hours of 9 a.m. and 4 p.m., Monday through Friday, except for official holidays: Minnesota Department of Health, Drinking Water Protection Section, 625 N Robert St., St. Paul, MN 55164; and the U.S. Environmental Protection Agency Region 5, Ground Water and Drinking Water Branch (WG-15J), 77 W Jackson Blvd., Chicago, IL 60604.
Janet Kuefler, EPA Region 5, Ground Water and Drinking Water Branch, at the address given above, by telephone at 312-886-0123, or at
Section 1413 of the Safe Drinking Water Act, 42 U.S.C. 300g-2, and the federal regulations implementing Section 1413 of the Act set forth at 40 CFR part 142.
Environmental Protection Agency (EPA).
Notice.
EPA is announcing the availability of and soliciting public comment on the draft document, “Antimicrobial Performance Evaluation Program (APEP): A (Draft) Risk-Based Strategy to Ensure the Effectiveness of Hospital-Level Disinfectants” (hereafter referred to as the draft Strategy). This draft Strategy was developed by the EPA Office of Chemical Safety and Pollution Prevention (OCSPP) in response to the EPA Office of Inspector General (OIG) report titled: “EPA Needs a Risk-Based Strategy to Assured Continued Effectiveness of Hospital-Level Disinfectants.” The draft Strategy provides a framework to ensure that registered hospital-level disinfectants and tuberculocide products continue to meet Agency efficacy standards once they are in the marketplace.
Comments must be received on or before December 2, 2019.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2018-0265, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the general public. This action may be of interest to health care/hospital professionals and all entities who have EPA registered antimicrobial products that are available in the marketplace, particularly those with products that make hospital disinfectant claims (
This action is issued under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136
EPA is announcing the availability of and opportunity for public comment on the document, titled “Antimicrobial Performance Evaluation Program (APEP): A (Draft) Risk-Based Strategy to Ensure the Effectiveness of Hospital-Level Disinfectants.”
The following should be considered when preparing comments for submission to EPA:
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On September 19, 2016, the EPA Office of Inspector General (OIG) issued a report (No. 16-P-0316) titled “EPA Needs a Risk-Based Strategy to Assured Continued Effectiveness of Hospital-Level Disinfectants.” In this report, the OIG provided two recommendations: (1) Suspension of the Agency's Antimicrobial Testing Program (ATP) until EPA completes the reregistration process for antimicrobial pesticides; and (2) the development of a risk-based strategy to ensure the effectiveness of hospital-level disinfectants once products are in the marketplace.
The OIG recommended that the strategy, at a minimum, include: (1) A framework for periodic testing after product registration; (2) a program scope that is flexible and responsive to current public health risks; (3) risk factors for selecting products to be tested; (4) a method/process for collecting samples for testing; and (5) a date to begin the risk-based post-registration testing. In response to the first recommendation, EPA suspended the ATP in November 2017.
EPA developed the draft Strategy based on the general recommendations provided by the OIG. The Agency held a public listening session on June 21, 2018 to seek preliminary input from stakeholders on their early thoughts for the development of the draft Strategy. The materials presented during the listening session were published and made available for public comment. The materials presented during the listening session as well as all submitted public comments are available at
This draft Strategy employs a risk-based approach to inform the Agency on the prioritization and selection of hospital-level disinfectants and associated label claims for testing. The proposed risk-based criteria consist of the following in order of priority: (1) Product label claims for specific microbes and disease prevalence data; (2) evaluation of uncommon label claims and unique product application processes; and (3) evaluation of products tested using new and/or recently revised methods. The following additional refinement factors may also be considered to further prioritize product selection and testing: (a) Issues identified during post-registration, product reregistration, and registration review; (b) trends observed under the previous testing program (ATP); and (c) products with high production volumes. Improving the product selection process and evaluating specific label claims of critical importance to public health are key features of the proposed testing program.
The Agency is considering the following two options individually or in combination for obtaining samples for testing: (1) EPA purchase of products in the marketplace, and (2) product samples provided by the registrant. Several options for allocating efficacy and chemistry testing resources may be utilized individually or in combination; these options include: (1) Office of Pesticide Programs Microbiology Laboratory and the Analytical Chemistry Laboratory, (2) interagency agreements and contracts; (3) third party verification testing; and (4) registrant testing; and/or Data Call-Ins. EPA proposes to issue multi-year workplans two years prior to implementation to allow for public review and comment. At the end of testing, the Agency will provide the registrant with a memo summarizing the results and next steps attached to the Biological Report of Analysis detailing product specific results. A summary table will be
The Agency will maintain flexibility responding to evolving healthcare issues that may require the risk factors to be updated periodically as new, relevant information becomes available. The Agency is soliciting feedback on the proposed draft Strategy to include specific questions (Unit III.B). As necessary, respondents may propose alternatives to the recommendations described in the draft Strategy, and the Agency will consider them for inclusion appropriateness on a case-by-case basis.
At places in these guidance documents, the Agency uses the word “should.” In this document, use of “should” with regard to an action means that the action is recommended rather than required.
The Agency is particularly interested in input from all interested stakeholders related to the following questions:
1. Please comment on the proposed risk factors and refinements, their proposed prioritization, their strengths and limitations, and recommendations for other risk factors not considered.
2. Are the options provided for sample collection suitable for the purpose of the testing program, and if not, what approaches would you suggest to optimize sample collection. Please provide advantages and disadvantages to your recommendations as appropriate.
3. Should the Agency and/or stakeholders conduct the laboratory evaluation (formulation chemistry and product efficacy) of disinfectant products? Provide examples to support your opinions and itemize situations where one approach would be more favorable versus the other.
4. Please comment on the flexibility and feasibility of the example workplan approach (See Appendix A, draft Strategy).
5. Please comment on the proposed communication strategy to convey test results to registrants and the general public including the preferred frequency of updates.
6. Please provide suggested routes for resolution of efficacy failures. Previously, these were addressed by “regulatory fixes” to include retesting, label amendments, etc.
Documents that are referenced in the draft Strategy document can be found at
Federal Accounting Standards Advisory Board.
Notice.
Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules Of Procedure, as amended in October 2010, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has issued Statement of Federal Financial Accounting Standards 57,
The Statement is available on the FASAB website at
Ms. Monica R. Valentine, Executive Director, 441 G Street, NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments shall be submitted on or before December 2, 2019. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email:
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
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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 notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
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 indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in paragraph 7 of the Act.
Comments regarding each of these applications must be received at the Federal Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th and Constitution Avenue NW, Washington, DC 20551-0001, not later than October 18, 2019.
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The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The 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 indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)).
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 and Constitution Avenue NW, Washington, DC 20551-0001, not later than November 4, 2019.
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Office of Community Services; Administration for Children and Families; HHS.
Request for public comment.
The Administration of Children and Families (ACF), Office of Community Services (OCS) is requesting a three-year extension with minor changes of the Community Services Block Grant (CSBG) Annual Report (OMB No.: 0970-0492, expiration 1/31/2020). This request will support the currently utilized CSBG Annual Report, comprised of Modules 1-4, and incorporates performance management.
Copies of the proposed collection of information can be obtained and comments may be forwarded by emailing
112 Stat. 2729; 42 U.S.C. 9902(2).
Children's Bureau, Administration for Children and Families, HHS.
Request for public comment.
The Administration for Children and Families (ACF) is requesting a three-year extension of the previously approved forms that include satisfaction surveys; surveys to assess jurisdiction's foundational capacity; a workshop follow-up survey; webinar and online learning registration forms; and service-specific feedback forms and interview protocol (OMB Number: 0970-0494, expiration March 31, 2020). This request includes one new innovation survey, and requests minor changes to the webinar and online learning registration forms. Three instruments from the original approval are not included with this request. This requested extension relates to a second set of instruments, which are part of a larger data collection effort being conducted for the evaluation of the Child Welfare Capacity Building Collaborative. An extension request for the first group of evaluation instruments was submitted on April 24, 2019, (OMB Number: 0970-0484, FR, 84(79)).
Copies of the proposed collection of information can be obtained and comments may be forwarded by emailing
The Cross-Center Evaluation uses a longitudinal, mixed methods approach to evaluate Center services as they develop and mature over the study period. Multiple data collection strategies are used to efficiently capture quantitative and qualitative data to enable analyses that address each evaluation question. Cross-Center Evaluation data sources for this effort for which an extension is being sought include: (1) A foundational assessment to capture contextual data regarding the organizational health and functioning of child welfare agencies and courts; (2) a workshop follow-up survey that examines short-term and intermediate outcomes among CIPs that receive different levels of tailored services following continuous quality improvement (CQI) workshops; and (3) a tailored services satisfaction survey. Center-specific data sources for this effort include: (1) Registration forms for webinar registration and CapLearn, a learning management system; and (2) service-specific feedback forms and interviews, such as the Center for States Tailored Services interview protocol, the Center for States Innovation survey, and the Center for Courts Universal and Constituency Services survey.
42 U.S.C. 5106.
Administration for Children and Families (ACF), Department of Health and Human Services.
Notice; request for information.
As part of the Administration for Children and Families (ACF) commitment to supporting working families and promoting the healthy development and well-being of children, ACF is seeking input from the public and interested stakeholders on strategies to improve access to high quality, affordable child care in the U.S. Child care is one of the biggest expenses a family faces and can be a barrier to work. The average cost of center-based infant child care in 28 states is more than college tuition. At the same time, child care settings are a place of learning and education for children from the time they are infants and toddlers through their school-age years. Access to high quality learning opportunities lays the foundation for children's development and, ultimately,
Submit comments by December 2, 2019.
You may send comments, identified by [docket number and/or RIN number], by either of the following methods:
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Andrew Williams, Office of Child Care, Administration for Children and Families, 330 C Street SW, Washington, DC 20201; (202) 690-6782.
ACF is focused on finding innovative solutions to improve working families' access to affordable, high quality child care, as well as investigating how access to child care affects America's workforce, present and future. Child care is one of the biggest expenses a family faces and can be a barrier to work. The average cost of center-based infant child care in 28 states is more than college tuition.
At the same time, there is concern about the quality of child care and ensuring that child care settings are a place of education that promote and enhance child and youth development and well-being. High quality child care is a critical investment that pays off now, for parents by enabling them to work, and later, by supporting children's development and success in school and life. Research has shown that high quality learning environments are important for the cognitive, language, and social development of children,
Respecting the role that parents play in choosing the care that is best suited to their child's needs, and their own values, culture, and work schedules (including non-traditional hours), is critical. One-size fits all directives on what constitutes high quality child care can be counter-productive if they effectively limit the number of child care providers left in the market from which parents can choose. The number of licensed, small family child care homes (with a sole caregiver in a residential setting) fell by 35 percent from 2011 to 2017.
ACF is looking for an honest assessment of child care in the U.S. from the public and from a diverse array of stakeholder groups in order to inform the development of recommendations and/or future guidance. This includes parents who use child care, including parents of children with disabilities; small child care businesses, including family child care home providers; large and chain child care providers; pre-k groups; school administrators; child care regulators; state and local officials; employers; state and local chambers of commerce; foundations; faith-based and other community organizations; family child care networks; child care resource and referral agencies; universities and other institutions of higher education; child care workforce development organizations; economic development organizations; etc.
In order to make it easier for the public to comment, some of the questions on which ACF seeks public comment indicate specific stakeholder groups that might be particularly interested in the topic area. Commenters should identify the question to which they are responding by indicating the corresponding letter and number(s). We request commenters who identify barriers or policies to indicate, with a citation if possible, the source/level (
1. Building Supply of Child Care. Many communities across the country are experiencing a shortage of child care providers, particularly for certain kinds of care, such as for infants and toddlers, for children with disabilities, in rural areas, and during non-traditional hours. The agency seeks public feedback on:
a. Areas where there are specific barriers to child care providers entering the market, specifically what those barriers are (
b. Successful strategies for building the supply of high quality, affordable child care in underserved areas.
(Stakeholders: Child care providers, child care regulatory agencies, employers, economic and community development organizations, community organizations, state and local officials).
2. Improving Child Care Regulations. Child care licensing, regulatory and monitoring frameworks are the basis for ensuring that child care settings are healthy and safe for children. However, policies to regulate the health and safety of child care settings are created separately at the federal, state (
a. ACF seeks information on ways to ensure that regulatory and monitoring practices are not duplicative, inconsistent, and/or unintentionally driving up the cost of providing care, reducing availability, or pushing different types of providers, such as faith-based or home-based family child care providers, out of the market.
b. We also seek comment on the degree to which licensing requirements need to be tailored to the unique structures of different types of providers, and how monitoring for compliance could be used to support providers in their pursuit of providing high quality care.
(Stakeholders: Child care providers, child care regulatory agencies, economic and community development organizations, community-based organizations, state and local officials, parents).
3. Cultivating the Child Care Workforce. An important component of high quality child care, particularly for young children, is ensuring a nurturing, responsive relationship with caregivers.
a. ACF seeks public comment on what competency-based, short-term training models, apprenticeships, and stackable credentialing support (i) recruitment and (ii) professional development of early childhood educators.
(Stakeholders: Child care providers, institutions of higher education, child care provider associations, workforce development organizations, community organizations, businesses, child care administrators).
4. Developing Better Child Care Business Models. Most child care providers operate as a small business and may be nonprofit or for-profit, home-based or center-based, religious/faith-based or public institutions.
a. ACF seeks public comment on promising and innovative strategies for improving business practices and promoting business development of child care providers in the private sector. This includes improving access to financing for building facilities to assist new providers in entering the market.
b. Specifically, the agency is interested in comments about shared services alliances and consortia established to share overhead costs, improve fiscal and program management, and support access to preexisting training and resources for improving quality (including technology and non-personnel resources).
c. ACF is interested in learning how states and providers are adjusting in states and localities that have expanded public pre-kindergarten programs, and how child care providers are addressing the loss of preschool-aged slots which previously offset the costs of more expensive infant and toddler slots.
(Stakeholders: Child care providers, child care regulatory agencies, economic and community development organizations, family child care networks, community organizations, businesses, state and local chambers of commerce).
The public portion of financing for child care and early education in the United States involves multiple programs and funding streams, administered by various agencies at the federal, state, and local levels, often with different eligibility requirements and quality standards.
1. ACF seeks public comment on more effectively using existing federal and state resources to align and strengthen the delivery of child care and early education, and ideas for improving the financing framework to better support future investment. This includes recommendations to streamline or combine existing resources and programs in order to improve the overall participation of children in a mixed delivery system, improving program quality while maintaining availability of services, expanding parental choice, and enhancing access for children from low-income and disadvantaged families. The agency encourages commenters to think about the following:
a. Barriers that exist in the governance and funding structures of current programs that limit the most efficient use of local, state and federal resources.
b. Ideas for alternative financing frameworks or models that better leverage the significant investment in child care and early education funding already in place at the federal and state levels (outlined in the table below), including ideas that are outside the current framework or that re-envision existing programs.
c. Examples of innovative models and practices, especially those that include private sector investments and partnerships, that help to maximize child care resources.
This RFI is issued solely for information and planning purposes; it does not constitute a Request for Proposals (RFPs), applications, proposal abstracts, or quotations. This RFI does not commit the U.S. Government to contract for any supplies or services or to make a grant award. Further, we are not seeking proposals through this RFI and will not accept unsolicited proposals. Responders are advised that the U.S. Government will not pay for any information or administrative costs incurred in responding to this RFI; all costs associated with responding to this RFI will be solely at the interested party's expense. We note that not responding to this RFI does not preclude participation in any future procurement, if conducted. It is the responsibility of the potential responders to monitor this RFI announcement for additional information pertaining to this request. In addition, ACF will not respond to questions about the policy issues raised in this RFI.
We will actively consider all input as we develop future regulatory proposals or future sub-regulatory policy guidance. We may or may not choose to contact individual responders. Such communications would be for the sole purpose of clarifying statements in the responders' written responses. Contractor support personnel may be used to review responses to this RFI. Responses to this notice are not offers and cannot be accepted by the U.S. Government to form a binding contract or to issue a grant. Information obtained as a result of this RFI may be used by the U.S. Government for program planning on a non-attribution basis. Respondents should not include any information that might be considered proprietary or confidential. This RFI should not be construed as a commitment or authorization to incur cost for which reimbursement would be required or sought. All submissions become U.S. Government property and will not be returned. In addition, we will publicly post the public comments received, or a summary of those public comments.
Office of Planning, Research, and Evaluation; Administration for Children and Families; HHS.
Request for public comment.
The Administration for Children and Families (ACF), Office of Planning, Research, and Evaluation is requesting public comment on data collection activities as part of the Formative Evaluation of Family Unification Program (FUP) Vouchers for Youth Transitioning Out of Foster Care. The purpose of the request is to conduct information collection activities, including an online survey, interviews, and focus group discussions.
Copies of the proposed collection of information can be obtained and comments may be forwarded by emailing
Estimated Total Annual Burden Hours: 630.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a final guidance entitled “Bacterial Risk Control Strategies for Blood Collection Establishments and Transfusion Services to Enhance the Safety and Availability of Platelets for Transfusion; Guidance for Industry.” The guidance document provides blood collection establishments and transfusion services with recommendations to control the risk of bacterial contamination of room temperature stored platelets intended for transfusion. The recommendations in the guidance apply to all platelet products stored at room temperature in plasma or additive solutions, including platelets manufactured by automated methods (apheresis platelets), and Whole Blood derived (WBD) single and pooled (pre-storage and post-storage) platelets. Additionally, the guidance provides licensed blood establishments with recommendations on how to report implementation of manufacturing and labeling changes. The guidance announced in this notice finalizes the draft guidance of the same title dated December 2018.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• 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:
•
• 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
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the guidance to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-8010. See the
Tami Belouin, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
FDA is announcing the availability of a document entitled “Bacterial Risk Control Strategies for Blood Collection Establishments and Transfusion Services to Enhance the Safety and Availability of Platelets for Transfusion; Guidance for Industry.” The guidance document provides blood collection establishments and transfusion services with recommendations to control the risk of bacterial contamination of room temperature stored platelets intended for transfusion. The recommendations in the guidance apply to all platelet
Room temperature stored platelets are associated with a higher risk of sepsis and related fatality than any other transfusable blood component. The risk of bacterial contamination of platelets is a leading risk of infection from blood transfusion, and this risk has persisted despite the implementation of numerous interventions, including a commonly used method of a single culture test after collection of the platelets.
FDA has established regulations to address the control of bacterial contamination of platelets. Under 21 CFR 606.145(a), blood establishments and transfusion services must assure that the risk of bacterial contamination of platelets is adequately controlled using FDA approved or cleared devices, or other adequate and appropriate methods found acceptable for this purpose by FDA. The guidance provides recommendations to control the risk of bacterial contamination of platelets with 5-day and 7-day dating, including bacterial testing strategies (using culture-based and rapid bacterial detection devices) and the implementation of pathogen reduction devices. In the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on bacterial risk control strategies for blood collection establishments and transfusion services to enhance the safety and availability of platelets for transfusion. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR parts 601 and 610 have been approved under OMB control number 0910-0338; the collections of information in 21 CFR part 606 have been approved under OMB control number 0910-0116; and the collections of information in 21 CFR part 607 have been approved under OMB control number 0910-0052.
Persons with access to the internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) announces a forthcoming public advisory committee meeting of the Blood Products Advisory Committee (BPAC). The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues related to blood and products derived from blood. The committee will discuss scientific considerations for cold stored platelet products intended for transfusion. The meeting will be open to the public.
The meeting will be held on November 22, 2019, from 8:30 a.m. to 4:45 p.m.
Tommy Douglas Conference Center, 10000 New Hampshire Ave., Silver Spring, MD 20993. Answers to commonly asked questions about FDA advisory committee meetings, including information regarding special accommodations due to a disability, may be accessed at:
For those unable to attend in person, the meeting will also be webcast; please see the following link for webcast and other meeting information:
Christina Vert or Joanne Lipkind, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 6268, Silver Spring, MD 20993-0002, 240-402-8054,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Christina Vert (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at:
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In accordance with the Federal Advisory Committee Act, HHS is hereby giving notice that the Advisory Committee on Infant Mortality (ACIM or the Committee) has been renewed.
The effective date of the charter renewal is September 30, 2019.
David S. de la Cruz, Ph.D., MPH, Designated Federal Official (DFO), HRSA, Maternal and Child Health Bureau, 5600 Fishers Lane, 18N25, Rockville, Maryland 20857; 301-443-0543; or
ACIM is authorized by section 222 of the Public Health Service Act (42 U.S.C. 217a), as amended. The Committee is governed by provisions of Public Law 92-463, as amended, (5 U.S.C. App. 2), which sets forth standards for the formation and use of Advisory Committees. ACIM advises the Secretary of HHS on department activities and programs directed at reducing infant mortality and improving the health status of pregnant women and infants. ACIM represents a public-private partnership at the highest level to provide guidance and focus attention on the policies and resources required to address the reduction of infant mortality and the improvement of the health status of pregnant women and infants. With a focus on life course, the Committee also addresses disparities in maternal health to improve maternal health outcomes, including preventing and reducing maternal mortality and severe maternal morbidity. The Committee also provides advice on how best to coordinate the myriad of federal, state, local, and private programs and efforts that are designed to deal with the health and social problems impacting infant mortality and maternal health.
The charter renewal for ACIM was approved on September 30, 2019, which also stands as the filing date. Renewal of the ACIM charter gives authorization for the Committee to operate until September 30, 2021. A copy of the ACIM charter is available on the ACIM website at
Title 5, U.S.C. Section 4314(c)(4) of the Civil Service Reform Act of 1978, Public Law 95-454, requires that the appointment of Performance Review Board Members be published in the
The following persons may be named to serve on the Performance Review Boards from 2019 to 2021, which oversee the evaluation of performance appraisals and compensation for Senior Executive Service, Senior Level/Senior Technical, and Title 42 executive equivalent members of the Department of Health and Human Services.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Literature Selection Technical Review Committee.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The portions of the meeting devoted to the review and evaluation of journals for potential indexing by the National Library of Medicine will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B), Title 5 U.S.C., as amended. Premature disclosure of the titles of the journals as potential titles to be indexed by the National Library of Medicine, the discussions, and the presence of individuals associated with these publications could significantly frustrate the review and evaluation of individual journals.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Regents of the National Library of Medicine.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and 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.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
The Drug Addiction Treatment Act of 2000 (“DATA,” Pub. L. 106-310) amended the Controlled Substances Act (21 U.S.C. 823(g)(2)) to permit qualifying practitioners to seek and obtain waivers to prescribe certain approved narcotic treatment drugs for the treatment of opiate addiction. The legislation set eligibility requirements and certification requirements as well as an interagency notification review process for practitioners who seek waivers. To implement these provisions, SAMHSA developed Notification of Intent Forms that facilitate the submission and review of notifications. The forms provide the information necessary to determine whether practitioners meets the qualifications for waivers set forth under the law at the 30-, 100-, and 275-patient limits. This includes the annual reporting requirements for practitioners with waivers for a 275 patient limit. On October 24, 2018, the Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act (Pub. L. 115-71) was signed into law. Sections 3201-3202 of the SUPPORT Act made several amendments to the Controlled Substances Act regarding office-based opioid treatment that affords practitioners greater flexibility in the provision of medication-assisted treatment (MAT).
The SUPPORT Act expands the definition of “qualifying other practitioner” enabling Clinical Nurse Specialists, Certified Registered Nurse Anesthetists, and Certified Nurse Midwives (CNSs, CRNAs, and CNMs) to apply for a Drug Addiction Treatment Act of 2000 (DATA) waiver until October 1, 2023. It also allows qualified practitioners (
Further, the SUPPORT Act extends the ability to treat up to 275 patients to “qualifying other practitioners” (
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Statute (42 U.S.C. 290dd-2) and regulations (42 CFR part 2) require federally conducted, regulated, or directly or indirectly assisted alcohol and drug abuse programs to keep alcohol and drug abuse patient records confidential. Information requirements are (1) written disclosure to patients about Federal laws and regulations that protect the confidentiality of each patient, and (2) documenting “medical personnel” status of recipients of a disclosure to meet a medical emergency. Annual burden estimates for these requirements are summarized in the table below. A notice of proposed rulemaking was published in the
The final rule will likely not be published prior to the expiration of this current PRA package which is why this extension of the current rule is necessary.
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This notice advises the public that the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties will remain the same from the previous quarter. For the calendar quarter beginning October 1, 2019, the interest rates for overpayments will be 4 percent for corporations and 5 percent for non-corporations, and the interest rate for underpayments will be 5 percent for both corporations and non-corporations. This notice is published for the convenience of the importing public and U.S. Customs and Border Protection personnel.
The rates announced in this notice are applicable as of October 1, 2019.
Bruce Ingalls, Revenue Division, Collection Refunds & Analysis Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone (317) 298-1107.
Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the
The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.
In Revenue Ruling 2019-21, the IRS determined the rates of interest for the calendar quarter beginning October 1, 2019, and ending on December 31, 2019. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%) for both corporations and non-corporations. For corporate overpayments, the rate is the Federal short-term rate (2%) plus two percentage points (2%) for a total of four percent (4%). For overpayments made by non-corporations, the rate is the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%). These interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties are remaining the same from the previous quarter. These interest rates are subject to change for the calendar quarter beginning January 1, 2020, and ending on March 31, 2020.
For the convenience of the importing public and U.S. Customs and Border Protection personnel the following list of IRS interest rates used, covering the period from July of 1974 to date, to calculate interest on overdue accounts and refunds of customs duties, is published in summary format.
Transportation Security Administration, DHS.
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0056, abstracted below to OMB for review and approval of an extension of the
Send your comments by November 1, 2019. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Christina A. Walsh, TSA PRA Officer, Information Technology (IT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-2062; email
TSA published a
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Consistent with the requirements of Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, and E.O. 13777, Enforcing the Regulatory Reform Agenda, TSA is also requesting comments on the extent to which this request for information could be modified to reduce the burden on respondents.
Transportation Security Administration, DHS.
30-Day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0062, abstracted below to OMB for review and approval of an extension to the currently approved collection under the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection allows TSA to conduct transportation security-related assessments during site visits with surface transportation security and operating officials.
Send your comments by November 1, 2019. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to dhsdeskofficer@
Christina A. Walsh, TSA PRA Officer, Information Technology (IT), TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6011; telephone (571) 227-2062; email
TSA published a
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Consistent with the requirements of Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, and E.O. 13777, Enforcing the Regulatory Reform Agenda, TSA is also requesting comments on the extent to which this request for information could be modified to reduce the burden on respondents.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The purpose of this notice is to allow an additional 30 days for public comments.
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 1, 2019. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, Telephone number (202) 272-8377 (This is not a toll-free number; comments are not accepted via telephone message.). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
The information collection notice was previously published in the
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 2, 2019.
All submissions received must include the OMB Control Number 1615-0048 in the body of the letter, the agency name and Docket ID USCIS-2006-0025. To avoid duplicate submissions, please use only
(1)
(2)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, have received an application from the County of San Luis Obispo for an incidental take permit under the Endangered Species Act of 1973, as amended. The permit, if issued, would authorize take of the federally endangered Morro shoulderband snail (
We will receive public comments on the draft habitat conservation plan and draft environmental assessment until November 18, 2019.
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Leilani Takano, Assistant Field Supervisor, by phone at 805-677-3330, via the Federal Relay Service at 1-800-877-8339 for TTY assistance, or at the Ventura address (see
The County of San Luis Obispo (applicant) has applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit (ITP) under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
Section 9 of the ESA prohibits the take of fish or wildlife species listed as endangered; by regulation, the Service may extend the take prohibition to fish or wildlife species listed as threatened. “Take” is defined under the ESA to include the following activities: “[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. 1532); however, under section 10(a)(1)(B) of the ESA, we may issue permits to authorize incidental take of listed species. The ESA defines “incidental take” as take that is incidental to, and not the purpose of, carrying out of an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are in the Code of Federal Regulations (CFR) at 50 CFR 17.32 and 17.22, respectively. Under the ESA, protections for federally listed plants differ from the protections afforded to federally listed animals. Issuance of an incidental take permit also must not jeopardize the existence of federally listed fish, wildlife, or plant species. The Permittee would receive assurances under our “No Surprises” regulations (50 CFR 17.22(b)(5)) and 17.32(b)(5)) regarding conservation activities for the Morro shoulderband snail, Morro Bay kangaroo rat, Indian Knob mountainbalm, and Morro manzanita.
The proposed HCP includes measures intended to avoid, minimize, and mitigate take of the Morro shoulderband snail and Morro Bay kangaroo rat and impacts to Indian Knob mountainbalm and Morro manzanita (covered species) expected to occur incidental to otherwise lawful covered activities.
The applicant is requesting coverage for incidental take and impacts resulting from the following categories of covered activities:
1. Private development (new construction, remodels, defensible space),
2. Capital improvement projects,
3. Facilities operation and maintenance projects,
4. Community wildfire protection plan, and
5. Conservation program.
Incidental take or impacts to the covered species resulting from the covered activities would be restricted to the 3,200-acre (ac) permit area, which includes the majority of Los Osos, an unincorporated community in western San Luis Obispo County. The permit area excludes all existing State park lands, with the exception of approximately 5 ac contiguous with Elfin Forest Reserve. Covered activities could result in the loss of up to 532 ac of habitat for the covered species present within the permit area.
The proposed conservation program includes species-specific avoidance and minimization measures and the establishment of a preserve system for the covered species. The preserve system would be subject to monitoring, management, and protection in perpetuity. The conservation program would remain in step with take/impacts, and the assembly of the preserve system would occur throughout the permit term.
The EA analyzes the effects to the human environment for three project alternatives: No action, proposed action, and reduced take.
Under the No-Action alternative, the Service would not issue the ITP and
Under the Proposed Action alternative, the Service would issue the ITP and the County would implement the HCP that addresses the covered species and covered activities. The maximum extent of area affected would be 532 ac within the permit area.
Under the Reduced Take alternative, the Service would issue the ITP and the County would implement the HCP that addresses the proposed covered species and covered activities. While the permit area and permit term would remain the same, the maximum area affected would be 266 ac, which represents 50 percent of the maximum amount under the Proposed Action alternative. There would be a commensurate reduction in conservation actions.
If you wish to comment on the draft HCP and draft EA, you may submit comments by one of the methods in
Any comments we receive will become part of the decision record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, please be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10 of the ESA (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Indian Affairs (BIA) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before December 2, 2019.
Send your comments on this information collection request (ICR) by mail to Ms. Sunshine Jordan, Acting Division Chief, Office of Indian Services—Division of Self-Determination, 1849 C Street NW, MS 4513-MIB, Washington, DC 20240, telephone: (202) 513-7616; email:
Please reference OMB Control Number 1076-0136 in the subject line of your comments.
To request additional information about this ICR, contact Ms. Sunshine Jordan by telephone at: (202) 513-7616; or by email at:
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the BIA; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BIA enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BIA minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Congressional appropriations are divided among BIA and Tribes and Tribal organizations to pay for both the BIA's direct operation of programs and for the operation of programs by Tribes and Tribal organizations through Self-Determination contracts and compacts. The regulations implementing ISDEAA are at 25 CFR 900.
The data is maintained by BIA's Office of Indian Services, Division of Self-Determination. The burden hours for this continued collection of information are reflected in the Estimated Total Annual Hour Burden in this notice.
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 Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Indian Affairs (BIA) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before December 2, 2019.
Send your comments on this information collection request (ICR) by mail to the Mrs. Evangeline M. Campbell, 1849 C Street NW, Mail Stop 3645, Washington, DC 20240; fax: (202) 513-208-5113; email:
To request additional information about this ICR, contact Mrs. Evangeline M. Campbell, (202) 513-7621.
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the BIA; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BIA enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BIA minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office of the Secretary, Interior.
Notice of a new system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior is issuing a public notice of its intent to create the Department of the Interior Privacy Act system of records titled, “INTERIOR/DOI-20, Paleontological Resources Preservation System.” This system of records helps the Department of the Interior implement the Paleontological Resources Preservation Act and manage, preserve and protect paleontological resources on Federal lands under the jurisdiction of the Department of the Interior. This newly established system will be included in the Department of the Interior's inventory of record systems.
This new system will be effective upon publication. New routine uses will be effective November 1, 2019. Submit comments on or before November 1, 2019.
You may send comments, identified by docket number [DOI-2019-0007], by any of the following methods:
•
•
•
•
Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112, Washington, DC 20240, email at
The Department of the Interior (DOI) is creating a new system of records titled INTERIOR/DOI-20, Paleontological Resources Preservation System to implement the Paleontological Resources Preservation Act of 2009 (PRPA), which requires DOI to issue implementing regulations to manage, protect, and preserve paleontological resources on Federal lands under the jurisdiction of DOI using scientific principles and expertise. In compliance with PRPA, DOI's Bureau of Land Management (BLM), Bureau of Reclamation (Reclamation), National Park Service (NPS), and U.S. Fish and Wildlife Service (FWS) are promulgating a joint regulation for the collection of paleontological resources from the lands administered by these bureaus and are responsible for collaborating on the management of these resources. A Notice of Proposed Rulemaking was published in the
The Privacy Act of 1974, as amended, embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' personal information. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a United States citizen or lawful permanent resident. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DOI by complying with DOI Privacy Act regulations at 43 CFR part 2, subpart K, and following the procedures outlined in the Records Access, Contesting Record, and Notification Procedures sections of this notice.
The Privacy Act requires each agency to publish in the
You should be aware that your entire comment including your personal identifying information, such as your address, phone number, email address, or any other personal identifying information in your comment, may be made publicly available at any time. While you may request to withhold your personal identifying information from public review, we cannot guarantee we will be able to do so.
INTERIOR/DOI-20, Paleontological Resources Preservation System.
Unclassified.
(1) Office of the Bureau of Land Management National Paleontologist, WO-240, 20 M Street SE, Suite 2134, Washington, DC 20003.
(2) Bureau of Reclamation, Denver Federal Center, 6th & Kipling, Building 67, Denver, CO 80225.
(3) National Park Service, 1849 C Street NW, Mail Stop 2460, Washington, DC 20240.
(4) U.S. Fish & Wildlife Service Headquarters Office, National Wildlife Refuge System, 5275 Leesburg Pike, Falls Church, VA 22041.
(5) Regional and field offices for each bureau or office responsible for issuing and administering paleontological use permits.
(1) Bureau of Land Management System Manager, National Paleontologist, WO-240, 20 M Street SE, Suite 2134, Washington, DC 20003.
(2) Bureau of Reclamation System Manager, Federal Preservation Officer, Denver Federal Center, 6th & Kipling, Building 67, Denver, CO 80225.
(3) National Park Service Special Park Uses Program Manager, 1849 C Street NW, Mail Stop 2460, Washington, DC 20240.
(4) U.S. Fish & Wildlife FWS System Manager, Federal Preservation Officer, National Wildlife Refuge System, 5275 Leesburg Pike, Falls Church, VA 22041.
The Paleontological Resources Preservation Act, 16 U.S.C. 470aaa
The primary purpose of this system is to implement the PRPA, which requires DOI to issue implementation regulations to manage, protect, and preserve paleontological resources on Federal lands under the jurisdiction of DOI using scientific principles and expertise. The primary uses of the records are to provide BLM, Reclamation, NPS, and FWS with information to approve or deny requests for paleontological resources use permits. Additionally, this system of records will facilitate management, tracking, and reporting activities under permits, thus allowing bureau and office staff to ensure that permitted activities do not interfere with management objectives for the land or with other authorized public uses, thereby protecting Federal land and the natural and cultural resources on that land.
Individuals covered by this system include members of the public who apply for paleontological resources use permits; permittees and persons working under a permit (support personnel); persons who file a written objection to a proposed notice of violation and assessment of civil penalty and/or request a hearing on a final assessment of civil penalty; DOI employees, contractors, or partners who perform paleontological investigations for scientific research; employees located at a facility that curate Federal collections; and DOI employees who serve as contacts for processing applications and managing permits.
This system contains paleontological resources use permit applications; documents associated with the bureau or office decision on a permit; documents associated with the management of the permits, including records of appeals of bureau or office decisions; and other records necessary to manage the permitting process and permit-related bureau or office administrative records. The system also contains information on permit numbers, locations of the paleontological site, locality numbers, types, and purposes of the proposed activity, reports of results of permitted activities, and locations and transfers of collections made under a permit. These records may contain the following information: Names of applicants and support personnel such as other persons who conduct or oversee work under the permit; researchers; applicant institutional affiliation; applicant contact information including work mailing address, work telephone number(s), work fax number, and/or professional email address; field contact information; applicant and support personnel resumes, educational institutions attended and dates of attendance or graduation, applicant institutional affiliation, employment information, machinery or vehicle identifying information as appropriate; proof of insurance as appropriate, and other information necessary to ensure that the applicant can perform the work proposed under the permit. The system may also contain records related to the assessment of civil penalties including written notices of objection to a proposed assessment of civil penalty, written requests for a hearing on a final assessment of civil penalty, final determinations, and any correspondence or record related to the implementation of provisions related to civil penalties under the PRPA.
Records in this system are obtained from individuals covered by the system including applicants for and holders of permits and their support personnel, researchers, DOI employees, DOI contractors, DOI partners, curators and staff-employed at repositories curating Federal collections.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information maintained in this system may be disclosed to authorized entities outside DOI for purposes determined to be relevant and necessary as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the U.S. Attorneys, or other Federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
(1) DOI or any component of DOI;
(2) Any other Federal agency appearing before the Office of Hearings and Appeals;
(3) Any DOI employee or former employee acting in his or her official capacity;
(4) Any DOI employee or former employee acting in his or her individual capacity when DOI or DOJ has agreed to represent that employee or pay for private representation of the employee; or
(5) The United States Government or any agency thereof, when DOJ determines that DOI is likely to be affected by the proceeding.
B. To a congressional office when requesting information on behalf of, and at the request of, the individual who is the subject of the record.
C. To the Executive Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf, or for a purpose compatible with the reason for which the records are collected or maintained.
D. To any criminal, civil, or regulatory law enforcement authority (whether Federal, state, territorial, local, tribal or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
E. To an official of another Federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to
F. To Federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
G. To representatives of the National Archives and Records Administration (NARA) to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
H. To state, territorial and local governments and tribal organizations to provide information needed in response to court order and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
I. To an expert, consultant, grantee, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
J. To appropriate agencies, entities, and persons when:
(1) DOI suspects or has confirmed that there has been a breach of the system of records;
(2) DOI has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DOI (including its information systems, programs, and operations), the Federal Government, or national security; and
(3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DOI's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
K. To another Federal agency or Federal entity, when DOI determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in:
(1) Responding to a suspected or confirmed breach; or
(2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
L. To the Office of Management and Budget (OMB) during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
M. To the Department of the Treasury to recover debts owed to the United States.
N. To the news media and the public, with the approval of the Public Affairs Officer in consultation with counsel and the Senior Agency Official for Privacy, where there exists a legitimate public interest in the disclosure of the information, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
O. To partners, curators and staff that have physical custody of Federally-owned collections of paleontological resources in furtherance of the care and management of the paleontological collection.
P. To other Federal agencies and non-Federal institutions, partners, scientists, groups, persons, or the general public through the news media, social media applications, and museum exhibits to foster public education and awareness and provide outreach on paleontological resources from bureau-administered lands.
Q. To permitted researchers to share relevant information from the original permit regarding previous scientific investigations on paleontological resources. Information shared with researchers will be limited to name and professional contact information, as well as the nature and location of previous discoveries.
Disclosure pursuant to 5 U.S.C. 552a(b)(12). Disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1996 (31 U.S.C. 3701(a)(3)).
PRPA records are managed securely at DOI and bureau offices. Paper records are contained in file folders stored in locked file cabinets at secured DOI and bureau facilities. Electronic records are maintained as restricted access in shared or removable drives, computers, email, and electronic databases.
Records are retrieved by the individual's name (permittees or researchers), permit number, locality number, location of the paleontological site, and other types of information by key word search.
Records in this system are maintained in accordance with specific bureau records retention schedules that have been approved by NARA. Bureau of Reclamation records are maintained under PRM-10.00 Museum Property, Artwork, and Artifacts—Permanent, ENV-3.00 Cultural Resources—Permanent, and Natural Resource Protection and Management Program—Permanent. Bureau of Land Management records are maintained under BLM 4/14 Grazing and other Land-Use Lease and Permit Files—Temporary, 30 years. Fish and Wildlife Service records are maintained under PERM-811, Archaeological Permit Files—Temporary, 3 years. The National Park Service records are maintained under NPS Records Schedule, Resource Management and Lands (Item 1D) (N1-79-08-1)—Temporary, Destroy/delete 3 years after closure.
A new Department Records Schedule (DRS)—2 Mission Bucket Schedule for mission-related records has been submitted to NARA and is pending approval. Once NARA approves the DRS the records related to this system will be maintained in accordance with the following DRS: 2.1.1.03, Long-Term Mission—Natural & Cultural Resources, Native American Graves Protection and Repatriation Act (NAGPRA) & Paleontology; and DRS 2.1.1.04, Historically-Significant Natural & Cultural Resources—NAGPRA & Paleontology. Records under DRS 2.1.1.03 have a temporary disposition authority and are maintained for approximately 25 years after cut-off. Approved destruction methods for temporary records that have met their retention period include shredding or pulping paper records, and erasing or degaussing electronic records in accordance with 384 Departmental Manual 1 and NARA guidelines. Records maintained under DRS 2.1.1.04 have a permanent retention schedule. Permanent records are maintained either at the office of record or transferred to the Federal Records Center or NARA when volume warrants.
The records contained in this system are safeguarded in accordance with 43 CFR 2.226 and other applicable security rules and policies. Records are accessible only by authorized DOI employees, and other Federal Government agencies and contractors who have contractual agreements with BLM, Reclamation, NPS, and FWS to conduct activities related to
Computerized records systems follow the National Institute of Standards and Technology privacy and security standards as developed to comply with the Privacy Act of 1974 as amended, 5 U.S.C. 552a; the Paperwork Reduction Act of 1995, Public Law 104-13; Federal Information Security Modernization Act of 2014, Public Law 113-283, as codified at 44 U.S.C. 3551
An individual requesting records on himself or herself should send a signed, written inquiry to the appropriate System Manager identified in this notice. The request must include the specific bureau or office that maintains the records to facilitate location of the applicable records. The request envelope and letter should both be clearly marked “PRIVACY ACT REQUEST FOR ACCESS.” A request for access must meet the requirements of 43 CFR 2.238.
An individual requesting corrections or the removal of material from his or her records should send a signed, written request to the appropriate System Manager identified in this notice. The request must include the specific bureau or office that maintains the records to facilitate location of the applicable records. A request for corrections or removal must meet the requirements of 43 CFR 2.246.
An individual requesting notification of the existence of records on himself or herself should send a signed, written inquiry to the appropriate System Manager identified in this notice. The request must include the specific bureau or office that maintains the records to facilitate location of the applicable records. The request envelope and letter should both be clearly marked “PRIVACY ACT INQUIRY.” A request for notification must meet the requirements of 43 CFR 2.235.
None.
None.
On the basis of the record
The Commission, pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)), instituted this review on April 1, 2019 (84 FR 12282) and determined on July 5, 2019 that it would conduct an expedited review (84 FR 39862, August 12, 2019).
The Commission made this determination pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determination in this review on September 26, 2019. The views of the Commission are contained in USITC Publication 4971 (September 2019), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
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 and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of LG Chem, Ltd.; LG Chem Michigan Inc.; and Toray Industries, Inc. on September 26, 2019. 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 lithium-ion battery cells, battery modules, battery packs, components thereof, and products containing the same. The complaint names as respondents: SK Innovation Co., Ltd. of South Korea; and SK Battery America, Inc. of Atlanta, GA. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
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 and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3413”) 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 a complaint was filed with the U.S. International Trade Commission on August 26, 2019, under section 337 of the Tariff Act of 1930, as amended, on behalf of Globalfoundries U.S. Inc. of Santa Clara, California. Supplements were filed on September 12, 2019 and September 16, 2019. The complaint alleges violations of 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 semiconductor devices, products containing the same, and components thereof by reason of infringement of certain claims of U.S. Patent No. 8,823,178 (“the '178 patent”); U.S. Patent No. 9,105,643 (“the '643 patent”); U.S. Patent No. 7,378,357 (“the '357 patent”); and U.S. Patent No. 9,082,877 (“the '877 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainant requests that the Commission institute an investigation and, after the
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained 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 at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2019).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1-5 of the '178 patent; claims 1-12 of the '643 patent; claims 1-17 of the '357 patent; and claims 1-14 of the '877 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “(a) TSMC semiconductor devices manufactured at the 16 nanometer (nm) and smaller technology nodes; (b) products containing such TSMC-manufactured 16 nm and smaller semiconductor devices, consisting of smartphones, tablets, computers, wearable devices, set top boxes, and switches (consisting of standalone switches and switches that are incorporated into routers); and (c) components thereof, consisting of integrated circuits and graphics cards containing such semiconductor devices;”
(3) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(4) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Globalfoundries U.S. Inc., 2600 Great America Way, Santa Clara, CA 95054.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(5) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigations Nos.701-TA-630 and 731-TA-1462 (Preliminary) pursuant to the Tariff Act of 1930 (“the
September 25, 2019.
Christopher W. Robinson ((202) 205-2542), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these investigations 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 B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the 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.
On September 19, 2019, the Department of Justice lodged a proposed modified consent decree with the
The proposed modified consent decree would replace a consent decree entered by the court on January 24, 2008, which resolved claims under Sections 301 and 402 of the Clean Water Act, 33 U.S.C. 1311, 1342, that Alcosan violated the Clean Water Act by discharging pollutants into waters of the United States without a permit, and by discharging pollutants in a manner not contemplated by its National Pollutant Discharge Elimination System (“NPDES”) permit. Those violations occurred primarily during wet weather, which causes Alcosan's sewer system to overload and to discharge through a network of outfalls that run along three main rivers in the area—the Allegheny, Ohio, and Monogahela Rivers. Alcosan paid a civil penalty to the Plaintiffs of $1.2 million and completed supplemental environmental projects under the 2008 consent decree. The proposed modified consent decree, among other things: (1) Approves a long-term plan under which Alcosan will reduce sewer overflows; (2) extends the time period for Alcosan to implement the long-term plan; and (3) incorporates additional opportunities to modify the long-term plan.
The publication of this notice opens a period for public comment on the proposed modified consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed modified consent decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $74.25 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $28.75.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) titled, “Census of Fatal Occupational Injuries,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 1, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov website at
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Census of Fatal Occupational Injuries information collection. The Census of Fatal Occupational Injuries provides policymakers and the public with comprehensive, verifiable, and timely measures of fatal work injuries. Data are compiled from various Federal, State, and local sources and include information on how the incident occurred as well as various characteristics of the employers and the deceased worker. This information is used for surveillance of fatal work injuries and for developing prevention strategies. Section 24(a) of the Occupational Safety and Health Act of 1970 authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB under the PRA approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on November 30, 2019. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility:
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
National Aeronautics and Space Administration (NASA).
Notice of information collection—Extension of a currently approved collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
Submit all comments on November 1, 2019.
All comments should be addressed to Claire Little, National Aeronautics and Space Administration, 300 E Street SW, Washington, DC 20546-0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Claire Little, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546 or email
This collection provides a means by which NASA contractors can voluntarily and anonymously report any safety concerns or hazards pertaining to NASA programs, projects, or operations.
The current, paper-based reporting system ensures the protection of a submitter's anonymity and secure submission of the report by way of the U.S. Postal Service.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Aeronautics and Space Administration.
Notice of intent to grant a partially-exclusive patent license.
NASA hereby gives notice of its intent to grant a partially exclusive patent license in the United States to practice the invention described and claimed in U.S. Patent 9,770,405 entitled, “Biocompatible Capsules and Methods of Making,” to Capcell Biologics, Inc. having its principal place of business in New York, NY. The fields of use may be limited to health and medicine. The patent rights in this invention, directed to Health, Medicine, and Biotechnology, have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. NASA has not yet made a determination to grant the requested license and may deny the requested license even if no objections are submitted within the comment period.
The prospective partially exclusive license may be granted unless NASA receives written objections, including evidence and argument no
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A-4, Moffett Field, CA 94035-1000. (650) 604-0887; Fax (650) 604-2767.
Robert M. Padilla, Chief Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A-4, Moffett Field, CA 94035-1000. (650) 604-0887; Fax (650) 604-2767.
This Notice of Intent to Grant a Partially-Exclusive Patent License is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). The patent rights in this invention have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially-exclusive patent license will comply with the requirements of 35 U.S.C. 209 and 37 CFR. 404.7.
Information about other NASA inventions available for licensing can be found online at
National Aeronautics and Space Administration (NASA).
Notice of information collection—New.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
Submit all comments on November 1, 2019.
All comments should be addressed to Claire Little, National Aeronautics and Space Administration, 300 E Street SW, Washington, DC 20546-0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Claire Little, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546 or email
This site contains a questionnaire to become a crew/experiment subject for Flight Analog Project (FAP) missions such as Human Exploration Research Analog (HERA), Scientific International Research in a Unique Station (SIRIUS) and other analog studies. The questionnaire is used to screen potential applicants for initial qualifications. In addition, the website describes the FAP facilities and experiments conducted to inform and promote interest in the FAP missions.
Public website, Web Form.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
Institute of Museum and Library Services (IMLS).
Notice of modified systems of records.
The Institute of Museum and Library Services (IMLS), is publishing an amendment of its systems of records to reflect the agency's change of address and to provide updated information. The Notice includes descriptions of the agency's systems of records and the ways they are maintained, as required by the Privacy Act of 1974, 5 U.S.C. 552 (a)(e)(4).
The amended system notice is effective upon date of publication.
Nancy E. Weiss, Senior Agency Official for Privacy, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, 4th Floor, Washington, DC 20024. Email:
Nancy E. Weiss, (202) 653-4657,
In accordance with 5 U.S.C. 552a(e)(4), IMLS today is publishing an amended notice of the existence and character of its systems of records in order to make available in one place in the
The following general routine uses are incorporated by reference into each system of records set forth herein, unless specifically limited in the system description.
1. A record may be disclosed as a routine use to a Member of Congress or his or her staff, when the Member of Congress or his or her staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
2. A record may be disclosed as a routine use to designated officers and employees of other agencies and departments of the Federal government having an interest in the subject individual for employment purposes (including the hiring or retention of any employee; the issuance of a security clearance; the letting of a contract; or the issuance of a license, grant, or other benefits by the requesting agency) to the extent that the information is relevant and necessary to the requesting agency's decision on the matter involved.
3. In the event that a record in a system of records maintained by IMLS indicates, either by itself or in combination with other information in IMLS's possession, a violation or potential violation of the law (whether civil, criminal, or regulatory in nature, and whether arising by statute or by regulation, rule, or order issued pursuant thereto), that record may be referred, as a routine use, to the appropriate agency, whether Federal, State, local, or foreign, charged with investigating or prosecuting such violation, or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto. Such referral shall be deemed to authorize: (1) Any and all appropriate and necessary uses of such records in a court of law or before an administrative board or hearing; and (2) Such other interagency referrals as may be necessary to carry out the receiving agencies' assigned law enforcement duties.
4. The names, Social Security numbers, home addresses, dates of birth, dates of hire, quarterly earnings, employer identifying information, and State of hire of employees may be disclosed as a routine use to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services, as follows:
(a) For use in the Federal Parent Locator System (FPLS) and the Federal Tax Offset System for the purpose of locating individuals to establish paternity, establishing and modifying orders of child support, identifying sources of income, and for other child support enforcement actions as required by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193);
(b) For release to the Social Security Administration for the purpose of verifying Social Security numbers in connection with the operation of FPLS; and
(c) For release to the U.S. Department of the Treasury (Treasury) for the purpose of payroll, savings bonds, and other deductions; administering the Earned Income Tax Credit Program (section 32, Internal Revenue Code of 1986); and verifying a claim with respect to employment on a tax return, as required by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193);
5. A record may be disclosed as a routine use in the course of presenting evidence to a court, magistrate, or administrative tribunal of appropriate jurisdiction, and such disclosure may include disclosures to opposing counsel in the course of settlement negotiations.
6. Information from any system of records may be used as a data source for management information, for the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained, or for related personnel management functions or manpower studies. Information also may be disclosed to respond to general requests for statistical information (without personal identification of individuals) under the Freedom of Information Act.
7. A record may be disclosed as a routine use to a contractor, expert, or consultant of IMLS (or an office within IMLS) when the purpose of the release is to perform a survey, audit, or other review of IMLS's procedures and operations.
8. A record from any system of records may be disclosed as a routine use to the National Archives and Records Administration as part of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
9. A record may be disclosed to a contractor, grantee, or other recipient of Federal funds when the record to be released reflects serious inadequacies with the recipient's personnel, and disclosure of the record is for the purpose of permitting the recipient to effect corrective action in the government's best interest.
10. A record may be disclosed to a contractor, grantee, or other recipient of Federal funds when the recipient has incurred indebtedness to the government through its receipt of government funds, and the release of the record is for the purpose of allowing the debtor to effect a collection against a third party.
11. Information in a system of records may be disclosed as a routine use to the Treasury; other Federal agencies; “consumer reporting agencies” (as defined in the Fair Credit Reporting Act, 15 U.S.C. 1681a(f), or the Federal Claims Collection Act of 1966, 31 U.S.C. 3701(a)(3)); or private collection contractors for the purpose of collecting a debt owed to the Federal Government as provided in the regulations promulgated by IMLS at 45 CFR 1183.
This document gives notice that the following IMLS systems of records are in effect:
Electronic Grant Management System.
Unclassified.
Office of the Chief Information Officer, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, 4th Floor, Washington, DC 20024. Authorized personnel may access IMLS's electronic grant management system (eGMS) via an online portal.
Deputy Directors of the Office of Museum Services and Office of Library Services, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, 4th Floor, Washington, DC 20024.
The Museum and Library Services Act of 2018 (20 U.S.C. 9101
To provide a central repository for information about expert reviewers, grant applicants, award recipients, and awards.
Individuals who have applied to or have served as peer review panelists.
Names of individuals, home and work addresses, telephone numbers, email addresses, Social Security Numbers (only from those panelists receiving
Data in this system is obtained from individuals covered by the system, as well as from IMLS employees involved in the administration of grants.
Data in this system may be used for the selection of reviewers and payment of honoraria to panelists, and general administration of the grant review process (evaluation of applications for federal assistance, management of active grants, communication with grantees, and processing of disbursement of grant funds). See also the list of General Routine Uses contained in the Preliminary Statement.
Records in this system are maintained in an electronic database and digital file repository.
Records in this system are retrieved by name, email address, eGMS identification number, review group assignment, or by the identification number of an application.
Records in this system are updated on a continuing basis when reviewers are assigned to a review group and as new information is received. Records will be removed only in accordance with the disposition authority provided by IMLS records schedules.
Access to records in this system by IMLS staff is controlled by password and dual factor authentication, with different levels of modification rights assigned to individuals and offices at IMLS based upon their specific job functions. Access limited to authorized personnel whose duties require such access, and to those functions necessary for the performance of their duties. IMLS provides grant applicants and peer review panelists individual accounts with access restricted to only those grant applications with which the individual is affiliated.
See 45 CFR part 1182.
See 45 CFR part 1182.
See 45 CFR part 1182.
None.
84 FR 1796.
Federal Personnel and Payroll System.
Unclassified.
Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, 4th Floor, Washington, DC 20024, U.S. Department of Interior, Interior Business Center, Denver, Colorado.
Human Resources Officer, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, 4th Floor, Washington, DC 20024.
The Museum and Library Services Act of 2018 (20 U.S.C. 9101
To document IMLS's personnel processes and to calculate and process payroll.
Employees of IMLS.
Payroll and personnel information, such as time and attendance data, statements of earnings and leave, training data, wage and tax statements, and payroll and personnel transactions. This system includes data that also is maintained in IMLS's official personnel folders, which are managed in accordance with Office of Personnel Management (OPM) regulations. The OPM has given notice of its system of records covering official personnel folders in OPM/GOVT-1.
Data in this system is obtained from individuals covered by the system, as well as from IMLS employees involved in the administration of personnel and payroll processes.
Data in this system may be transmitted to the U.S. Department of Interior, Interior Business Center, U.S. Department of Treasury, and employee-designated financial institutions to affect issuance of paychecks to employees and distributions of pay according to employee directions for authorized purposes. Data in this system also may be used to prepare payroll, meet government recordkeeping and reporting requirements, and retrieve and apply payroll and personnel information as required for agency needs. See also the list of General and Routine Uses contained in the Preliminary Statement.
Electronic records in this system are maintained off-site by the Department of Interior, Interior Business Center (IBC). Paper records generated through the NBC are maintained in file cabinets in secured storage areas by the Offices of the Chief Financial Officer and Human Resources after arriving at IMLS. Discipline offices also may use file cabinets in secured storage areas to maintain paper records concerning performance reviews and other personnel actions in their divisions.
Records in this system are retrieved by name, Social Security number, or date of birth.
The Human Resources Officer maintains paper records in this system in accordance with the General Services Administration's General Records Schedule 2. Division offices may maintain paper records concerning performance reviews and other personnel actions in their divisions for the duration of an individual's employment with IMLS.
Access to the electronic records in this system is controlled by password on the limited number of IMLS computers that can be used to draw information from the IBC. File cabinets containing the paper records in this system either are kept locked during non-business hours or are located in
See 45 CFR part 1182.
See 45 CFR part 1182.
See 45 CFR part 1182.
None.
84 FR 1796.
Financial Management System—Delphi.
Unclassified.
Enterprise Services Center, 6500 MacArthur Boulevard, Oklahoma City, OK 73169.
Office of the Chief Financial Officer, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, 4th Floor, Washington, DC 20024.
The Museum and Library Services Act of 2018 (20 U.S.C. 9101
To provide a central repository of all financial transactions to enable IMLS to meet its statutory reporting requirements to the Office of Management and Budget, the U.S. Department of Treasury, and Congress.
Employees of IMLS, application reviewers, grantees, vendors and other Federal Government organizations.
Name, address, telephone number, telefax number, email address, payment information, including banking information. This system data is maintained in an Oracle Database.
Data in this system is obtained from individuals covered by the system, as well as from IMLS employees involved in the administration of grants, travel, and vendor processes.
Data in this system may be used for the general administration of the grant management process and the IMLS accounting process. See also the list of General Routine Uses contained in the Preliminary Statement.
Electronic records in this system are maintained off-site by the Department of Transportation's Enterprise Services Center. Associated paper records are also maintained at the Enterprise Services Center. Discipline offices also may use locking file cabinets to maintain paper records concerning financial transactions processed in their divisions.
Records in this system are retrieved by name and/or purchase order number.
Records in this database are maintained and updated on a daily basis as financial transactions are processed. Discipline offices maintain paper files that grow as financial transactions are submitted to the Enterprise Services Center for processing. Records are disposed of in accordance with the General Services Administration's General Records Schedule.
Authorized IMLS staff use passwords via a remote secure VPN to gain access to the database. Rooms containing the records in this system are kept locked during non-working hours.
See 45 CFR part 1182.
See 45 CFR part 1182.
See 45 CFR part 1182.
None.
84 FR 1796.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
On August 1, 2019, Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its fee schedule to establish a pricing structure for Distributors
Under the Exchange's proposal, Distributors would be charged a tiered External Subscriber Fee based on the number of API Service Platforms (
Pursuant to Section 19(b)(3)(C) of the Act,
The Exchange asserts that the proposed fees for the Program are reasonable “as the proposed fee reduction would facilitate cost effective access to market information that is used primarily to create certain derivative instruments rather than to trade U.S. equity securities.”
The Exchange also asserts that the proposed fees are “equitable and not unfairly discriminatory because the Exchange will apply the same fees to any similarly situated Distributors that elect to participate in the Program based on the number of External Subscribers provided access to Derived Data through an API Service, with Distributors providing access to six or more External Subscribers receiving a discount compared to the current pricing applicable for external distribution of EDGX Top.”
When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchange's present proposal, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder applicable to the exchange.
Among other things, exchange proposed rule changes are subject to Section 6 of the Act, including Sections 6(b)(4), (5), and (8), which requires the rules of an exchange to: (1) Provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities;
In temporarily suspending the Exchange's fee change, the Commission intends to further consider whether the establishment of the Program is consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule changes.
The Commission is instituting proceedings pursuant to Sections 19(b)(3)(C)
Pursuant to Section 19(b)(2)(B) of the Act,
• Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange “provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities,”
• Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be “designed to perfect the operation of a free and open market and a national market system” and “protect investors and the public interest,” and not be “designed to permit unfair discrimination between customers, issuers, brokers, or dealers,”
• Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].”
As noted above, the proposal establishes a new pricing structure for Distributors of Derived Data through an API. The Commission notes that the Exchange's statements in support of the proposed rule change are general in nature and lack detail and specificity. The Exchange states that it operates in a highly competitive environment, and its ability to price top of book data products is constrained by (i) competition among other national securities exchanges, including The Nasdaq Stock Market LLC (“Nasdaq”), that offer similar data products, and pricing options, to their customers; and (ii) the existence of real-time consolidated data disseminated by the securities information processors.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposed fees are consistent with the Act, and specifically, with its requirements that exchange fees be reasonable and equitably allocated; be designed to perfect the mechanism of a free and open market and the national market system, protect investors and the public interest, and not be unfairly discriminatory; or not impose an unnecessary or inappropriate burden on competition.
The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by October 23, 2019. Rebuttal comments should be submitted by November 6, 2019. Although there do not appear to be any issues relevant to approval or disapproval which 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.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, 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 August 1, 2019, Cboe BZX Exchange, Inc. (the “Exchange” or
The Exchange proposes to amend its fee schedule to establish a pricing structure for Distributors
Under the Exchange's proposal, Distributors would be charged a tiered External Subscriber Fee based on the number of API Service Platforms (
Pursuant to Section 19(b)(3)(C) of the Act,
The Exchange asserts that the proposed fees for the Program are reasonable “as the proposed fee reduction would facilitate cost effective access to market information that is used primarily to create certain derivative instruments rather than to trade U.S. equity securities.”
The Exchange also asserts that the proposed fees are “equitable and not unfairly discriminatory because the Exchange will apply the same fees to any similarly situated Distributors that elect to participate in the Program based on the number of External Subscribers provided access to Derived Data through an API Service, with Distributors providing access to six or more External Subscribers receiving a discount compared to the current pricing applicable for external distribution of BZX Top.”
When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchange's present proposal, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder
Among other things, exchange proposed rule changes are subject to Section 6 of the Act, including Sections 6(b)(4), (5), and (8), which requires the rules of an exchange to: (1) Provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities;
In temporarily suspending the Exchange's fee change, the Commission intends to further consider whether the establishment of the Program is consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule changes.
The Commission is instituting proceedings pursuant to Sections 19(b)(3)(C)
Pursuant to Section 19(b)(2)(B) of the Act,
• Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange “provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities,”
• Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be “designed to perfect the operation of a free and open market and a national market system” and “protect investors and the public interest,” and not be “designed to permit unfair discrimination between customers, issuers, brokers, or dealers,”
• Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].”
As noted above, the proposal establishes a new pricing structure for Distributors of Derived Data through an API. The Commission notes that the Exchange's statements in support of the proposed rule change are general in nature and lack detail and specificity. The Exchange states that it operates in a highly competitive environment, and its ability to price top of book data products is constrained by (i) competition among other national securities exchanges, including The Nasdaq Stock Market LLC (“Nasdaq”), that offer similar data products, and pricing options, to their customers; and (ii) the existence of real-time consolidated data disseminated by the securities information processors.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposed fees are consistent with the Act, and specifically, with its requirements that exchange fees be reasonable and equitably allocated; be designed to perfect the mechanism of a free and open market and the national market system, protect investors and the public interest, and not be unfairly
The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by October 23, 2019. Rebuttal comments should be submitted by November 6, 2019. Although there do not appear to be any issues relevant to approval or disapproval which 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.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Illinois dated 09/26/2019.
Issued on 09/26/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, 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 filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16141 6 and for economic injury is 16142 0. The States which received an EIDL Declaration # are Illinois, Indiana.
The Advisory Committee on International Economic Policy (ACIEP) will meet from 1:00 p.m. until 4:00 p.m. on Thursday, October 23, in New York, New York, at the United States Mission to the United Nations, 799 United Nations Plaza. Assistant Secretary of State for Economic and Business Affairs Manisha Singh and Committee Chair Paul R. Charron will host the meeting. The ACIEP serves the U.S. government in a solely advisory capacity and provides advice concerning topics in international economic policy. The discussion at the meeting will include such topics as U.S. companies competing overseas and the purpose of a corporation. The Sanctions Subcommittee may present updates.
This meeting is open to the public, though seating is limited. Entry to the building is controlled. To obtain pre-clearance for entry, members of the public planning to attend must, no later than October 16, 2019, provide their full name and professional affiliation (if any) to Briana Wagner by email:
This information is being collected pursuant to 22 U.S.C. 2651a and 22 U.S.C. 4802 for the purpose of screening and pre-clearing participants to enter the host venue at the U.S. Department of State, in line with standard security procedures for events of this size. The Department of State will use this information consistent with the routine uses set forth in the System of Records Notices for Protocol Records (State-33) and Security Records (State-36). See
For additional information, contact Briana Wagner, Bureau of Economic and Business Affairs, at (202) 647-4732, or
Department of State.
Notice of receipt of request.
Notice of receipt of request from Turkey for cultural property protection.
Andrew Cohen, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: 202-632-6301;
The Government of the Republic of Turkey has made a request to the Government of the United States under Article 9 of the 1970 UNESCO
Department of State.
Notice of receipt of request.
Notice of receipt of request from Yemen for cultural property protection.
Chelsea Freeland, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: 202-632-6301;
The Republic of Yemen Government has made a request to the Government of the United States under Article 9 of the 1970 UNESCO
The Commission on Unalienable Rights (“Commission”) will meet from 1:15 until 6:15 p.m., on Wednesday, October 23 and from 8:00 a.m. until 12:30 p.m. on Friday, November 1. Both meetings will be in Washington, DC at the State Department. Participants are asked to use the 23rd Street entrance to gain access to each meeting. The meetings will be opened by Secretary of State Michael Pompeo and directed by the Chair of the Commission and Learned Hand Professor of Law at Harvard Law School, Mary Ann Glendon. The Commission serves the U.S. government in a solely advisory capacity, and provides advice concerning principles related to human rights. The discussion at the October 23 meeting will include topics related to human rights and the American founding. The discussion of founding
This meeting is open to the public, though seating is limited. Entry to the building is controlled. To obtain pre-clearance for entry, members of the public planning to attend must,
This information is being collected pursuant to 22 U.S.C. 2651a and 22 U.S.C. 4802 for the purpose of screening and pre-clearing participants to enter the host venue at the U.S. Department of State, in line with standard security procedures for events of this size. The Department of State will use this information consistent with the routine uses set forth in the System of Records Notices for Protocol Records (State-33) and Security Records (State-36). See
For additional information, contact Duncan Walker, Policy Planning Staff, at (202) 647-2236, or
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Making Marvels: Science and Splendor at the Courts of Europe,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at The Metropolitan Museum of Art, New York, New York, from on or about November 18, 2019, until on or about March 1, 2020, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Paralegal Specialist, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Department of State.
Notice of meeting.
We are issuing this notice to announce the location, date, time, and agenda for the next meeting of the Cultural Property Advisory Committee.
October 29-30, 2019, 9:00 a.m. to 5:00 p.m. (EDT). The Cultural Property Advisory Committee will hold an open session on October 29, 2019, at 1:30 p.m. (EDT). It will last approximately one hour.
The public will participate electronically by Zoom. The members will meet at the U.S. Department of State, Annex 5, 2200 C St. NW, Washington, DC.
•
•
For general questions concerning the meeting, contact Andrew Cohen, Bureau of Educational and Cultural Affairs—Cultural Heritage Center by phone, (202) 632-6301, or email:
In accordance with the Convention on Cultural Property Implementation Act (19 U.S.C. 2601
In all cases, your written comments should relate specifically to the determinations specified in the Act at 19 U.S.C. 2602(a)(1). We request that any party soliciting or aggregating written comments received from other persons for submission to the Department inform those persons that the Department will not edit their comments to remove any identifying or contact information and that they therefore should not include any such information in their comments that they do not want publicly disclosed. Written comments submitted in electronic form are not private. We will post the comments at
Susquehanna River Basin Commission.
Notice.
The Susquehanna River Basin Commission will hold a public hearing on October 31, 2019, in Harrisburg, Pennsylvania. At this public hearing, the Commission will hear testimony on the projects listed in the Supplementary Information section of this notice. The Commission will also hear testimony on a proposed rulemaking and consumptive use mitigation policy, as well as proposals to amend its Regulatory Program Fee Schedule. Such projects and proposals are intended to be scheduled for Commission action at its next business meeting, tentatively scheduled for December 5, 2019, which will be noticed separately. The public should take note that this public hearing will be the only opportunity to offer oral comment to the Commission for the listed projects and proposals. The deadline for the submission of written comments is November 12, 2019.
The public hearing will convene on October 31, 2019, at 2:30 p.m. The public hearing will end at 5:00 p.m. or at the conclusion of public testimony, whichever is sooner. The deadline for the submission of written comments is November 12, 2019.
The public hearing will be conducted at the Susquehanna River Basin Commission, 4423 N Front Street, Harrisburg, Pennsylvania.
Jason Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423; fax: (717) 238-2436.
Information concerning the applications for these projects is available at the Commission's Water Application and Approval Viewer at
The public hearing will cover a proposed rulemaking and consumptive use mitigation policy, as well as proposed amendments to the Commission's Regulatory Program Fee Schedule as posted on the SRBC Public Hearing web page at
1. Project Sponsor and Facility: Cabot Oil & Gas Corporation (Tunkhannock Creek), Lenox Township, Susquehanna County, Pa. Application for renewal of surface water withdrawal of up to 1.500 mgd (peak day) (Docket No. 20151201).
2. Project Sponsor and Facility: Chester Water Authority, East Nottingham Township, Chester County, Pa. Application for consumptive use of up to 60.000 mgd (peak day).
3. Project Sponsor and Facility: Town of Cortlandville, Cortland County, N.Y. Application for groundwater withdrawal of up to 1.300 mgd (30-day average) from Lime Hollow Well 2.
4. Project Sponsor and Facility: Town of Cortlandville, Cortland County, N.Y. Application for groundwater withdrawal of up to 1.300 mgd (30-day average) from Lime Hollow Well 7.
5. Project Sponsor and Facility: Town of Cortlandville, Cortland County, N.Y. Application for groundwater withdrawal of up to 1.008 mgd (30-day average) from the Terrace Road Well.
6. Project Sponsor: Graymont (PA) Inc. Project Facility: Pleasant Gap Facility, Spring Township, Centre County, Pa. Modification to increase consumptive use by an additional 0.098 mgd (30-day average), for a total consumptive use of up to 0.720 mgd (30-day average), and change limits from peak day to 30-day average (Docket No. 20050306).
7. Project Sponsor: Hazleton City Authority. Project Facility: Hazleton Division, Hazle Township, Luzerne County, Pa. Application for groundwater withdrawal of up to 0.354 mgd (30-day average) from Barnes Run Well 3.
8. Project Sponsor and Facility: Leola Sewer Authority (will be issued to Upper Leacock Township Municipal Authority), Upper Leacock Township, Lancaster County, Pa. Application for renewal of groundwater withdrawal of up to 0.263 mgd (30-day average) from Well 16 (Docket No. 19890702).
9. Project Sponsor and Facility: New Holland Borough Authority, New Holland Borough, Lancaster County, Pa. Application for groundwater withdrawal of up to 0.860 mgd (30-day average) from Well 5.
10. Project Sponsor and Facility: Pennsylvania State University, College Township, Centre County, Pa. Application for renewal of consumptive use of up to 2.622 mgd (peak day) (Docket No. 19890106).
11. Project Sponsor and Facility: Pennsylvania State University, College Township, Centre County, Pa. Application for renewal of groundwater withdrawal of up to 1.728 mgd (30-day average) from Well UN-33 (Docket No. 19890106).
12. Project Sponsor and Facility: Pennsylvania State University, College Township, Centre County, Pa. Application for renewal of groundwater withdrawal of up to 1.678 mgd (30-day average) from Well UN-34 (Docket No. 19890106).
13. Project Sponsor and Facility: Pennsylvania State University, College Township, Centre County, Pa. Application for renewal of groundwater withdrawal of up to 1.728 mgd (30-day average) from Well UN-35 (Docket No. 19890106).
14. Project Sponsor: Pixelle Specialty Solutions LLC. Project Facility: Spring Grove Mill (Codorus Creek—New Filter Plant Intake), Spring Grove Borough, York County, Pa. Applications for consumptive use of up to 3.650 mgd (peak day) and surface water withdrawal of up to 19.800 mgd (peak day).
15. Project Sponsor: Pixelle Specialty Solutions LLC. Project Facility: Spring Grove Mill (Codorus Creek—Old Filter Plant Intake), Spring Grove Borough, York County, Pa. Application for surface water withdrawal of up to 6.000 mgd (peak day).
16. Project Sponsor: Pixelle Specialty Solutions LLC. Project Facility: Spring Grove Mill (unnamed tributary to Codorus Creek—Kessler Pond Intake), Spring Grove Borough, York County, Pa. Application for surface water withdrawal of up to 0.750 mgd (peak day).
17. Project Sponsor and Facility: Sugar Hollow Water Services LLC (Susquehanna River), Eaton Township, Wyoming County, Pa. Application for renewal of surface water withdrawal of up to 1.500 mgd (peak day) (Docket No. 20151204).
18. Project Sponsor and Facility: SWN Production Company, LLC (Susquehanna River), Great Bend Township, Susquehanna County, Pa. Application for renewal of surface water withdrawal of up to 2.000 mgd (peak day) (Docket No. 20151205).
19. Project Sponsor and Facility: City of Aberdeen, Harford County, Md. Modifications to extend the approval term of the consumptive use, surface water withdrawal, and out-of-basin diversion approval (Docket No. 20021210) to allow additional time for evaluation of the continued use of the source for the Aberdeen Proving Ground-Aberdeen Area.
20. Project Sponsor and Facility: Chester Water Authority, East Nottingham Township, Chester County, Pa. Application for an out-of-basin diversion of up to 60.000 mgd (peak day) from the Susquehanna River and Octoraro Reservoir.
21. Project Sponsor and Facility: New York State Canal Corporation (Middle Branch Tioughnioga Creek), Towns of DeRuyter and Cazenovia, Madison County, and Town of Fabius, Onondaga County, N.Y. Applications for surface water withdrawal of up to 4.300 mgd (peak day), consumptive use of up to 4.300 mgd (peak day), and out-of-basin diversion of up to 4.300 mgd (peak day) from Middle Branch Tioughnioga Creek.
22. Project Sponsor: Seneca Resources Company, LLC. Project Facility: Impoundment 1, receiving groundwater from various sources, Sergeant and Norwich Townships, McKean County, Pa. Application for into-basin diversion from the Ohio River Basin of up to 2.517 mgd (peak day) (Docket No. 20141216).
23. Project Sponsor and Facility: Bucknell University, East Buffalo Township, Union County, Pa. Conforming the grandfathering amount with the forthcoming determination for a groundwater withdrawal up to 0.046 mgd (30-day average) from Well 2 and up to 0.116 mgd (30-day average) from Well 3 (Docket No. 20021008).
24. Project Sponsor and Facility: Manada Golf Club, Inc., East Hanover Township, Dauphin County, Pa. Conforming the grandfathered amount with the forthcoming determination for a withdrawal of up to 0.071 mgd (30-day average) from the 4th Tee Well, up to 0.036 mgd (30-day average) from the 5th Tee Well, and up to 0.036 mgd (30-day average) from the Barn Well (Docket No. 20020614).
25. Project Sponsor: Pennsylvania Fish & Boat Commission. Project Facility: Pleasant Gap State Fish Hatchery, Benner Township, Centre County, Pa. Conforming the grandfathering amount with the forthcoming determination for a withdrawal of up to 5.056 mgd (30-day average) from Blue and East Springs, up to 0.930 mgd (30-day average) from Hoy and Shugert Springs, and up to 1.000 mgd (30-day average) from Logan Branch (Docket No. 20000601).
Interested parties may appear at the hearing to offer comments to the Commission on any business listed above required to be subject of a public hearing. The presiding officer reserves the right to limit oral statements in the interest of time and to otherwise control the course of the hearing. Access to the hearing room will begin at 2:00 p.m. and Commission staff will be available for questions prior to the commencement of the hearing. Guidelines for the public hearing are posted on the Commission's website,
Pub. L. 91-575, 84 Stat. 1509
Office of the United States Trade Representative.
Notice of product exclusions.
Effective August 23, 2018, the U.S. Trade Representative imposed additional duties on goods of China with an annual trade value of approximately $16 billion as part of the
The product exclusions announced in this notice will apply as of the August 23, 2018 effective date of the $16 billion action, and will extend for one year after the publication of this notice. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
For general questions about this notice, contact Assistant General Counsels Philip Butler or Megan Grimball, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For specific questions on customs classification or implementation of the product exclusions identified in the Annex to this notice, contact
For background on the proceedings in this investigation, please see the prior notices issued in the investigation, including 82 FR 40213 (August 23, 2017), 83 FR 14906 (April 6, 2018), 83 FR 28710 (June 20, 2018), 83 FR 33608 (July 17, 2018), 83 FR 38760 (August 7, 2018), 83 FR 40823 (August 16, 2018), 83 FR 47236 (September 18, 2018), 83 FR 47974 (September 21, 2018), 83 FR 65198 (December 19, 2018), 84 FR 7966 (March 5, 2019), 84 FR 20459 (May 9, 2019), 84 FR 29576 (June 24, 2019), 84 FR 37381 (July 31, 2019), and 84 FR 49600 (September 20, 2019).
Effective August 23, 2018, the U.S. Trade Representative imposed additional 25 percent duties on goods of China classified in 279 8-digit subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), with an approximate annual trade value of $16 billion.
Under the September 18 notice, requests for exclusion had to identify the product subject to the request in terms of the physical characteristics that distinguish the product from other products within the relevant 8-digit subheading covered by the $16 billion action. Requestors also had to provide the 10-digit subheading of the HTSUS most applicable to the particular product requested for exclusion, and could submit information on the ability of U.S. Customs and Border Protection to administer the requested exclusion. Requestors were asked to provide the quantity and value of the Chinese-origin product that the requestor purchased in the last three years. With regard to the rationale for the requested exclusion, requests had to address the following factors:
• Whether the particular product is available only from China and specifically whether the particular product and/or a comparable product is available from sources in the United States and/or third countries.
• Whether the imposition of additional duties on the particular product would cause severe economic harm to the requestor or other U.S. interests.
• Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.
The September 18 notice stated that the U.S. Trade Representative would take into account whether an exclusion would undermine the objective of the Section 301 investigation.
The September 18 notice required submission of requests for exclusion from the $16 billion action no later than December 18, 2018, and noted that the U.S. Trade Representative periodically would announce decisions. In July 2019, the U.S. Trade Representative granted an initial set of exclusion requests.
Based on the evaluation of the factors set out in the September 18 notice, which are summarized above, pursuant to sections 301(b), 301(c), and 307(a) of the Trade Act of 1974, as amended, and in accordance with the advice of the interagency Section 301 Committee, the U.S. Trade Representative has determined to grant the product exclusions set out in the Annex to this notice. The U.S. Trade Representative's determination also takes into account advice from advisory committees and any public comments on the pertinent exclusion requests.
As set out in the Annex, the exclusions are reflected in 111 specially prepared product descriptions, which cover 382 separate exclusion requests.
In accordance with the September 18 notice, the exclusions are available for any product that meets the description in the Annex, regardless of whether the importer filed an exclusion request. Further, the scope of each exclusion is governed by the scope of the 10-digit HTSUS subheadings and product descriptions in the Annex to this notice, and not by the product descriptions set out in any particular request for exclusion.
Paragraph A, subparagraphs (3)-(5) are conforming amendments to the HTSUS reflecting the modification made by the Annex.
Paragraph B and C of the Annex correct errors by removing U.S. notes 20(v)(55) and 20(v)(88) of subchapter III of chapter 99 of the HTSUS, as set out in the Annex to the notice published at 84 FR 49600 (September 20, 2019).
As stated in the September 18, 2018 notice, the exclusions will apply as of the August 23, 2018 effective date of the $16 billion action, and extend for one year after the publication of this notice. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
The U.S. Trade Representative will continue to issue determinations on pending requests on a periodic basis.
Office of the United States Trade Representative.
Notice of product exclusions and amendments.
Effective July 6, 2018, the U.S. Trade Representative imposed additional duties on goods of China with an annual trade value of approximately $34 billion as part of the action in the Section 301 investigation of China's acts, policies, and practices related to technology transfer, intellectual property, and innovation. The U.S. Trade Representative's determination included a decision to establish a product exclusion process. The U.S. Trade Representative initiated the exclusion process in July 2018, and stakeholders have submitted requests for the exclusion of specific products. In December 2018, and March, April, May, June, July and September 2019, the U.S. Trade Representative granted exclusion requests. This notice announces the U.S. Trade Representative's determination to grant additional exclusion requests, as specified in the Annex to this notice. The U.S. Trade Representative will continue to issue decisions as necessary. This notice also corrects errors by removing certain notes in the Harmonized Tariff Schedule of the United States.
The product exclusions announced in this notice will apply as of the July 6, 2018 effective date of the $34 billion action, and will extend for one year after the publication of this notice. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
For general questions about this notice, contact Assistant General Counsels Philip Butler or Megan Grimball, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For specific questions on customs classification or implementation of the product exclusions identified in the Annex to this notice, contact
For background on the proceedings in this investigation, please see the prior notices issued in the investigation, including 82 FR 40213 (August 23, 2017), 83 FR 14906 (April 6, 2018), 83 FR 28710 (June 20, 2018), 83 FR 33608 (July 17, 2018), 83 FR 38760 (August 7, 2018), 83 FR 40823 (August 16, 2018), 83 FR 47974 (September 21, 2018), 83 FR 65198 (December 19, 2018), 83 FR 67463 (December 28, 2018), 84 FR 7966 (March 5, 2019), 84 FR 11152 (March 25, 2019), 84 FR 16310 (April 18, 2019), 84 FR 21389 (May 14, 2019), 84 FR 25895 (June 4, 2019), 84 FR 32821 (July 9, 2019), and 84 FR 49564 (September 20, 2019).
Effective July 6, 2018, the U.S. Trade Representative imposed additional 25 percent duties on goods of China classified in 818 8-digit subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), with an approximate annual trade value of $34 billion.
Under the July 11 notice, requests for exclusion had to identify the product subject to the request in terms of the physical characteristics that distinguish the product from other products within the relevant 8-digit subheading covered by the $34 billion action. Requestors also had to provide the 10-digit subheading of the HTSUS most applicable to the particular product requested for exclusion, and could submit information on the ability of U.S. Customs and Border Protection to administer the requested exclusion. Requestors were asked to provide the quantity and value of the Chinese-origin product that the requestor purchased in the last three years. With regard to the rationale for the requested exclusion, requests had to address the following factors:
• Whether the particular product is available only from China and specifically whether the particular product and/or a comparable product is available from sources in the United States and/or third countries.
• Whether the imposition of additional duties on the particular product would cause severe economic harm to the requestor or other U.S. interests.
• Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.
The July 11 notice stated that the U.S. Trade Representative would take into account whether an exclusion would undermine the objective of the Section 301 investigation.
The July 11 notice required submission of requests for exclusion from the $34 billion action no later than October 9, 2018, and noted that the U.S. Trade Representative would periodically announce decisions. In December 2018, the U.S. Trade Representative granted an initial set of exclusion requests.
Based on the evaluation of the factors set out in the July 11 notice, which are summarized above, pursuant to sections 301(b), 301(c), and 307(a) of the Trade Act of 1974, as amended, and in accordance with the advice of the interagency Section 301 Committee, the U.S. Trade Representative has determined to grant the product exclusions set out in the Annex to this notice. The U.S. Trade Representative's determination also takes into account advice from advisory committees and any public comments on the pertinent exclusion requests.
As set out in the Annex to this notice, the exclusions are reflected in 92 specially prepared product descriptions, which cover 129 separate exclusion requests.
In accordance with the July 11 notice, the exclusions are available for any product that meets the description in the Annex, regardless of whether the importer filed an exclusion request. Further, the scope of each exclusion is governed by the scope of the 10-digit HTSUS headings and product descriptions in the Annex to this notice, and not by the product descriptions set out in any particular request for exclusion.
Paragraph A, subparagraphs (3)-(5) are conforming amendments to the HTSUS reflecting the modification made by the Annex to this notice.
Paragraphs B, C, D, and E of the Annex correct errors by removing U.S. notes 20(q)(115), 20(q)(132), 20(q)(133), and 20(q)(216) of subchapter III of chapter 99 of the HTSUS. These notes relate to HTS subheadings covered by other tariff actions, but they were placed in the annex to the notice published at 84 FR 49564 (September 20, 2019), which excluded products under HTS subheadings covered by the $34 billion action.
As stated in the July 11 notice, the exclusions will apply as of the July 6, 2018 effective date of the $34 billion action, and extend for one year after the publication of this notice. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
The U.S. Trade Representative will continue to issue determinations on pending requests on a periodic basis.
Federal Aviation Administration (FAA), DOT.
Notice of Request to Rule on Release of Airport Property for Land Disposal at the Malden Regional Airport & Industrial Park (MAW), Malden, Missouri.
The FAA proposes to rule and invites public comment on the release of land at the Malden Regional Airport & Industrial Park (MAW), Malden, Missouri.
Comments must be received on or before November 1, 2019.
Comments on this application may be mailed or delivered to the FAA at the following address: Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901 Locust, Room 364, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must
Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901 Locust, Room 364, Kansas City, MO 64106, (816) 329-2603,
The FAA invites public comment on the request to release two tracts of land approximately 2.44 acres and 9.79 acres each, of airport property at the Malden Regional Airport & Industrial Park (MAW) under the provisions of 49 U.S.C. 47107(h)(2). This is a Surplus Property Airport. On May 21, 2019, the Airport Manager of the City of Malden requested a release from the FAA to sell two tracts of land, 2.44 acres and 9.79 acres each. Buyer, Walt Construction, LLC, will use the land for development. On September 25, 2019, the FAA determined that the request to release property at the Malden Regional Airport & Industrial Park (MAW) submitted by the Sponsor meets the procedural requirements of the Federal Aviation Administration and the release of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this notice.
The following is a brief overview of the request:
The Malden Regional Airport & Industrial Park (MAW) is proposing the release of airport property containing two tracts of land, 2.44 acres and 9.79 acres each, more or less. The release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The sale of the subject property will result in the land at the Malden Regional Airport & Industrial Park (M) being changed from aeronautical to non-aeronautical use and release the lands from the conditions of the Airport Improvement Program Grant Agreement Grant Assurances in order to dispose of the land. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market value for the property, which will be subsequently reinvested in another eligible airport improvement project for general aviation use.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
Department of Transportation, Federal Aviation Administration (FAA).
Notice of submission deadline.
Under this notice, the FAA announces the submission deadline of October 3, 2019, for Summer 2020 flight schedules at Newark Liberty International Airport (EWR). The deadline coincides with the schedule submission deadline for the International Air Transport Association (IATA) Slot Conference for the Summer 2020 scheduling season.
Schedules must be submitted no later than October 3, 2019.
Schedules may be submitted by mail to the Slot Administration Office, AGC-200, Office of the Chief Counsel, 800 Independence Avenue SW, Washington, DC 20591; facsimile: 202-267-7277; or by email to:
Al Meilus, Manager (Acting), Slot Administration Office, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267-2822; email
This document provides routine notice to carriers serving EWR, one of the capacity-constrained airports in the United States, of the upcoming schedule submission deadline for Summer 2020. The FAA has designated EWR as an IATA Level 2 airport consistent with the Worldwide Slot Guidelines (WSG).
For the Summer 2020 scheduling season at EWR, the FAA is primarily concerned about scheduled and other regularly conducted commercial operations from 0600 to 2300 Eastern Time (1000 to 0300 UTC). Carriers may submit schedules for the entire day in addition to the identified hours. Carriers should submit schedule information in sufficient detail including, at minimum, the marketing or operating carrier, flight number, scheduled time of operation, frequency, aircraft equipment, and effective dates. IATA standard schedule information format and data elements for communications at Level 2 airports in the IATA Standard Schedules Information Manual (SSIM) Chapter 6 may be used. The WSG provides additional information on schedule submissions at Level 2 airports.
The U.S. Summer 2020 scheduling season is from March 29, 2020, through October 24, 2020, in recognition of the IATA northern Summer scheduling period.
As stated in the WSG, schedule facilitation at a Level 2 airport is based on the following: (1) Schedule adjustments are mutually agreed upon between the airlines and the facilitator; (2) the intent is to avoid exceeding the airport's coordination parameters; (3) the concepts of historic precedence and series of slots do not apply at Level 2 airports; although WSG recommends giving priority to approved services that plan to operate unchanged from the previous equivalent season at Level 2 airports; and (4) the facilitator should adjust the smallest number of flights by the least amount of time necessary to avoid exceeding the airport's coordination parameters. Consistent with the WSG, the success of Level 2 in the U.S. depends on the voluntary cooperation of all carriers.
The FAA considers several factors and priorities as it reviews schedule
At Level 2 airports, the FAA seeks to improve communications with carriers and terminal schedule facilitators on potential runway schedule issues or terminal and gate issues that may affect the runway times. The FAA also seeks to reduce the time that carriers consider proposed offers on schedules. Retaining open offers for extended periods of time may delay the facilitation process for the airport. Reducing this delay is particularly important to allow the FAA to make informed decisions at airports where operations in some hours are at or near the scheduling limits. The agency recognizes that there are circumstances that may require some schedules to remain open. However, the FAA expects to substantially complete the review process on initial submissions each scheduling season within 30 days of the end of the Slot Conference. After this time, the agency would confirm the acceptance of proposed offers, as applicable, or issue a denial of schedule requests.
Slot management in the United States differs in some respect from procedures in other countries. In the United States, the FAA is responsible for facilitation and coordination of runway access for takeoffs and landings at Level 2 and Level 3 airports; however, the airport authority or its designee is responsible for facilitation and coordination of terminal/gate/airport facility access. The process with the individual airports for terminal access and other airport services is separate from, and in addition to, the FAA schedule review based on runway capacity. Approval from the FAA for runway availability and the airport authority for airport facility availability is necessary before implementing schedule plans. Carriers seeking terminal approval at EWR may contact the terminal facilitator at
Generally, the FAA uses average hourly runway capacity throughput for airports and performance metrics in its schedule review at Level 2 airports.
The FAA notes that it remains committed to the implementation of reference IDs for administrative tracking at EWR, as discussed in the Notice of Schedule Submission for the Winter 2019/2020 Scheduling Season, 84 FR 18630 at 18632 (May 1, 2019), and will continue working with carriers to implement this tracking tool.
Finally, the FAA notes that the schedule information submitted by carriers to the FAA may be subject to disclosure under the Freedom of Information Act (FOIA). The WSG also provides for release of information at certain stages of slot coordination and schedule facilitation. In general, once it acts on a schedule submission or slot request, the FAA may release information on slot allocation or similar slot transactions or schedule information reviewed as part of the schedule facilitation process. The FAA does not expect that practice to change and most slot and schedule information would not be exempt from release under FOIA. The FAA recognizes that some carriers may submit information on schedule plans that is both customarily and actually treated as private. Carriers that submit such confidential schedule information should clearly mark the information as “PROPIN”. The FAA will take the necessary steps to protect properly designated information to the extent allowable by law.
The FAA regularly monitors operations and performance metrics at EWR to identify ways to improve operational efficiency and achieve delay reductions in a Level 2 environment. Demand for access to EWR and the New York City area remains high. Requests for flights at EWR have exceeded the scheduling limits in the early morning and for multiple hours in the afternoon and evening. The FAA has regularly advised carriers that it would not be able to accommodate requests for new or retimed operations into peak hours and worked with carriers to identify alternative times that were available. In some cases, carriers have been able to swap with other carriers for their preferred times. Carriers may continue to seek swaps in order to operate within the peak, but are ultimately expected to operate according to the FAA's approved runway times. The FAA also continues to seek the voluntary cooperation of all carriers operating in peak hours to retime operations out of the peak to meet the scheduling limits described below and improve performance at EWR, benefitting all carriers, passengers, and other customers.
For the Summer 2020 season, the hourly scheduling limit remains at 79 operations and 43 operations per half-hour.
The FAA notes there are periods when the demand in half-hours and consecutive half-hours exceeds the optimum runway capacity and the scheduling limits in this notice.
Consistent with the WSG, carriers should be prepared to adjust schedules to meet the scheduling limits in order to minimize potential congestion and delay. Carriers are reminded that runway approval must be obtained from the FAA in addition to any requirements for approval from the airport terminal or other facilities prior to operating flights at the airport. As the FAA has previously stated, if voluntary schedule adjustments are not achievable, consideration may be given to whether a Level 3 designation is necessary and whether a schedule reduction meeting pursuant to 49 U.S.C. 41722 is necessary. If the FAA reinstates Level 3 at EWR, historic precedence would not be granted for any operation conducted without FAA approval under Level 2.
On July 25, 2019, Southwest Airlines (Southwest) announced that it will cease operations at EWR effective November 3, 2019.
On a peak summer weekday, Southwest operated up to 40 operations at EWR, a portion of which (approximately 16) were in the peak periods. As noted previously, several hours in the high demand periods at EWR are above the FAA's stated scheduling limits. In an effort to improve performance at EWR, the FAA has consistently stated in prior seasonal schedule submission notices that new operations will not be approved unless the period is below the FAA scheduling limits.
The FAA will continue to follow the established schedule facilitation process at EWR consistent with the IATA WSG and as described in prior schedule submission notices.
The FAA is aware of preliminary plans by the Port Authority of New York and New Jersey (PANYNJ) to reconstruct Runway 4R/22L at EWR. The FAA is closely monitoring the scope and timing of this project. Once the details of this project are available, the FAA plans to work with the PANYNJ and carriers to assess operational impacts and potential changes in delays and to develop mitigation strategies, as appropriate.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 22, 2019.
Send comments identified by docket number FAA-2019-0626 using any of the following methods:
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Alphonso Pendergrass (202) 267-4713, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
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 November 1, 2019.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Jude Sellers by email at:
Federal Aviation Administration, DOT.
Notice of availability of finding of no significant impact/record of decision.
The Federal Aviation Administration (FAA) is issuing this notice to advise the public that it has issued a Finding of No Significant Impact (FONSI)/Record of Decision (ROD) for the Environmental Assessment (EA) that evaluated the rehabilitation of an existing 5.4-mile service road and construction of two connecting service roads at Jackson Medgar Wiley Evers International Airport (JAN) in Jackson, Mississippi. The FONSI/ROD provides final agency determination and approval for those federal actions by the FAA necessary to implement the project. The effective date of the FAA's determination on the FONSI/ROD is August 30, 2019.
Brian Hendry, Community Planner, Jackson Airports District Office, 100 West Cross St., Suite B, Jackson, MS 39208. Telephone (601) 664-9897.
The Jackson Municipal Airport Authority (JMAA) has requested financial assistance to rehabilitate an existing 5.4-mile service road and construction of two connecting service roads. Issuing an Airport Improvement Program Grant is considered a Federal action and requires and environmental determination by the FAA.
JMAA has completed an EA for the project known as the Rehabilitation of Outer Perimeter Service Road. The project involves the rehabilitation an existing 5.4-mile service road as well as construction of two connecting service roads that will provide safer and more secure access to the service perimeter road of Jackson Medgar Wiley Evers International Airport (JAN). The EA was prepared in accordance with the National Environmental Policy Act of 1969 (NEPA), Council on Environmental Quality (CEQ) Regulations, 40 Code of Federal Regulations (CFR) Parts 1500-1508, and FAA Orders 1050.1F and 5050.4B.
The objective of the EA was to evaluate alternatives that met the airport sponsor's purpose and need statement. The airport sponsor's purpose and need statement is the rehabilitation of the Perimeter Service Road that will enhance the safety and security of the airport by rehabilitating the existing perimeter service road inside the perimeter fence as well as paving new roadway areas for contiguous access. These improvements will provide airport owned and emergency vehicle access to all areas of the airfield to support Aircraft Rescue and Firefighting (“ARFF”) functions and security patrols performed by JMAA's Airport Operations Department staff. Currently, the JAN property boundary lacks perimeter service roads in certain areas making access for Airport Operations extremely difficult, especially after rainy conditions. (See Appendix A—Site Layout Map).
Two (2) alternatives to the proposed action were examined to determine feasibility and ability to meet the purpose and need.
The EA documents show that the No Action Alternative would not satisfy the purpose and need statement.
As addressed in the EA, Alternative 1 has the potential to affect wetland areas on the airport property comprised of frequently to periodically mowed herbaceous field. The delineated wetland areas are represented within Appendix E of the EA. The Airport will secure the necessary construction and other permits required by MDEQ and USACE regarding Section 401 water quality certification. Section 404 permit(s) as administered by the USACE will be secured prior to construction. The Preferred Alternative could require an Individual Section 404 permit. Refined design will dictate impacts and thus the necessary permitting process. Any mitigation for unavoidable impacts will occur at a USACE-approved mitigation bank.
As part of the EA process, the FAA coordinated with the U.S. Army Corps. Of Engineers. The project was coordinated with the U.S. Army Corps of Engineers (USACE) as the key federal agency with jurisdiction to define wetlands in the United States. The preferred alternative was chosen over the No Action Alternative due to lack of access via the service road that would compromise airport safety and accessibility in case of emergency and for regular operations. It has been determined there will be wetland impacts of 0.52 acres. USACE indicates the proposed work will require a permit. Mitigation will be required as part of USACE's permitting process. (USACE April 26, 2019 letter Appendix E).
The EA included outreach with other federal, state, and local agencies such as U.S. Fish and Wildlife Service. Dept. of Transporation, and the MS Dept. of Archives and History (State Historic Preserviation Office)
After reviewing the EA, the FAA concluded impacts, with mitigation, would be below the level of significance and issued the FONSI/ROD on August 30, 2019. The FONSI/ROD presents the FAA's final decision and approvals of the actions identified, including those taken under the provisions of Title 49 of the United Sates Code, Subtitle VII, Parts A and B. These actions constitute a final order of the Administrator subject to review by the Court of Appeals of the United States in accordance with the provisions of 49 U.S.C. 46110.
Federal Aviation Administration, Jackson Airports District Office, 100 West Cross St. Suite B, Jackson, MS 39208.
* Please call (601) 664-9897 to schedule an appointment to view documents at this location.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for 79 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these individuals to continue to operate CMVs in interstate commerce without meeting the vision requirements in one eye.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before November 1, 2019.
You may submit comments identified by the Federal Docket Management System (FDMS) Docket No. FMCSA-1999-5578, Docket No. FMCSA-1999-5748, Docket No. FMCSA-2000-7165, Docket No. FMCSA-2000-7918, Docket No. FMCSA-2003-15892, Docket No. FMCSA-2004-17984, Docket No. FMCSA-2005-20560, Docket No. FMCSA-2005-21711, Docket No. FMCSA-2007-29019, Docket No. FMCSA-2008-0021, Docket No. FMCSA-2009-0086, Docket No. FMCSA-2009-0121, Docket No. FMCSA-2009-0154, Docket No. FMCSA-2009-0206, Docket No. FMCSA-2010-0161, Docket No. FMCSA-2011-0057, Docket No. FMCSA-2011-0124, Docket No. FMCSA-2011-0141, Docket No. FMCSA-2013-0025, Docket No. FMCSA-2013-0027, Docket No. FMCSA-2013-0029, Docket No. FMCSA-2014-0300, Docket No. FMCSA-2014-0304, Docket No. FMCSA-2015-0048, Docket No. FMCSA-2015-0052, Docket No. FMCSA-2015-0055, Docket No. FMCSA-2015-0056, Docket No. FMCSA-2016-0377, Docket No. FMCSA-2017-0017, Docket No. FMCSA-2017-0020, Docket No. FMCSA-2017-0022, or Docket No. FMCSA-2017-0023 using any of the following methods:
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To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-1999-5578; FMCSA-1999-5748; FMCSA-2000-7165; FMCSA-2000-7918; FMCSA-2003-15892; FMCSA-2004-17984; FMCSA-2005-20560; FMCSA-2005-21711; FMCSA-2007-29019; FMCSA-2008-0021; FMCSA-2009-0086; FMCSA-2009-0121; FMCSA-2009-0154; FMCSA-2009-0206; FMCSA-2010-0161; FMCSA-2011-0057; FMCSA-2011-0124; FMCSA-2011-0141; FMCSA-2013-0025; FMCSA-2013-0027; FMCSA-2013-0029; FMCSA-2014-0300; FMCSA-2014-0304; FMCSA-2015-0048; FMCSA-2015-0052; FMCSA-2015-0055; FMCSA-2015-0056; FMCSA-2016-0377; FMCSA-2017-0017; FMCSA-2017-0020; FMCSA-2017-0022; or FMCSA-2017-0023), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
To view comments, as well as any documents mentioned in this notice as being available in the docket, go to
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statute also allows the Agency to renew exemptions at the end of the 5-year period. FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding vision found in 49 CFR 391.41(b)(10) states that a person is physically qualified to drive a CMV if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber.
The 79 individuals listed in this notice have requested renewal of their exemptions from the vision standard in § 391.41(b)(10), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable 2-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA will take immediate steps to revoke the exemption of a driver.
In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the 79 applicants has satisfied the renewal conditions for obtaining an exemption from the vision standard (see 64 FR 27027; 64 FR 40404; 64 FR 51568; 64 FR 66962; 65 FR 33406; 65 FR 57234; 65 FR 66286; 66 FR 13825; 66 FR 63289; 68 FR 13360; 68 FR 52811; 68 FR 61860; 68 FR 64944; 69 FR 33997; 69 FR 61292; 70 FR 12265; 70 FR 17504; 70 FR 30997; 70 FR 48797; 70 FR 61165; 70 FR 61493; 70 FR 67776; 71 FR 55820; 71 FR 62147; 72 FR 11426; 72 FR 27624; 72 FR 40362; 72 FR 54971; 72 FR 58362; 72 FR 64273; 72 FR 67344; 73 FR 15567; 73 FR 27015; 73 FR 65009; 74 FR 8302; 74 FR 19267; 74 FR 19270; 74 FR 26461; 74 FR 28094; 74 FR 34394; 74 FR 34630; 74 FR 37295; 74 FR 43217; 74 FR 48343; 74 FR 49069; 74 FR 53581; 74 FR 57551; 74 FR 57553; 74 FR 62632; 75 FR 19674; 75 FR 39725; 75 FR 61833; 76 FR 4413; 76 FR 12216; 76 FR 18824; 76 FR 25762; 76 FR 29024; 76 FR 32016; 76 FR 34136; 76 FR 37168; 76 FR 40445; 76 FR 53710; 76 FR 54530; 76 FR 55463; 76 FR 62143; 76 FR 64171; 76 FR 66123; 76 FR 70212; 76 FR 70215; 77 FR 23797; 77 FR 56262; 78 FR 18667; 78 FR 20376; 78 FR 24300; 78 FR 24798; 78 FR 32703; 78 FR 34141; 78 FR 34143; 78 FR 46407; 78 FR 51269; 78 FR 52602; 78 FR 64280; 78 FR 68137; 78 FR 77782; 79 FR 4531; 79 FR 23797; 79 FR 24298; 79 FR 51642; 80 FR 2473; 80 FR 14223; 80 FR 16500; 80 FR 18693; 80 FR 25768; 80 FR 26139; 80 FR 26320; 80 FR 29149; 80 FR 31635; 80 FR 33011; 80 FR 35699; 80 FR 37718; 80 FR 44188; 80 FR 48404; 80 FR 48409; 80 FR 49302; 80 FR 50917; 80 FR 59225; 80 FR 59230; 80 FR 62161; 80 FR 63869; 81 FR 1284; 81 FR 71173; 82 FR 13045; 82 FR 18956; 82 FR 20962; 82 FR 32919; 82 FR 33542; 82 FR 34564; 82 FR 37499; 82 FR 37504; 82 FR 43647; 82 FR 47296; 82 FR 47309; 82 FR 47312; 83 FR 2289; 83 FR 3861; 83 FR 4537). They have submitted evidence showing that the vision in the better eye continues to meet the requirement specified at § 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past 2 years indicates each applicant continues to meet the vision exemption requirements. These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), the following groups of drivers received renewed exemptions in the month of November and are discussed below. As of November 3, 2019, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 56 individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (65 FR 33406; 65 FR 57234; 65 FR 66286; 66 FR 13825; 68 FR 13360; 68 FR 52811; 68 FR 61860; 69 FR 33997; 69 FR 61292; 70 FR 12265; 70 FR 48797; 70 FR 61165; 70 FR 61493; 71 FR 62147; 72 FR 11426; 72 FR 27624; 72 FR 54971; 73 FR 15567; 73 FR 27015; 74 FR 8302; 74 FR 19267; 74 FR 19270; 74 FR 26461; 74 FR 28094; 74 FR 34630; 74 FR 37295; 74 FR 48343; 74 FR 49069; 74 FR 53581; 75 FR 19674; 75 FR 39725; 75 FR 61833; 76 FR 12216; 76 FR 25762; 76 FR 32016; 76 FR 37168; 76 FR 40445; 76 FR 53710; 76 FR 62143; 76 FR 64171; 77 FR 23797; 77 FR 56262; 78 FR 18667; 78 FR 20376; 78 FR 24300; 78 FR 24798; 78 FR 32703; 78 FR 34141; 78 FR 34143; 78 FR 46407; 78 FR 51269; 78 FR 52602; 78 FR 68137; 78 FR 77782; 79 FR 4531; 79 FR 23797; 79 FR 51642; 80 FR 2473; 80 FR 14223; 80 FR 16500; 80 FR 18693; 80 FR 25768; 80 FR 26139; 80 FR 26320; 80 FR 29149; 80 FR 31635; 80 FR 33011; 80 FR 35699; 80 FR 37718; 80 FR 44188; 80 FR 48404; 80 FR 48409; 80 FR 49302; 80 FR 50917; 80 FR 59225; 80 FR 59230; 80 FR 62161; 81 FR 1284; 81 FR 71173; 82 FR 13045; 82 FR 18956; 82 FR 20962; 82 FR 32919; 82 FR 33542;
The drivers were included in docket numbers FMCSA-2000-7165; FMCSA-2000-7918; FMCSA-2003-15892; FMCSA-2004-17984; FMCSA-2005-21711; FMCSA-2008-0021; FMCSA-2009-0086; FMCSA-2009-0121; FMCSA-2009-0154; FMCSA-2010-0161; FMCSA-2011-0141; FMCSA-2013-0025; FMCSA-2013-0027; FMCSA-2013-0029; FMCSA-2014-0300; FMCSA-2014-0304; FMCSA-2015-0048; FMCSA-2015-0052; FMCSA-2015-0055; FMCSA-2015-0056; FMCSA-2016-0377; FMCSA-2017-0017; FMCSA-2017-0020; FMCSA-2017-0022; and FMCSA-2017-0023. Their exemptions are applicable as of November 3, 2019, and will expire on November 3, 2021.
As of November 6, 2019, and in accordance with 49 U.S.C. 31136(e) and 31315, the following nine individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (70 FR 17504; 70 FR 30997; 70 FR 48797; 70 FR 61493; 72 FR 40362; 72 FR 54971; 74 FR 34394; 74 FR 43217; 74 FR 49069; 74 FR 57551; 76 FR 18824; 76 FR 29024; 76 FR 34136; 76 FR 54530; 76 FR 55463; 76 FR 66123; 78 FR 77782; 79 FR 24298; 80 FR 63869; 83 FR 3861):
The drivers were included in docket numbers FMCSA-2005-20560; FMCSA-2005-21711; FMCSA-2009-0206; FMCSA-2011-0057; and FMCSA-2011-0124. Their exemptions are applicable as of November 6, 2019, and will expire on November 6, 2021.
As of November 28, 2019, and in accordance with 49 U.S.C. 31136(e) and 31315, the following eight individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (69 FR 33997; 69 FR 61292; 70 FR 48797; 70 FR 61493; 71 FR 55820; 72 FR 54971; 72 FR 58362; 72 FR 67344; 73 FR 65009; 74 FR 49069; 74 FR 57553; 76 FR 4413; 76 FR 70212; 80 FR 63869; 83 FR 3861):
The drivers were included in docket numbers FMCSA-2004-17984; FMCSA-2005-21711; and FMCSA-2007-29019. Their exemptions are applicable as of November 28, 2019, and will expire on November 28, 2021.
As of November 30, 2019, and in accordance with 49 U.S.C. 31136(e) and 31315, the following six individuals have satisfied the renewal conditions for obtaining an exemption from the vision requirement in the FMCSRs for interstate CMV drivers (64 FR 27027; 64 FR 40404; 64 FR 51568; 64 FR 66962; 66 FR 63289; 68 FR 64944; 70 FR 67776; 72 FR 64273; 74 FR 62632; 76 FR 70215; 78 FR 64280; 80 FR 63869; 83 FR 3861):
The drivers were included in docket numbers FMCSA-1999-5578; and FMCSA-1999-5748. Their exemptions are applicable as of November 30, 2019, and will expire on November 30, 2021.
The exemptions are extended subject to the following conditions: (1) Each driver must undergo an annual physical examination (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a certified medical examiner (ME), as defined by § 390.5, who attests that the driver is otherwise physically qualified under § 391.41; (2) each driver must provide a copy of the ophthalmologist's or optometrist's report to the ME at the time of the annual medical examination; and (3) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file or keep a copy of his/her driver's qualification if he/her is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 79 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the vision requirement in
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Announcement of Charter Renewal of the Motor Carrier Safety Advisory Committee (MCSAC).
FMCSA announces the charter renewal of the MCSAC, a Federal advisory committee that provides the Agency with advice and recommendations on motor carrier safety programs and motor carrier safety regulations through a consensus process. This charter renewal will take effect on September 27, 2019, and will expire after 2 years.
Ms. Shannon L. Watson, Senior Advisor to the Associate Administrator for Policy, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 385-2395,
Pursuant to Section 14 of the Federal Advisory Committee Act (Pub. L. 92-463), FMCSA is giving notice of the charter renewal for the MCSAC. The MCSAC was established to provide FMCSA with advice and recommendations on motor carrier safety programs and motor carrier safety regulations.
The MCSAC comprises up to 25 voting representatives from safety advocacy, safety enforcement, labor, and industry stakeholders of motor carrier safety. The diversity of the Committee ensures the requisite range of views and expertise necessary to discharge its responsibilities. See the MCSAC website for details on pending tasks at
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, FRA seeks approval of the Information Collection Requests (ICRs) abstracted below. Before submitting these ICRs to the Office of Management and Budget (OMB) for approval, FRA is soliciting public comment on specific aspects of the activities identified below.
Interested persons are invited to submit comments on or before December 2, 2019.
Submit written comments on the ICRs activities by mail to either: Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Analysis Division, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; or Ms. Kim Toone, Information Collection Clearance Officer, Office of Information Technology, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB Control Number 2130-XXXX,” (the relevant OMB control number for each ICR is listed below) and should also include the title of the ICR. Alternatively, comments may be emailed to Ms. Wells at
Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Analysis Division, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: (202) 493-0440) or Ms. Kim Toone, Information Collection Clearance Officer, Office of Information Technology, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: (202) 493-6132).
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days' notice to the public to allow comment on information collection activities before seeking OMB approval of the activities.
FRA believes that soliciting public comment may reduce the administrative and paperwork burdens associated with the collection of information that Federal regulations mandate. In summary, FRA reasons that comments received will advance three objectives: (1) Reduce reporting burdens; (2) organize information collection requirements in a “user-friendly” format to improve the use of such information; and (3) accurately assess the resources expended to retrieve and produce information requested.
The summaries below describe the ICRs that FRA will submit for OMB clearance as the PRA requires:
Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
Office of Foreign Assets Control, Treasury.
Notice.
The 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 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 Supplementary Information section for applicable date(s).
Case ID DPRK3-15706.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On September 13, 2019 OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
1. ANDARIEL, Korea, North; Secondary sanctions risk: North Korea Sanctions Regulations, sections 510.201 and 510.210 [DPRK3].
Identified as meeting the definition of the Government of North Korea as set forth in Section 9(d) of Executive Order 13722 because it is an agency, instrumentality, or controlled entity of the Government of North Korea.
2. BLUENOROFF (a.k.a. “APT 38”; a.k.a. “APT38”; a.k.a. “STARDUST CHOLLIMA”), Korea, North; Secondary sanctions risk: North Korea Sanctions Regulations, sections 510.201 and 510.210 [DPRK3].
Identified as meeting the definition of the Government of North Korea as set forth in Section 9(d) of Executive Order 13722 because it is an agency, instrumentality, or controlled entity of the Government of North Korea.
3. LAZARUS GROUP (a.k.a. “APPLEWORM”; a.k.a. “APT-C-26”; a.k.a. “GROUP 77”; a.k.a. “GUARDIANS OF PEACE”; a.k.a. “HIDDEN COBRA”; a.k.a. “OFFICE 91”; a.k.a. “RED DOT”; a.k.a. “TEMP.HERMIT”; a.k.a. “THE NEW ROMANTIC CYBER ARMY TEAM”; a.k.a. “WHOIS HACKING TEAM”; a.k.a. “ZINC”), Potonggang District, Pyongyang, Korea, North; Secondary sanctions risk: North Korea Sanctions Regulations, sections 510.201 and 510.210 [DPRK3].
Identified as meeting the definition of the Government of North Korea as set forth in Section 9(d) of Executive Order 13722 because it is an agency, instrumentality, or controlled entity of the Government of North Korea.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning updating of employer identification numbers.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Dr. Philippe Thomas, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Health Coverage Tax Credit (HCTC) Advance Payments.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Dr. Philippe Thomas, Internal
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Information Return for Build America Bonds and Recovery Zone Economic Development Bonds.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Dr. Philippe Thomas, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Biofuel Producer Credit.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Form 8282, Donee Information Return (Sale, Exchange, or Other Disposition of Donated Property) and Form 8283, Noncash Charitable Contributions.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Dr. Philippe Thomas, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the forms and instructions should be directed to Martha R. Brinson, at (202) 317-5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning taxation and reporting of REIT excess inclusion income.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Dr. Philippe Thomas, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning carryforward election of unused private activity bond volume cap.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Dr. Philippe Thomas, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning information returns for real estate mortgage investment conduits (REMICs) and issuers of collateralized debt obligations.
Written comments should be received on or before December 2, 2019 to be assured of consideration.
Direct all written comments to Dr. Philippe Thomas, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before December 2, 2019.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Danny S. Green at (202) 421-1354.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973, as amended (Act), for the southern mountain caribou distinct population segment (DPS) of woodland caribou (
This rule is effective November 1, 2019.
This final rule is available at
Greg Hughes, State Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243; facsimile 208-378-5262. Persons who are hearing impaired or speech impaired may call the Federal Relay Service at 800-877-8339 for TTY (telephone typewriter or teletypewriter) assistance 24 hours a day, 7 days a week.
• By defining the southern mountain caribou DPS, which includes the currently listed southern Selkirk Mountains population of woodland caribou;
• By designating the status of the southern mountain caribou DPS as endangered under the Act; and
• By reaffirming the designation of approximately 30,010 ac (12,145 ha) as critical habitat for the southern mountain caribou DPS.
We listed the southern Selkirk Mountains population of woodland caribou as endangered under the Act on February 29, 1984 (49 FR 7390). According to our “Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act” (DPS policy; 61 FR 4722, February 7, 1996), the appropriate application of the policy to pre-1996 DPS listings shall be considered in our 5-year reviews of the status of the species. We conducted a DPS analysis during our 2008 5-year review, which concluded that the southern Selkirk Mountains population of woodland caribou met both the discreteness and significance elements of the DPS policy. However, we now recognize that this analysis did not consider the significance of this population relative to the appropriate taxon. The purpose of the DPS policy is to set forth standards for determining which populations of vertebrate organisms that are subsets of species or subspecies may qualify as entities that we may list as endangered or threatened under the Act. In the 2008 5-year review, we assessed the significance of the southern Selkirk Mountains
Based on information we received in comments regarding how we described the coat color of caribou during breeding and winter, we modified our description to reflect that caribou coat color and pattern is variable (Geist 2007) and winter pelage varies from almost white to dark brown (see
In our May 8, 2014, proposed rule (79 FR 26504), we noted that woodland caribou populations can be further broken down into subunits called “local populations.” The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) (2014, entire) uses the term “subpopulation” to refer to the same population subunits in Canada. In order to minimize confusion, we have conformed our terminology to that used by COSEWIC. Therefore, our proposed rule uses “subpopulations,” instead of “local populations,” to describe caribou subunits.
Caribou subpopulations represent groupings of individual woodland caribou that have overlapping ranges/movement patterns and breed with one another more frequently than they breed with caribou from other subpopulations. Subpopulations in southern British Columbia are thought to be a relatively recent phenomena resulting from habitat fragmentation and loss within the population of woodland caribou; historically, movement of caribou between subpopulations was likely.
Within the Status of the Southern Mountain Caribou DPS discussion in this final rule, we provide clarification on the number and names of subpopulations (both extant and recently extirpated) within the DPS, and describe how subpopulation names and groupings of subpopulations by Canada have changed through time. We also clarify that the range of the DPS in British Columbia, Canada, and the United States has declined by 60 percent since historical arrival of Europeans in British Columbia, according to Spalding (2000, p. 40). In our May 8, 2014 proposed rule (79 FR 26504), we stated the range of the DPS had declined by 40 percent, but this was specific to the British Columbia, Canada, portion of the DPS's range (
We updated the status of the southern mountain caribou DPS to reflect the most recent information contained in the COSEWIC report (2014, entire) pertaining to the number of individual caribou in each of the 15 extant subpopulations and the total estimated number of individuals in the DPS. We corrected the trend status of the Hart Ranges subpopulation to reflect that it is now declining, and to reflect that the overall trend of the DPS is declining and the rate of decline is accelerating. We also included additional information pertaining to population viability analyses conducted by Hatter (2006, entire,
We provided additional analysis pertaining to the isolation of subpopulations within the DPS as well as separation from other populations (
We included additional information pertaining to Canadian conservation efforts for woodland caribou, which include augmenting animals into the Purcells South subpopulation and wolf control efforts within several subpopulations within the DPS (under the Factor A analysis, below, see
In our May 8, 2014, proposed rule (79 FR 26504), we stated that further evaluation of existing regulatory mechanisms (Factor D) was needed before a final determination could be made as to the adequacy of existing regulatory mechanisms to address the threats affecting the status of the DPS. Notwithstanding the additional information learned regarding existing provincial laws and regulations of British Columbia, Canada, we conclude that, while the existing regulatory mechanisms in the United States and Canada enable the United States and Canada to ameliorate to some extent the identified threats to the southern mountain caribou DPS, the existing mechanisms do not completely alleviate the potential for the identified threats to affect the status of southern mountain caribou and their habitat.
In our May 8, 2014, proposed rule (79 FR 26504), we proposed to list the southern mountain caribou DPS as threatened. However, we have now determined that the status of, and threats to, the southern mountain caribou DPS warrant its listing as endangered. This determination is based on (1) the additional analysis referenced above and contained in the Status of the Southern Mountain Caribou DPS discussion below; and (2) the discussions of factors A (the present or threatened destruction, modification, or curtailment of its habitat or range), C (disease or predation), D (inadequacy of regulatory mechanisms) and E (other natural or manmade factors affecting its continued existence) in this final rule. The rationale for endangered status is summarized within the Determination section of this final rule. The May 8, 2014, proposed rule also contained a “Significant Portion of the Range” (SPR) analysis. That analysis was included in the proposed rule to conform to Service policy for listing rules at that time. However, subsequent to publishing the proposed rule, the Service revised its policy on when it is necessary to perform a SPR analysis (79 FR 37578, July 1, 2014).
In this case, because we found that the southern mountain DPS of woodland caribou is in danger of extinction throughout all of its range, per the Service's SPR Policy (79 FR 37578, July 1, 2014), the protections of the Act apply to each individual
Please refer to the proposed amended listing rule for the southern mountain caribou DPS (79 FR 26504; May 8, 2014) for a detailed description of previous Federal actions concerning this species. The May 8, 2014, proposed rule opened a 60-day public comment period, ending July 7, 2014. On June 10, 2014, we extended the public comment period on the proposed amended listing rule until August 6, 2014, and announced two public informational sessions and hearings (79 FR 33169). Public informational sessions and hearings were held in Sandpoint, Idaho, on June 25, 2014, and in Bonners Ferry, Idaho, on June 26, 2014 (79 FR 33169). On March 24, 2015, we reopened the public comment period on the proposed amended listing rule for an additional 30 days, ending on April 23, 2015, to allow the public time to review new information: A report from COSEWIC
In our May 8, 2014, proposed rule (79 FR 26504), we proposed to reaffirm the November 28, 2012, final critical habitat designation (77 FR 71042) for the southern Selkirk Mountains population of woodland caribou as it applies to the U.S. portion of the endangered southern mountain DPS of woodland caribou. However, on March 23, 2015, the Idaho District Court (
Please refer to the proposed listing rule for the southern mountain caribou DPS (79 FR 26504; May 8, 2014) for a summary of species information. Except for the following correction, there are no changes to the species information provided in that proposed rule. The sentence reading, “Their winter pelage varies from nearly white in Arctic caribou such as the Peary caribou, to dark brown in woodland caribou (COSEWIC 2011, pp. 10-11)” at 79 FR 26507 should instead read, “Breeding pelage is variable in color and patterning (Geist 2007), and winter pelage varies from almost white to dark brown.”
The National Marine Fisheries Service (NMFS) and the Service published a joint “Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act” (DPS Policy) on February 7, 1996 (61 FR 4722). According to the DPS policy, any proposed or final rule designating a DPS as endangered or threatened under the Act should clearly analyze the action using the following three elements: Discreteness of the population segment in relation to the remainder of the taxon to which it belongs; the significance of the population segment to the taxon to which it belongs; and the conservation status of the population segment in relation to the Act's standards for listing. If the population segment qualifies as a DPS, the conservation status of that DPS is then evaluated to determine whether it is endangered or threatened.
A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
If a population is found to be discrete, then it is evaluated for significance under the DPS policy on the basis of its importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following: (1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the population represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside of its historical range; or (4) evidence that the population differs markedly from other populations of the species in its genetic characteristics.
If a population segment is both discrete
Section 3(16) of the Act defines the term “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” We have always understood the phrase “interbreeds when mature” to mean that a DPS must consist of members of the same species or subspecies in the wild that would be biologically capable of interbreeding if given the opportunity, but all members need not actually interbreed with each other. A DPS is a subset of a species or subspecies, and cannot consist of members of a different species or subspecies. A DPS may include multiple populations of vertebrate organisms that may not necessarily interbreed with each other. For example, a DPS may consist of multiple populations of a fish species separated into different drainages. While these populations may not actually interbreed with each other, their members are biologically capable of interbreeding.
Distinctive, discrete, and significant populations of the woodland caribou have been identified, described, and assessed by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). COSEWIC is composed of qualified wildlife experts drawn from Federal, provincial, and territorial governments; wildlife management boards; Aboriginal groups; universities;
In August 2014, COSEWIC, in accordance with SARA, submitted its assessment to the Canadian Federal Environment Minister for consideration of changing the legal status of the southern mountain caribou in Canada under SARA to endangered (COSEWIC 2014, p. iv). The recommended change in the legal status under SARA is pending review and decision by the Federal Environment Minister.
Because we now consider the southern Selkirk Mountains population of woodland caribou part of the larger southern mountain caribou population, as recognized by COSEWIC (2011, entire), we recognize that our evaluation of the southern Selkirk Mountains population is more appropriately conducted at the scale of the larger southern mountain caribou population. Therefore, below we evaluate whether, under our DPS policy, the southern mountain caribou population segment (
We completed a 5-year review of the endangered southern Selkirk Mountains population of woodland caribou (
For this final amended listing and DPS analysis of the southern mountain population of woodland caribou to the subspecies woodland caribou, we reviewed and evaluated information contained in numerous publications and reports, including, but not limited to: Banfield 1961; Stevenson
In 2002 and 2011, COSEWIC completed status assessments of caribou subspecies and species populations in North America. The 2002 COSEWIC Report evaluated woodland caribou “nationally significant populations” (NSPs). The more recent COSEWIC (2011) Report described “Designatable Units” (DUs) as the appropriate “discrete and significant units” useful to conserve and manage caribou populations throughout Canada. Information used in COSEWIC's 2011 report is useful to our DPS analysis. Canada's DUs are identified based on the criteria that there are “discrete and evolutionarily significant units of a taxonomic species, where `significant' means that the unit is important to the evolutionary legacy of the species as a whole and if lost, would likely not be replaced through natural dispersion” (COSEWIC 2011, p. 14). They consider a population or group of populations to be “discrete” based on the following criteria: distinctiveness in genetic characteristics or inherited traits, habitat discontinuity, or ecological isolation (COSEWIC 2011, p. 15).
It should be noted that COSEWIC's DU designation does not necessarily consider the conservation status or threats to the persistence of caribou DUs. Consistent with its 2009 guidelines, the COSEWIC used five lines of evidence to determine caribou DUs; these include: (1) Phylogenetics; (2) genetic diversity and structure; (3) morphology; (4) movements, behavior, and life-history strategies; and (5) distribution (COSEWIC 2011, p. 15). As a general rule, a DU was designated when several lines of evidence provided support for discreteness and significance (COSEWIC 2011, pp. 15-16). Twelve caribou DUs were classified by COSEWIC in 2011, including the southern mountain caribou population (DU9), which includes the southern Selkirk Mountains population of woodland caribou (COSEWIC 2011, p. 21). The information used to describe the southern mountain DU is reviewed and evaluated in our DPS analysis, as it includes numerous local woodland caribou populations that all possess similar and unique foraging, migration, and habitat use behaviors, and that are geographically separated from other caribou DUs.
As outlined in our 1996 DPS policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
The southern Selkirk Mountains population of woodland caribou is 1 of 17 woodland caribou subpopulations (15 extant, 2 extirpated) (COSEWIC 2014, p. xix) that share distinct foraging, migration, and habitat use behaviors. These subpopulations are all located in steep, mountainous terrain in central and southeastern British Columbia, Canada, and in extreme northeastern Washington and northern Idaho, United States. Little to no dispersal has been detected between these subpopulations and other caribou populations/subpopulations outside this geographic area (Wittmer
Telemetry research by Wittmer
The southern mountain caribou population is markedly separate from other populations of woodland caribou as a result of physical (geographic) factors. The distribution of this population is primarily located within the interior wet-belt of southern British Columbia, occurring west of the continental divide and generally south of Reynolds Creek (which is about 90 miles (mi) (150 kilometers (km)) north of Prince George, British Columbia). Its geographic range is such that it does not reproduce with other subpopulations of woodland caribou.
In addition to being physically (geographically) discrete, individuals within the southern mountain caribou population are behaviorally distinguished from woodland caribou in other populations (including the neighboring Northern Mountain and Central Mountain populations). Southern mountain caribou uniquely use steep, high-elevation, mountainous habitats with deep snowfall (about 5 to 16 ft (2 to 5 m)) (COSEWIC 2011, p. 50), and, as described below, are the only woodland caribou that depend on arboreal lichens for forage. This habitat use contrasts with the behavior of other woodland caribou, which occupy relatively drier habitats that receive less snowfall. With less snowfall in these areas, these woodland caribou primarily forage on terrestrial lichens, accessing them by “cratering” or digging through the snow with their hooves (Thomas
Extreme, deep snow conditions have led to a foraging strategy by the southern mountain caribou that is unique among woodland caribou. They rely exclusively on arboreal (tree) lichens for 3 or more months of the year (Servheen and Lyon 1989, p. 235; Edmonds 1991, p. 91; Stevenson
Another unique behavior of caribou within the southern mountain caribou population is their altitudinal migrations. They may undertake as many as four of these migrations per year (COSEWIC 2011, p. 50). After wintering at high elevations as described above, at the onset of spring, these caribou move to lower elevations where snow has melted to forage on new green vegetation (Paquet 1997, p. 16; Mountain Caribou Technical Advisory Committee (MCTAC) 2002, p. 11). Pregnant females will move to these spring habitats for forage. During the calving season, sometime from June into July, the need to avoid predators influences habitat selection. Areas selected for calving are typically high-elevation, alpine and non-forested areas in close proximity to old-growth forest ridge tops, as well as high-elevation basins. These high-elevation sites can be food limited, but are more likely to be free of predators (USFWS 1994a, p. 8; MCTAC 2002, p. 11; Cichowski
During summer months, southern mountain caribou move back to upper-elevation spruce/alpine fir forests (Paquet 1997, p. 16). Summer diets include selective foraging of grasses, flowering plants, horsetails, willow and dwarf birch leaves and tips, sedges, lichens (Paquet 1997, pp. 13, 16), and huckleberry leaves (U.S. Forest Service (USFS) 2004, p. 18). The fall and early winter diet consists largely of dried grasses, sedges, willow and dwarf birch tips, and arboreal lichens.
The southern mountain caribou are behaviorally adapted to the steep, high-elevation, mountainous habitat with deep snowpack. They feed almost exclusively on arboreal lichens for 3 or more months out of the year. They are
Data from Serrouya
This cluster overlap of DU boundaries is not surprising, as genetic structure is reflective of long-term historical population dynamics and does not necessarily depict current gene flow. Indeed, it does appear that recent impediments to gene flow may be genetically isolating woodland caribou in the southwest portion of their range (Wittmer
A certain level of genetic differentiation does exist between the southern mountain caribou population and neighboring woodland caribou. However, we do not presently consider there to be sufficient evidence to determine that the southern mountain caribou are genetically isolated from other populations of caribou, particularly the Central Mountain population. Therefore, at this time, we do not find that this population meets the genetic “discreteness” standard in our DPS policy.
In summary, we determine that the best available information indicates that the southern mountain caribou, comprised of 17 woodland caribou subpopulations (15 extant and 2 extirpated) that occur in southern British Columbia, northeastern Washington, and northern Idaho, is markedly separated from all other populations of woodland caribou. The southern mountain caribou population is physically (geographically), behaviorally, and reproductively isolated from other woodland caribou. Therefore, we consider the southern mountain caribou population to be discrete per our DPS policy.
Under our DPS policy, once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. Significance is not determined by a quantitative analysis, but is instead a qualitative finding. It will vary from species to species and cannot be reduced to a simple formula or flat percentage. Our DPS policy provides several potential considerations that may demonstrate the significance of a population segment to the species to which it belongs. These considerations include, but are not limited to: (1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the discrete population segment differs markedly from other population segments in its genetic characteristics; (3) evidence that the population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside its historical range; and (4) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon. The following discussion addresses considerations regarding the significance of the southern mountain caribou population to the subspecies woodland caribou (
As previously discussed, woodland caribou within the southern mountain caribou population are distinguished from woodland caribou in other areas. Southern mountain caribou live in, and are behaviorally adapted to, a unique ecological setting characterized by high-elevation, high-precipitation, and steep old-growth conifer forests that support abundant arboreal lichens (COSEWIC 2011, p. 50). In addition, all woodland caribou in the southern mountain caribou population exhibit a distinct behavior. Specifically, they spend the winter months in high-elevation, steep, mountainous habitats where individuals stand on the deep, hard-crusted snowpack and feed exclusively on arboreal lichens on standing or fallen old-growth conifer trees (Cichowski
In addition to persisting in a specific environment characterized by steep, high-elevation, old-growth forests and being reliant on arboreal lichens as primary winter forage, caribou of the southern mountain population make relatively short-distance altitudinal migrations up to four times per year. These caribou occupy valley bottoms and lower slopes in the early winter, and ridge tops and upper slopes in later winter after the snowpack deepens and hardens. In the spring, they move to lower elevations again to access green vegetation. Females make solitary movements back to high elevations to calve. This habitat and behavior are unique to the southern mountain caribou population. All other populations within the woodland caribou subspecies occupy winter habitat characterized by gentler topography, lower elevation, and less winter snowpack (COSEWIC 2011, pp. 43, 46) where their primary winter forage, terrestrial (ground) lichens, is most accessible (Thomas
We conclude that the southern mountain caribou meets the definition of significant in accordance with our DPS policy, as this population currently persists in an ecological setting unusual or unique for the subspecies of woodland caribou.
Research by Serrouya
As previously discussed, the best available information indicates that recent impediments to gene flow such as habitat fragmentation and widespread caribou population declines may be genetically isolating woodland caribou in the southwestern portion of their range (Wittmer
Despite some level of genetic differentiation between the southern mountain caribou population and neighboring woodland caribou, and a predicted continuation of genetic differentiation between subpopulations within southern mountain caribou, we do not presently consider southern mountain caribou “genetically unique.” Therefore, at this time we do not find this population meets the genetic “significance” standard in our DPS policy.
All caribou in the world are one species (
Historically, woodland caribou were widely distributed throughout portions of the northern tier of the coterminous United States from Washington to Maine, as well as throughout most of southern Canada (COSEWIC 2002, p. 19). However, as a result of habitat loss and fragmentation, overhunting, and the effects of predation, the population of woodland caribou within the British Columbia portion of their range has declined dramatically with an estimated 40 percent range reduction (COSEWIC 2002, p. 20). Additionally, Hatter (pers. comm. as cited in Spalding 2000, p. 40) estimated that the range of southern mountain caribou has declined by approximately 60 percent, when considering both the Canadian and U.S. range of the population. However, because there are no reliable historical estimates of the number of southern mountain caribou and their distribution (Spalding 2000, p. 34), it is difficult to precisely estimate their historical range for a comparison to their current range. Nevertheless, according to COSEWIC (2014, p. 14), mountain caribou were much more widely distributed than they are today, and thus the range of this population is decreasing. Further evidence of this decline is supported by population surveys. For example, Hatter
Loss of the southern mountain caribou population would result in the loss of the southern-most extent of the range of woodland caribou by about 2.5 degrees of latitude. The Service has not established a threshold of degrees latitude loss or percent range reduction for determining significance to a particular taxon. The importance of specific degrees latitude loss and/or percent range reduction, and the analysis of what such loss or reduction ultimately means to conservation of individual species/subspecies necessarily will be specific to the biology of the species/subspecies in question. However, the extirpation of peripheral populations, such as the southern mountain caribou population, is concerning because of the potential conservation value that peripheral populations can provide to a species or subspecies. Specifically, peripheral populations can possess slight genetic or phenotypic divergences from core populations (Lesica and Allendorf 1995, p. 756; Fraser 2000, p. 50). The genotypic and phenotypic characteristics peripheral populations may provide to the core population of the species may be central to the species' survival in the face of environmental change (Lesica and Allendorf 1995, p. 756; Bunnell
Additionally, loss of the southern mountain caribou population would result in the loss of the only remaining population of the woodland caribou in the coterminous United States. An additional consequence of the loss of the southern mountain caribou population would be the elimination of the only North American caribou population with the distinct behavior of feeding exclusively on arboreal lichens for 3 or more months of the year. This feeding behavior is related to their spending winter months in high-elevation, steep, mountainous habitats with deep snowpack.
Finally, extirpation of this population segment would result in the loss of a peripheral population segment of woodland caribou that live in, and are behaviorally adapted to, a unique ecological setting characterized by high-elevation, high-precipitation (including deep snowpack), and steep old-growth conifer forests that support abundant arboreal lichens.
We conclude that the southern mountain caribou persists in an ecological setting unusual or unique for the subspecies of woodland caribou, and that loss of the southern mountain caribou would result in a significant gap in the range of the woodland caribou subspecies. Therefore, the discrete southern mountain caribou population of woodland caribou that occur in southern British Columbia and in northeastern Washington and northern Idaho meets significance criteria under our DPS policy.
In conclusion, the Service finds that the southern mountain caribou population meets both the discreteness and significance elements of our DPS policy. It qualifies as discrete because of its marked physical (geographic) and behavioral separation from other populations of the woodland caribou subspecies. It qualifies as significant because of its existence in a unique ecological setting, and because the loss of this population would leave a significant gap in the range of the woodland caribou subspecies. For consistency, we will refer to the southern mountain DU, described by COSEWIC, as the southern mountain caribou DPS. See Figure 1 for a map of the known distribution of subpopulations within the southern mountain caribou DPS.
As described previously, because there are no reliable historical estimates of the number of southern mountain caribou and their distribution (Spalding 2000, p. 34), it is difficult to precisely estimate their historical range for a comparison to their current range. Nevertheless, according to COSEWIC (2014, p. 14), mountain caribou were much more widely distributed than they are today, and thus the range of this population is decreasing. Further evidence of this decline is supported by population surveys. For example, surveys of the southern mountain caribou population in 1995 estimated there were 2,554 individuals in the population (Hatter
Currently the southern mountain caribou DPS is composed of 17 subpopulations (15 extant, 2 extirpated) (Figure 1, above). However, Canada has, over time, grouped its caribou populations in accordance with various assessments (COSEWIC 2002, entire; COSEWIC 2011, entire), which has resulted in shifting boundaries, and moving one or more subpopulations between differing geographic groupings of populations. In addition to altering boundaries between populations, some subpopulation boundaries within the populations have changed as well (
All 15 extant subpopulations consist of fewer than 400 individuals each, 13 of which have fewer than 250 individuals, and 9 of which have fewer than 50 individuals (COSEWIC 2014, p. xviii). Fourteen of the 15 extant subpopulations within this DPS have declined since the last assessment by COSEWIC in 2002 (COSEWIC 2014, p. vii). Based on COSEWIC (2014, p. vii), which is new information received after we published our proposed amended listing rule (79 FR 26504; May 8, 2014), the population has declined by at least 45 percent over the last 27 years (3 generations), 40 percent over the last 18 years (2 generations), and 27 percent since the last assessment by COSEWIC in 2002 (roughly 1.4 generations) (COSEWIC 2014, p. vii). These subpopulations are continuing to suffer declines in numbers and range and have become increasingly isolated. Only one subpopulation has increased in numbers (likely due to aggressive wolf control and management) but still consists of fewer than 100 individuals; the most recent estimate was 78 individuals (COSEWIC 2014, p. 43). Given the data cited above, the rate of population decline is accelerating. The accelerated rate of population decline is supported by Wittmer
Because subpopulation names and boundaries have changed over time, it is difficult to precisely compare subpopulation estimates for some subpopulations within the southern mountain caribou DPS over time. However, according to Wittmer
Additionally, our May 8, 2014, proposed rule (79 FR 26504) stated that the Wells Gray South subpopulation was considered stable at 325 to 350 caribou from 1995 to 2002 (see 79 FR 26514). These numbers were obtained from Hatter
Surveys of the subpopulations in the southern mountain caribou DPS estimated that, in 1995, the entire population was approximately 2,554 individuals (Hatter
Population models indicate declines will continue into the future for the entire southern mountain caribou DPS and for many subpopulations. Hatter
According to Hatter
Wittmer
Along with these documented and predicted population declines, subpopulations of woodland caribou within the DPS are becoming increasingly fragmented and isolated (Wittmer 2004, p. 28; van Oort
Fragmentation and isolation are likely accelerating the extinction process and reducing the probability of demographic rescue from natural immigration or emigration because mountain caribou appear to lack the inherent behavior to disperse long distances (Van Oort
Rescue effect from natural dispersal is unlikely for the southern mountain DU. The nearest subpopulation in the United States is the South Selkirk subpopulation, which is shared between [British Columbia], Idaho, and Washington, and currently consists of only 28 mature individuals. Even within the southern mountain DU, subpopulations are effectively isolated from one another with almost no evidence of movement between them except at the northern extent of the DU (van Oort
Finally, COSEWIC recommended that the southern mountain DU be listed as endangered under SARA (COSEWIC 2014, pp. iv, xix). Endangered is defined by SARA as a wildlife species that is facing imminent extirpation or extinction. COSEWIC cited similar reasons as the threats we identified in this final rule including, but not limited to: Small, declining, and isolated subpopulations; recent extirpation of two subpopulations; recent PVA modeling predicting further declines and extirpation of subpopulations; and continuing and escalating threats (COSEWIC 2014, pp. iv, vii). The International Union for the Conservation of Nature-Conservation Measures Partnership (IUCN-CMP) threat assessment for the southern mountain DU concluded that the threat impact is the maximum (Very High) based on the unified threats classification system (Master
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we determine whether a species is an endangered species or threatened species because of any one or a combination of the following: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E)
Threats to caribou habitat within the southern mountain DPS include forest harvest, human development, recreation, and effects due to climate change (such as an increase in fires and a significant decrease in alpine habitats, which is loosely correlated with the distribution of the arboreal lichens on which these caribou depend). In addition to causing direct impacts, these threats often catalyze indirect impacts to caribou, including, but not limited to, predation, increased physiological stress, and displacement from important habitats. Both direct and indirect impacts to caribou from habitat destruction, modification, and curtailment are described below.
Historically, the caribou subpopulations that make up the southern mountain caribou DPS were distributed throughout the western Rocky Mountains of British Columbia, northern Idaho, and northeastern Washington (Apps and McLellan 2006, p. 84). As previously discussed, caribou within the southern mountain caribou DPS are strongly associated with high-elevation, high-precipitation, old-growth forested landscapes (Stevenson
It is estimated that about 98 percent of the caribou in the southern mountain caribou DPS rely on arboreal lichens as their primary winter food. They have adapted to the high-elevation, deep-snow habitat that occurs within this area of British Columbia, northern Idaho, and northeastern Washington (Apps and McLellan 2006, p. 84). The present distribution of woodland caribou in Canada is much reduced from historical accounts, with reports indicating that the extent of occurrence in British Columbia and Ontario populations has decreased by up to 40 percent in the last few centuries (COSEWIC 2002, pp. viii, 30). According to Spalding (2000, p. 40) the entire range of southern mountain caribou has decreased by 60 percent when including both the United States and Canadian portion of the population's historical range. The greatest reduction has occurred in subpopulations comprising the southern mountain caribou DPS (COSEWIC 2002, p. 30; COSEWIC 2011, p. 49). Hunting was historically considered the main cause of range contraction in the central and southern portions of British Columbia. However, predation, habitat fragmentation from forestry operations, and human development are now considered the main concerns (COSEWIC 2002, p. 30).
Forestry has been the dominant land use within the range of the southern mountain caribou DPS in British Columbia throughout the 20th century. The majority of timber harvesting has occurred since the late 1960s (Stevenson
Historically, within the U.S. portion of the southern mountain caribou DPS, habitat impacts have been primarily due to logging and fire (Evans 1960, p. 109). In the early 19th century, intensive logging occurred from approximately 1907 through 1922, when the foothills and lowlands were logged upwards in elevation to the present U.S. national forest boundaries (Evans 1960, p. 110). Partly because of this logging, farmlands replaced moister valleys that once resembled the rain forests of the Pacific coast (Evans 1960, p. 111). From the 1920s through 1960, logging continued into caribou habitat on the Kanisku National Forest in Idaho (now the Idaho Panhandle National Forest) (Evans 1960, pp. 118-120). In addition, insect and disease outbreaks affected large areas of white pine (
Harvesting of forests has both direct and indirect effects on caribou habitat within the southern mountain caribou DPS. A direct effect of forest harvest is loss of large expanses of contiguous old-growth forest habitats. Caribou in the southern mountain caribou DPS rely upon these habitats as an important means of limiting the effect of predation. Their strategy is to spread over large areas at high elevation that other prey species avoid (Seip and Cichowski 1996, p. 79; MCTAC 2002, pp. 20-21). These old-growth forests have evolved with few and small-scale natural disturbances such as wildfires, insects, or diseases. When these disturbances did occur, they created only small and natural gaps in the forest canopy that allowed trees to regenerate and grow (Seip 1998, pp. 204-205). Forest harvesting through large-scale clear-cutting creates additional and larger openings in old-growth forest habitat. These openings allow for additional growth of early seral habitat.
Research of woodland caribou has shown that caribou alter their movement patterns to avoid areas of disturbance where forest harvest has occurred (Smith
Roads created to support forest harvest activities have also fragmented habitat. Roads create linear features that provide easy travel corridors for predators into and through difficult habitats where caribou seek refuge from predators (MCST 2005, p. 5; Wittmer
The harvest of late-successional (old-growth) forests directly affects availability of arboreal lichens, the primary winter food item for caribou within the southern mountain caribou DPS. Caribou within this area rely on arboreal lichens for winter forage for 3 or more months of the year (Apps
Forest fires can have the same effect on mountain caribou habitat in the southern mountain caribou DPS as forest harvesting. Fires cause direct loss of important old-growth habitat and increase openings that allow for the growth of early seral habitat, which is conducive to use by other ungulates, such as deer and moose, but not by mountain caribou, which require old growth, mature forests. Historically, natural fires occurred at very low frequency and extent throughout the range of the southern mountain caribou DPS. This was due to the very wet conditions of the interior wet-belt (Stevenson
Engelmann spruce beetles (
More recently, mountain pine beetle (
Beetle outbreaks have impacted caribou within the southern mountain caribou DPS by directly removing habitat and associated arboreal lichens from the landscape (Evans 1960, p. 132). In addition to eliminating caribou habitat, these beetle outbreaks have brought increased logging operations to high-elevation forests. This logging was done in an attempt to salvage the valuable wood resource in these forest stands. However, this activity also brought human presence and an increase in the potential for poaching and disturbance (Evans 1960, p. 131; USFWS 1985, p. 21). Interestingly, because of the spruce bark beetle outbreaks and a sudden increase in spruce harvest, the logging industry, in an attempt to sell the wood that was being salvaged from the mid-century spruce bark beetle outbreaks, aggressively promoted and developed a market for spruce wood. The associated demand they created for spruce wood continued after the salvaged wood was exhausted, probably leading to continued logging of spruce forests at high elevations. This continued logging of spruce continued the elimination of habitat and prolonged disturbance to caribou beyond the direct impacts from the beetle infestations (Evans 1960, p. 131).
Management of beetle outbreaks for caribou has involved attempting to preserve alternate habitat until affected forests have time to regenerate and once again become suitable for caribou (Hummel and Ray 2008, p. 252). It is not clear to what extent insect infestations will continue into the future; however, climate change models project more frequent mountain pine beetle outbreaks at higher elevations in the future (Littell
Human development fragments habitat within and between local caribou populations in the southern
Despite signs posted with caribou depictions warning motorists, caribou have also been killed by vehicles on highways within the range of the southern mountain caribou DPS (Johnson 1985, entire; Wittmer
Highways and their associated vehicle traffic can also fragment caribou habitat and act as impediments to animal movement (Forman and Alexander 1998, p. 215; Dyer
As discussed above, industrial development can directly affect caribou through habitat alteration that fragments caribou habitat and displaces caribou to areas of lower quality or degraded habitat, and indirectly through increased predation rates resulting from changes in predator-prey dynamics due to habitat alterations. In accordance with SARA, Canada has developed a recovery strategy for southern mountain caribou that assessed threats related to industrial developments (Environment Canada 2014, entire). In the recovery strategy, Canada identified the following threats: Oil and gas drilling related to shale gas development in the Kootenays present a moderate threat (defined as possible in the short term [less than 10 years or 3 generations]); mining and quarrying development primarily in the Barkerville, Kootenay, and Kamloops areas present a high threat (defined as continuing); renewable energy related to hydropower projects in the Columbia South and North ranges, and wind farms, present moderate threats; roads and railroad (
Mining activities, although they may not be focused in valleys, may also fragment caribou habitat and limit their dispersal and movement. Additionally, these activities may play a role in the alteration of the distribution and abundance of other ungulate species. These activities may also provide travel corridors for predators (MCST 2005, p. 5), as well as increase human accessibility to habitat that was previously difficult to access. The current extent of direct and indirect impacts to caribou from existing mining activities within the southern mountain caribou DPS is not well known.
Human-related activities are known to impact caribou. Specifically, as described below, wintertime recreational activities such as snowmobiling, heli- or cat-skiing, and back-country skiing are likely to impact short-term behavior, long-term habitat use (MCST 2005, p. 5), and physiology (Freeman 2008, p. 44) of caribou. It is uncertain if these activities are affecting all populations within the southern mountain caribou DPS. Literature suggests that trail compaction resulting from high levels of wintertime recreational activities such as snowmobiling and snowshoeing may act as travel corridors for predators such as wolves. These trails allow easier access into winter caribou habitat that was previously more difficult for predators to navigate (Simpson and Terry 2000, p. 2; Cichowski
Snowmobile activity represents the greatest threat to caribou within the southern mountain caribou DPS relative to other winter recreation activities due to the overlap between preferred snowmobile habitat and preferred caribou habitat (Simpson and Terry 2000, p. 1). Deep snow, open forest, and scenic vistas are characteristics found in caribou winter habitat, and are also preferred by snowmobilers (Seip
Within the southern mountain caribou DPS, caribou have been shown to alter their behavior by fleeing from (Simpson 1987, pp. 8-10), and dispersing from, high-quality winter habitat because of snowmobile activity (Seip
Given our understanding of the impacts to caribou from human disturbance (Simpson 1987, pp. 8-10), and information on other ungulate species relative to helicopter disturbance (Cote 1996, p. 683; Webster 1997, p. 7; Frid 2003, p. 393), the presence of humans and machines (helicopters or snow-cats) in caribou habitat from heli- or cat-skiing may be a potential source of disturbance to caribou in certain portions of the southern mountain caribou DPS. This disturbance is likely negatively impacting caribou by altering their behavior and habitat use patterns. Elevated GC levels in caribou has been documented within heli-ski areas. This suggests that heli-skiing activity in certain areas of the southern mountain caribou DPS is causing some level of physiological stress to caribou (Freeman 2008, p. 44). Additionally, since heli- and cat-skiing often require tree cutting for run and/or road maintenance, habitat alteration may be another threat posed from this activity (Hamilton and Pasztor 2009, entire). Further study may be necessary to understand the degree of impact to caribou from heli- and cat-skiing.
Disturbance impacts to caribou from backcountry skiing also are relatively unstudied. Our current knowledge of caribou responses to human disturbance suggests that backcountry skiing may be a potential source of disturbance to caribou, negatively impacting them by altering their behavior. These impacts are likely similar to behavioral alterations from heli- or cat-skiing (Simpson and Terry 2000, p. 3; USFS 2004, p. 24). Duchesne
Each of these activities—snowmobiling, heli- or cat-skiing, and backcountry skiing—has the potential to disturb caribou. The extent to which caribou are impacted is likely correlated with the intensity of activity (Simpson 1987, p. 9; Duchesne
Our analyses under the Act include consideration of the effects of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC), an international body established in 1988 to assess the science related to climate change and provide policymakers with regular assessments of the scientific basis of climate change, its impacts and future risks, and options for adaptation and mitigation. “Climate” refers to the mean and variability of different types of weather conditions over time. Thirty years is a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78; IPCC 2014, pp. 119-120). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (
Between the 1600s and the mid-1800s, Europe and North America were in a period called the “Little Ice Age.” During this period, Europe and North America experienced relatively colder temperatures (IPCC 2001, p. 135). The cooling during this time is considered to be modest, with average temperature decreases of less than 1.8 degrees Fahrenheit (°F) (1 degree Celsius (°C)) relative to 20th century levels. Cooling may have been more pronounced in certain regions and during certain periods, such as in North America during the 1800s (IPCC 2001, p. 135).
On a global scale, climate change models under a range of emission scenarios consistently project future increases in temperature and increased precipitation at higher latitudes (Melillo et al. 2014, p. 33). At regional scales there is more variability, particularly when projecting future changes in precipitation. Average temperature has increased in the Northwest 1.3 °F between 1895 and 2011 (Dalton et al. 2013, p. xxi; Melillo et al. 2014, p. 489), while precipitation has fluctuated, but without a significant trend, during the same time period (Dalton et al. 2013, p. xxi; Melillo et al. 2014, p. 489). Temperature and precipitation extremes are projected to increase in the Northwest (Dalton et al. 2013, p. xxiii). For every season, some models project decreases and some project increases in future precipitation, but in a scenario of continued growth in heat-trapping gas emissions, summer precipitation is
Review of climate change modeling presented in Utzig (2005, p. 5) demonstrated projected shifts in habitats within the present range of the southern mountain caribou DPS in Canada. Projections for 2055 indicate a significant decrease in alpine habitats, which is loosely correlated with the distribution of the arboreal lichens on which these caribou depend. The projected biogeoclimatic zone distributions indicate a significant increase in the distribution of western red cedar in the mid-term with a shift upward in elevation and northward over the longer term. Projected subalpine fir distribution is similar, with a predicted shift upward in elevation and long-term decreasing presence in the south and on the drier plateau portions of the present range of the southern mountain caribou DPS. More recent analysis by Utzig (2012, pp. 11-15) suggests that while western red cedar will maintain a significant presence throughout the southern portion of the DPS, spruce fir forests and alpine parkland will approach near elimination by the 2080s. Similarly, Rogers
The movements of subpopulations within the southern mountain caribou DPS are closely tied to changes in snow depth and consolidation of the snow pack, allowing access to arboreal lichens in winter (Kinley
Projections for 2085 indicate an increase in drier vegetation types at lower elevations. This could potentially cause an increase in other ungulate species such as deer, moose, and elk within the range of the southern mountain caribou DPS (Utzig 2005, p. 4). This may result in increased predator numbers in response to increased prey availability, and increased predation on caribou (Utzig 2005, p. 4). For example, in northern Alberta, changes in summer and winter climate are driving range expansion of white-tailed deer, with further changes expected with continuing climate change (Dawe 2011, p. 153). This increase in white-tailed deer is expected to alter predator-prey dynamics, leading to greater predation on woodland caribou by wolves (Latham
Virtually all future climate scenarios for the Pacific Northwest project increases in wildfire in western North America, especially east of the Cascades. This is due to higher summer temperatures, earlier spring snowmelt, and lower summer flows, which can lead to drought stress in trees (Littell
The information currently available regarding the effects of global climate change and increasing temperatures does not allow precise estimates of the location and magnitude of the effects. However, we do expect changes in climate such as increasing temperatures will result in the following: A shorter snow season with shallower snowpacks, increased forest disturbance, and vegetation growing in far from optimal climatic conditions (Columbia Mountains Institute of Applied Ecology 2006, p. 49). Utzig (2005, entire) provided the most applicable summary of the potential effects of climate change to the southern mountain caribou DPS. In his paper, he noted that there are general indications that the present range of mountain caribou may be reduced in some areas and increased in others (p. 10), as the ecosystem upon which they rely undergoes drastic future changes due to changes in the form and timing of precipitation events (snow versus rain), and vegetative responses to climatic conditions (
Given the above information, we anticipate that changes in climate could directly impact the southern mountain caribou DPS by: (1) Reducing the abundance, distribution, and quality of caribou habitat; (2) limiting the ability of caribou to move between seasonal habitats; and (3) limiting their ability to avoid predation. Impacts from climate change may also affect caribou and their habitat by affecting external factors such as increased disease and insect outbreaks, increased fire occurrence, and changes in snow depth. The impacts from these effects could lead to increased habitat fragmentation and changes in forest composition, changes in forage availability and abundance, and changes in predation, which are each important to caribou survival. Because of the close ties between caribou movement and seasonal snow conditions, seasonal shifts in snow conditions will likely significantly impact the southern mountain caribou DPS (Utzig 2005, pp. 4, 8). A trend towards hotter and drier summers, increasing fire events, and unpredictable snow conditions has the potential to reduce both recruitment and survival of the southern mountain caribou DPS of mountain caribou (Festa-Bianchet
Relative to human access within caribou habitat, motorized winter recreation, specifically snowmobiling, represents one threat to caribou within the southern Selkirk Mountains woodland caribou recovery area. U.S. Forest Service 1987 land resource management plans (LRMPs) included some standards calling for motorized use restrictions when needed to protect caribou. The CNF's LRMP in Washington has been revised to incorporate special management objectives and standards to address potential threats to woodland caribou on the forest. The CNF also manages winter recreation in areas of potential conflict between snowmobile use and caribou, specifically in its Newport/Sullivan Lake Ranger District (77 FR 71042, November 28, 2012, see p. 71071). The Idaho Panhandle National Forests (IPNF), beginning in 1993, implemented site-specific closures to protect caribou on IPNF. However, more comprehensive standards addressing how, when, and where to impose such restrictions across IPNF were limited (USFS 1987, entire). In December 2005, a U.S. District Court granted a preliminary injunction prohibiting snowmobile trail grooming within the caribou recovery area on the IPNF during the winter of 2005 to 2006. The injunction was granted because the IPNF had not developed a winter recreation strategy addressing the effects of snowmobiling on caribou. In November 2006, the court granted a modified injunction restricting snowmobiling and snowmobile trail grooming on portions of the IPNF within the recovery area of the southern Selkirk Mountains caribou. On February 14, 2007, the court ordered a modification of the current injunction to add a protected caribou travel corridor, connecting habitat in the U.S. portion of the southern Selkirk Mountains with habitat in British Columbia. This injunction is currently in effect and restricts snowmobiling on 239,588 ac (96,957 ha), involving 71 percent of the existing woodland caribou recovery area. In its revised LRMP (USFS 2015, entire), the IPNF considered the court-ordered snowmobile closure to be the standard until a winter travel plan is approved. The Service will work closely with the IPNF on the future development of their winter recreation strategy, which will be subject to section 7 consultation under the Act.
Within the range of the southern Selkirk Mountains population of woodland caribou is the 43,348-ac (17,542-ha) Salmo-Priest Wilderness area (U.S. Department of Agriculture (USDA) 2013,
A recovery plan for the endangered southern Selkirk Mountains population of woodland caribou was finalized in 1994 (1994 recovery plan), outlining interim objectives necessary to support a self-sustaining caribou population in the Selkirk Mountains (USFWS 1994a, entire). Among these objectives was a goal to secure and enhance at least 443,000 ac (179,000 ha) of caribou habitat in the Selkirk Mountains. However, the recovery criteria in this recovery plan were determined to be inadequate in the Service's 5-year review (USFWS 2008, p. 15). Additional
As stated above, one of the tools of the 2007 MCRIP for achieving recovery of mountain caribou is augmentation of small subpopulations with caribou translocated from other areas. Pursuant to the 2007 MCRIP, an augmentation plan for the Purcells South Mountain Caribou Population was finalized in 2010, and included a goal of achieving a population target of 100 caribou through augmenting 40 caribou into the Purcell South subpopulation over 2 years (Cichowski
All national parks in Canada are managed by Parks Canada, and are strictly protected areas where commercial resource extraction and sport hunting are not permitted (Parks Canada National Park System Plan (NPSP) 2009, p. 3). Parks Canada's objective for their national parks is, “To protect for all time representative natural areas of Canadian significance in a system of national parks, to encourage public understanding, appreciation, and enjoyment of this natural heritage so as to leave it unimpaired for future generations” (Parks Canada NPSP 2009, p. 2). The southern mountain caribou DPS in British Columbia encompasses two Canadian national parks, Glacier and Mount Revelstoke. Both of these national parks comprise 333,345 ac (134,900 ha) and are within the range of several subpopulations of caribou in the southern mountain caribou DPS (Parks Canada NPSP 2009, pp. 18-19). Ninety-four percent of the land in British Columbia is considered Provincial Crown lands, of which 33,881,167 ac (13,711,222 ha) are designated as various park and protected areas managed by British Columbia (B.C.) Parks (B.C. Parks 2013a,
In February 2009, British Columbia's Ministry of Environment (BCMOE) protected 5,568,200 ac (2,253,355 ha) of currently available and eventually available high-suitability winter caribou habitat. This was accomplished through the issuance of 10 Government Actions Regulation (GAR) orders on Provincial Crown lands within the southern mountain caribou DPS (BCMOE 2009a,
In February 2009, the BCMOE closed approximately 2,471,050 ac (1,000,000 ha) of caribou habitat within the Canadian portion of the southern mountain caribou DPS to snowmobile use (MCRIPPB 2010, p. 10). However, compliance with closures in these areas is not well known, and is likely not 100 percent (MCRIPPB 2012, p. 9). Efforts and progress are being made to replace stolen or vandalized signs, to improve monitoring and enforcement of compliance, and to inform and educate the users about the closed areas. Specifically, several tickets have been issued in British Columbia for noncompliance, and informational pamphlets have been made and distributed (MCRIPPB 2010, p. 10; MCRIPPB 2012, p. 9).
Under SARA, Federal, provincial, and territorial government signatories agreed to establish complementary legislation and programs that provide effective protection of species at risk throughout Canada (Environment Canada 2014, p.
• Consideration of southern mountain caribou habitat requirements when planning and implementing forest harvesting and other industrial activities, including prohibition of forest harvesting and road building activities in 2.2 million ha (5.4 million ac) (
• Consideration of southern mountain caribou habitat when planning and implementing prescribed fires in national parks and on other lands, including conducting prescribed fires in areas away from caribou habitat to maintain a safe distance between caribou and predators;
• Closure to snowmobiling of 1 million ha (2.5 million ac) of high-elevation habitat within ranges of southern mountain caribou in the Southern Group in British Columbia;
• Development and implementation of operating procedures for helicopter and snowcat skiing in southern mountain caribou in the Southern Group in British Columbia;
• Development and implementation of operating guidelines for industrial development within southern mountain caribou ranges;
• Land-use planning to identify areas within southern mountain caribou ranges where southern mountain caribou conservation is prioritized;
• Reduced speed zones on highways in important caribou habitat;
• Predator and alternate prey management projects in some ranges where subpopulations of southern mountain caribou are declining; and
• Population augmentation through translocations and reduction of early calf mortality through maternal penning.
In addition, implementation of voluntary stewardship management agreements in British Columbia may contribute to conservation of the southern mountain caribou DPS. These agreements are between the BCMOE and snowmobiling groups, and promote the minimization of disturbance and displacement of caribou from snowmobile activities in their habitat. Through these agreements, snowmobile groups agree to abide by a code of conduct while riding in designated areas, volunteer to educate riders about impacts to caribou and preventative measures to avoid impacts, volunteer to monitor designated areas for compliance, and submit reports to the BCMOE detailing caribou sightings and snowmobile use of an area. To date, 13 of these agreements have been signed between the BCMOE and snowmobile organizations (MCRIPPB 2010, p. 10). Finally, a maternal penning trial is being implemented near Revelstoke, British Columbia, Canada, and a memorandum of understanding has been signed between Parks Canada and the Calgary Zoo to develop captive breeding capacity for mountain caribou (MCRIPPB 2014, p. 5).
Destruction, modification, or curtailment of caribou habitat has been and is today a significant threat to caribou throughout the southern mountain caribou DPS. Specific threats directly impacting caribou habitat within the southern mountain caribou DPS include forest harvest, forest fires, insect outbreaks, human development, recreation, and effects of climate change. Each of these threats, through varying mechanisms, directly removes and fragments existing habitat and/or impacts caribou behavior such that it alters the distribution of caribou within their natural habitat.
Forest harvest, forest fires, insect outbreaks, human development, and effects due to climate change may catalyze other indirect threats to caribou within the southern mountain caribou DPS. These impacts may be particularly prevalent in the southern extent of this DPS. Specifically, direct habitat loss and fragmentation further limits caribou dispersal and movements among subpopulations within the southern mountain caribou DPS by making it more difficult and more dangerous for caribou to disperse. Additionally, habitat loss and fragmentation have and will continue to alter the predator-prey ecology of the southern mountain caribou DPS by creating more suitable habitat and travel corridors for other ungulates and their predators. Finally, habitat loss and fragmentation increases the likelihood of disturbance of caribou in the southern mountain caribou DPS from human recreation or other activities by increasing the accessibility of these areas to humans. Projections of changes in climate indicate that the changes will exacerbate impacts by catalyzing forest composition changes; increasing forest insect outbreaks; and increasing the likelihood of wildfires through changes in phenology, precipitation (both timing and quantity), and temperature.
Another threat, human disturbance from wintertime recreation, particularly from snowmobile activity, increases physiological stress and energy expenditure, and alters habitat occupancy of caribou. This disturbance forces caribou to use inferior habitat with greater risk of depredation or avalanche. Human disturbance is likely to continue to increasingly impact caribou within the southern mountain caribou DPS because nature-based recreation and tourism are on the rise in rural British Columbia. Projected growth of these activities is estimated at approximately 15 percent per year (Mitchell and Hamilton 2007, p. 3). In addition, the establishment of new forest roads may be providing increased human access to caribou habitat, further amplifying the threat of human disturbance and caribou population declines within the southern mountain caribou DPS in the future. Impacts to caribou from human disturbance are
We have evaluated the best available scientific and commercial data on the present or threatened destruction, modification, or curtailment of the habitat or range of the southern mountain caribou DPS. Through this evaluation, we have determined that the activities identified under this factor pose significant threats to the continued existence of the southern mountain caribou DPS, especially when considered in concert with the other factors impacting the southern mountain caribou DPS.
Caribou have been an important game species since they have shared the landscape with humans. Native Americans have hunted caribou for thousands of years in British Columbia, although the numbers of animals taken were probably modest given the relatively limited hunting pressure and hunting implements at the time (Spalding 2000, p. 38). The introduction of firearms combined with a later increase in human populations in British Columbia led to an increase in caribou harvested by the late 1800s and into the 1900s (Spalding 2000, p. 38).
It is thought that an increase in hunting pressure, although it did not cause extinction, upset the already delicate balance between predators and caribou and catalyzed a general decline in caribou populations (Seip and Cichowski 1996, p. 73; Spalding 2000, p. 39). In support of this hypothesis, Spalding (2000, p. 39) cited old field reports that hunters, both Native American and non-Native American, were killing too many caribou. He also cited several regions of British Columbia where, after hunting closures were implemented, caribou numbers began to rebound, although this was not the case in all populations (Spalding 2000, p. 37). These hunting pressures and associated population declines subsided with the hunting season closures, and some regions of British Columbia even saw population increases and stabilization after the 1940s (Spalding 2000, pp. 37, 39).
Hunting of caribou is currently not allowed in any of the lower 48 United States. While hunting of mountain caribou is allowed within certain areas of British Columbia (British Columbia Hunting and Trapping Regulations/Synopsis 2014-2016), according to Chris Ritchie (2015, pers. comm.), there is no legal harvest of mountain caribou allowed within the range of the southern mountain caribou DU/DPS in Canada. Further, hunting is prohibited in all national parks and ecological reserves in British Columbia, but may be allowed in some specific British Columbia parks. Consequently, legal harvest has not been a major limiting factor to caribou within the southern mountain caribou DPS since the mid-1970s (Seip and Cichowski 1996, p. 73). Therefore, although it may have had a historical impact on caribou populations, hunting/harvesting of caribou is not presently impacting caribou within the southern mountain caribou DPS.
Although there are historical reports of the illegal harvest of caribou within the southern mountain caribou DPS (Scott and Servheen 1985, p. 15; Seip and Cichowski 1996, p. 76), we do not have data that suggest illegal killing is affecting caribou numbers in any of the subpopulations within the southern mountain caribou DPS.
Aside from State and Provincial regulations that limit hunting of caribou, we are unaware of other conservation efforts to reduce overutilization for commercial, recreational, scientific, or educational purposes; however, we do not have information suggesting that overutilization is an ongoing threat to caribou within the southern mountain caribou DPS.
Threats from overutilization such as hunting appear to be ameliorated, now and in the future, by responsible management. Historically, caribou within the southern mountain caribou DPS were hunted throughout their range. They were likely overharvested when human populations increased in British Columbia and with the advent of modern weapons. The hunting of caribou has been made illegal within the southern mountain caribou DPS, in both the United States and Canada. After hunting ceased, certain populations began to recover but others did not. Even though there have been known occurrences of humans illegally killing caribou within the southern mountain caribou DPS in the past, we do not have information indicating this is an ongoing threat. We have evaluated the best available scientific and commercial data on the overutilization for commercial, recreational, scientific, or educational purposes of the southern mountain caribou DPS and determined that activities identified under this factor do not pose threats to the continued existence of the southern mountain caribou DPS.
Caribou mortality due to disease and parasitism has been documented throughout their range and within the southern mountain caribou DPS (Spalding 2000, p. 40; Compton
Within the southern mountain caribou DPS, evidence of disease or parasitism is limited. We know that several caribou that were shot or found dead in a forest near Rooney, British Columbia, in 1918 were thought to have a type of pneumonia (Spalding 2000, p. 40). We also know that, of 34 caribou that died within 2 years of translocation to the southern Selkirk Mountains, only one was confirmed to have died of
As is the case with most wildlife, caribou are susceptible to disease and parasitism. These sources of mortality are likely causing some level of impact to individual caribou within the southern mountain caribou DPS. However, because no severe outbreaks have been documented and because relatively few caribou within the southern mountain caribou DPS have been known to succumb to disease or parasitism, these sources of mortality are unlikely to have significantly impacted caribou within the southern mountain caribou DPS, currently or historically.
Natural predators of caribou in the southern mountain caribou DPS include cougars (
As cited previously the decline of this population is accelerating (COSEWIC 2014, p. vii). Wittmer
Genetic drift can result from rapid changes in gene frequencies caused by environmental and demographic stochasticity independent of mutation and natural selection, and smaller populations are more susceptible to genetic drift. For example, when alleles
Elevated levels of predation on caribou in the southern mountain caribou DPS have likely been caused, in part, by an alteration of the natural predator-prey ecology within their range (Wittmer
Habitat alteration and fragmentation has resulted in increased numbers and distribution of other ungulate prey species (
The specific changes to predator/prey ecology are different across the southern mountain caribou DPS. In the northern portion of the DPS, wolf and moose populations have increased. In the southern portion of the DPS, cougar, elk, and deer populations have increased. Because alternate ungulate prey are driving predator abundance in caribou habitat (Wittmer
Alterations in the predator-prey ecology of the southern mountain caribou DPS may also have been catalyzed, in part, by successful game animal management in the southern mountain caribou DPS (Wittmer
Direct management of predator populations within the southern mountain caribou DPS to date has included investigations of the degree of overlap between wolves and caribou home ranges. This research will assist BCMOE with decisions about location and intensity of wolf management or removal (MCRIPPB 2010, p. 12). Currently, BCMOE has authorized removal of wolves from within the southern mountain caribou DPS through hunting and trapping. To date, this program has been implemented only on a limited basis. Initial results suggest this management effort has been successful at reducing wolf densities, but the response by mountain caribou will take several more years to determine (MCRIPPB 2010, p. 12). Finally, a wolf sterilization project is underway in a portion of the southern mountain caribou DPS. This project is a pilot project designed to determine the feasibility and effectiveness of wolf sterilization (MCRIPPB 2010, p. 12). Initial results of this work suggest that some subpopulations are showing a positive response to these sterilization efforts. However, this conclusion is based on a correlation between the two variables and cause-effect has not been demonstrated (Ritchie
Direct management of alternate ungulate prey populations within the southern mountain caribou DPS, to date, has been limited. The BCMOE has reported two pilot moose-reduction programs within the southern mountain caribou DPS to determine effectiveness of reducing wolf densities through the management of moose densities in caribou habitat (MCRIPPB 2010, p. 13). These pilot efforts have indicated that reducing moose densities may reduce wolf numbers (MCRIPPB 2011, p. 4).
The BCMOE established a Mountain Caribou Recovery Implementation Progress Board (Board) with the publication of the 2007 MCRIP. The Board was charged with oversight of the implementation of the MCRIP and monitoring its effectiveness. The Board's 2010 annual report declared that the conservation measures listed above have all been relatively limited in scope and have failed to meet the expectations of the Board (MCRIPPB 2010, p. 4). The Board's annual reports since 2010 have been slightly more favorable in their assessment of the BCMOE's efforts for predator and alternate ungulate prey management. However, it is still apparent that much research and progress still needs to be completed. For example, it is noteworthy that most of the conservation measures listed above target the wolf-moose predator-prey relationship that is the primary driver of predator-prey dynamics in the northern portion of the southern mountain caribou DPS. We were able to find only one record or report of conservation measures that had been implemented to address predation of caribou by cougars, which may be the most salient issue for the small and struggling subpopulations in the southern portion of the southern mountain caribou DPS (Wittmer
Efforts at reducing predation in the United States are more limited and not specifically targeted at reducing effects to caribou. In Idaho, caribou are found within game management unit (GMU) 1, which provides recreational hunting opportunities for black bear, mountain lion, and wolves, and also provides a limited trapping season for wolves (Idaho Department of Fish and Game (IDFG) 2012, entire). Within this GMU, between July 1, 2010, and June 30, 2011, 109 mountain lions (IDFG 2011a, p. 6) and 179 black bears (IDFG 2011b, p. 4) were harvested. More recently, from September 1, 2011, through March 31, 2012, 28 wolves were harvested (IDFG 2013,
Predation, particularly from wolves and cougars, is thought to be the most, or one of the most, significant contributors to caribou population declines within the southern mountain caribou DPS in recent decades. Increased predation of caribou within this DPS has likely been caused, in part, by an alteration of the natural predator-prey ecology of the area. This new predator-prey dynamic has been catalyzed by increases in populations of alternative ungulate prey species such as elk, deer, and moose within caribou habitat. Ecosystems that favor these alternate ungulate prey species also favor predators such as wolves and cougars. These changes have likely been catalyzed, in part, by human-caused habitat loss and fragmentation, which increases habitat favorable to alternative ungulate prey species, and consequently attracts increased numbers of predators. Although some conservation measures have been implemented to reduce impacts to subpopulations of caribou from predation, more efficient, intensive, and frequent action is still needed within the southern mountain caribou DPS. We have evaluated the best available scientific and commercial data on disease or predation of the southern mountain caribou DPS and have determined that predation poses a widespread and serious threat to the continued existence of the southern mountain caribou DPS.
Under this factor, we examine whether existing regulatory mechanisms are inadequate to ameliorate the threats to the species discussed under the other factors. Section 4(b)(1)(A) of the Act requires that the Service take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species. . . .” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, regulations, and other such mechanisms that may minimize any of the threats we describe in threat analyses under the other four factors or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations. An example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.
Many different regulatory mechanisms and government conservation actions have been implemented in both the United States and British Columbia in an attempt to alleviate threats to caribou within the southern mountain caribou DPS. Below, we list these existing regulatory mechanisms and consider whether they are inadequate to address the identified threats to the southern mountain caribou DPS.
We acknowledge that LRMPs can be amended or revised. However, LRMPS are typically in place for 15 years or longer, and the Service, other Federal and State agencies, and the public would have opportunities to comment on any proposed amendments or revisions to the IPNF and/or CNF LRMPs through the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
The CNF's LRMP in Washington has been revised to incorporate special management objectives and standards to address potential threats to woodland caribou on the CNF. The CNF also manages winter recreation in areas of potential conflict between snowmobile use and caribou, specifically in its Newport/Sullivan Lake Ranger District (77 FR 71042, November 28, 2012, see p. 71071). The IPNF, beginning in 1993, implemented site-specific closures to protect caribou on the IPNF. However, more comprehensive standards addressing how, when, and where to impose such restrictions across the IPNF were limited (USFS 1987, entire). In December 2005, a U.S. district court granted a preliminary injunction prohibiting snowmobile trail grooming within the caribou recovery area on the IPNF during the winter of 2005 to 2006. The injunction was granted because the IPNF had not developed a winter recreation strategy addressing the effects of snowmobiling on caribou. In November 2006, the court granted a modified injunction restricting snowmobiling and snowmobile trail grooming on portions of the IPNF within the southern Selkirk Mountains caribou recovery area. On February 14, 2007, the court ordered a modification of the current injunction to add a protected caribou travel corridor connecting habitat in the U.S. portion of the southern Selkirk Mountains with habitat in British Columbia. This injunction is currently in effect and restricts snowmobiling on 239,588 ac (96,957 ha), involving 71 percent of the existing woodland caribou recovery area. In its revised LRMP (USFS 2013, entire), the IPNF considered the court-ordered snowmobile closure to be the standard until a winter travel plan is approved. The Service will work closely with the IPNF on the future development of their winter recreation strategy. To date, the IPNF has not completed a winter recreation strategy. For additional information, under the Factor A analysis, above, see
The woodland caribou southern mountain population, which includes the southern mountain caribou DPS (which is equivalent to Canada's southern mountain DU), is protected as threatened under Canada's Species at Risk Act (SARA) (Statues of Canada (S.C.) chapter 29).
The woodland caribou southern mountain population was assigned the status S1 in 2003, by the Province of British Columbia, meaning it is considered critically imperiled there (BCMOE 2013,
The FRPA enables the BCMOE to regulate road building, logging, reforestation, and grazing through passage of Government Act Regulations (GARs) to protect ungulate winter range and wildlife habitat areas. As described previously through passage of GARs, BCMOE has protected over 5 million ac (over 2 million ha) of high-quality ungulate winter range from road building and logging, which equates to protecting greater than 95 percent of high-quality caribou habitat in British Columbia (Ritchie 2015, pers. comm.). The WA enables BCMOE to establish wildlife management areas and issue regulations pertaining to the management of such areas. In accordance with the WA, BCMOE has prohibited recreational snow machine use on almost 2.5 million ac (over 1 million ha) of mountain caribou habitat. Additionally, the WA contains provisions allowing BCMOE to develop and implement predator management plans. The British Columbia's Ministry of Forests, Lands and Natural Resource Operations prepared the Management Plan for the Gray Wolf in British Columbia as advice to the responsible jurisdiction and organizations that may be involved in managing gray wolves in British Columbia. Recommendations in the plan are used by provincial agencies to guide the development of new, or modification of existing, provincial policies and procedures. Consistent with that plan and in accordance with the WA, BMCOE has implemented projects to reduce wolf predation on mountain caribou.
The British Columbia's Ministry of Forests, Lands and Natural Resource Operations currently does not allow hunting of caribou within the area where the southern mountain population of caribou occurs. The woodland caribou southern mountain population and its habitat are also protected by the National Parks Act in numerous national parks in Canada (Canada 2013,
Substantial progress has been made for certain MCRIP goals, such as protecting habitat through government actions regulation (GAR) orders in British Columbia. However, other goals, such as reducing the effects from predation and habitat restoration, have seen less progress made. Additional work and time are still needed to implement all goals identified in the MCRIP to adequately reduce threats to the southern mountain population of caribou in Canada.
The Service sought but was unable to find any local regulatory mechanisms addressing caribou habitat management or protection within the United States or Canada.
Currently, we are unaware of any regulatory mechanisms addressing caribou habitat management or protection on private lands within the United States.
The vast majority of caribou habitat in the Selkirk Mountains of the United States is located on USFS land, specifically the CNF and IPNF. Both the CNF and IPNF have incorporated caribou habitat management standards into their LRMPs. Therefore, we expect both the CNF and IPNF to continue managing for caribou and their habitat into the future.
While the IDL also manages a substantial portion of caribou habitat within the southern Selkirk Mountains subpopulation, they are not required to manage their land for caribou. The IDL's land management plans, particularly timber harvest plans, do not currently consider caribou and do not address the identified threats to woodland caribou. IDL does consider caribou in their winter access plan and has, in the past, closed snowmobile trails to prevent winter disturbance; however, some of these trail closures have been recently relaxed and will remain open to winter motorized use unless there is a confirmed caribou sighting. Because IDL's land management plans, including timber harvest and winter access, do not consider woodland caribou, we conclude that management of IDL's lands is likely not alleviating or addressing the threat of habitat loss, habitat fragmentation, or disturbance from winter recreation to caribou within the Selkirk Mountains subpopulation.
Hunting regulations at the national and State levels provide adequate protections regarding the legal take of caribou in the United States. We do not have data that suggest illegal killing is affecting caribou numbers in any of the subpopulations within the southern mountain caribou DPS, and we do not consider this a threat to the species.
In Canada, the southern mountain caribou DPS is protected as threatened at the national level under SARA, while British Columbia considers them to be critically imperiled. British Columbia, Canada, has also enacted legislation (
Caribou subpopulations continue to decline within the southern mountain DPS despite regulatory mechanisms being in place in the United States and Canada. However, U.S. Federal and State, and Canadian national and provincial, regulations are providing some protection for the caribou within the southern mountain caribou DPS. The current status of caribou habitat is largely an artifact of historical (and in some cases current) silvicultural practices and wildfires that reset the successional forest stage and structure favoring early successional ungulate species (
We have determined that, while existing regulatory mechanisms in the United States and Canada enable both the United States and Canada to ameliorate to some extent the identified threats to the southern mountain caribou DPS, the existing mechanisms do not completely alleviate the potential for the identified threats to adversely affect the status of southern mountain caribou and their habitat.
As explained previously, predation and genetic drift are two examples of demographic stochasticity that can negatively impact the status of these small, fragmented mountain caribou subpopulations. Mountain caribou, because they live in high-elevation, steep habitats that receive deep winter snowfall, are also susceptible to environmental stochastic factors such as avalanches. According to Seip and Cichowski (1996, p. 76), avalanches are a natural source of mortality to caribou. This has been a notable threat to caribou within the Revelstoke area of Canada, within the southern mountain caribou DPS, where the terrain is particularly steep and rugged with very high snowfall (Seip and Cichowski 1996, p. 76). Although avalanches are generally a natural phenomenon, the threat of avalanches to caribou may be increasing because caribou may be displaced into steeper, more avalanche-prone terrain during the winter from snowmobile and other winter recreational activities (Simpson 1987, p. 1; Seip and Cichowski 1996, p. 79).
Threats of all stochastic events such as avalanches become more serious as subpopulations become isolated and population numbers decrease. This is the case in the southern extent of the southern mountain caribou DPS. For example, a small population of fewer than 10 individuals in Banff National Park (just outside the southern mountain caribou DPS) was extirpated in April of 2009, from a single avalanche event (Hebblewhite
As discussed in “Biology” under
Additionally, the two subpopulations predicted not to be extirpated within 90 years are located at the far north of the DPS's range; in fact, they are the two most northern subpopulations within the DPS. Thus, after 90 years, it is predicted that the DPS will have been extirpated from over 65 percent of its current range, including most of the southern portion, which would severely reduce representation
We are not aware of any conservation measures currently being implemented to reduce impacts to caribou from avalanches or other stochastic events.
Caribou are susceptible to stochastic events such as avalanches due to small subpopulation sizes and isolation of these subpopulations. Subpopulations are increasingly at risk from impacts of stochastic events as they become more isolated and their population numbers decline. The threat from avalanches is amplified further when caribou are displaced from their preferred habitat into steeper, more dangerous habitat as a consequence of human recreation. Therefore, we have determined these other natural or manmade factors affecting its continued existence pose threats to the continued existence of the southern mountain caribou DPS.
As alluded to in the discussions above, many of the causes of caribou population declines are linked, often by the threat of habitat alteration. For example, predation is one of the most significant threats to caribou within the southern mountain caribou DPS. Predation is directly linked, in part, to habitat alteration and the associated introduction of early seral vegetation and the creation of roads within caribou habitat in the southern mountain caribou DPS. Specifically, the introduction of early seral habitat and new forest roads has altered the predator/prey ecology of the southern mountain caribou DPS by creating suitable habitat for alternate ungulate prey and accessibility for their predators, respectively, into caribou habitat. Human disturbance, another of the threats to caribou within the southern mountain caribou DPS, is also linked to habitat alteration because of the increased accessibility of caribou habitat that new forest roads have provided. Habitat alteration, in turn, is directly tied to and caused by another, and possibly two other, threats listed above—human development and climate change. Specifically, human development and the resources it requires, probably in concert with climate change, have altered caribou habitat within the southern mountain caribou DPS. This alteration has occurred through forest harvest and the creation of new infrastructure. It is reasonable to expect that human development and the resources it demands will continue to alter and fragment caribou habitat in the future. This, in turn, will continue to promote altered predator/prey ecology and associated increases in caribou predation, and human disturbance in caribou habitat within the southern mountain caribou DPS. The suite of all these related threats, combined with each other, have posed and continue to pose a significant threat to caribou within the southern mountain caribou DPS.
In the proposed rule published on May 8, 2014 (79 FR 26504), we requested that all interested parties submit written comments on the proposal by July 7, 2014. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Lewiston Morning Tribune, Idaho Statesman, Coeur d'Alene Press, Spokesman Review, Bonners Ferry Herald, Bonner County Daily Bee, Priest River Times, and The Miner. Subsequently, on June 10, 2014, we extended the public comment period until August 6, 2014 (79 FR 33169). We received requests for public hearings. Public informational sessions and hearings were held on June 25, 2014, in Sandpoint, Idaho, and on June 26, 2014, in Bonners Ferry, Idaho (79 FR 33169). On March 24, 2015, we reopened the public comment period for an additional 30 days, ending on April 23, 2014, to allow the public time to review new scientific information received after the previous public comment period (80 FR 15545). We also reopened the public comment period on April 19, 2016, for an additional 30 days, ending on May 19, 2016, addressing a U.S. District Court for the District of Idaho remand of the final critical habitat rule to correct a procedural error (81 FR 22961).
Including all public comment periods for the proposed rule, we received over 400 individual comments. Additionally, we received a form letter representing comments from almost 2,000 different individuals. During the June 25, 2014, public hearing in Sandpoint, Idaho, six individuals or organizations made comments, and during the June 26, 2014, public hearing in Bonners Ferry, Idaho, five individuals or organizations provided comments on the proposed rule. All substantive information provided during comment periods has either been incorporated directly into this final determination or is addressed below.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise that included familiarity with the southern mountain caribou DPS and its habitat, biological needs, and threats. We received responses from all four of the peer reviewers.
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of the southern mountain caribou DPS. The reviewers provided comments and clarifications pertaining to the taxonomy of mountain caribou, status of the DPS, type and degree of threats affecting the status of the DPS, and our proposal to list the DPS as threatened. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
We have removed the reference to the Banff and Jasper subpopulations (79 FR 26504, May 8, 2014, see p. 79 FR 26521). However, the Ontario reference was used in discussions pertaining to the historical distribution of woodland caribou, and as an example of a potential disease vector that could migrate west and affect woodland caribou in the southern mountain caribou DPS (see
Regarding the apparent discrepancies in the literature surrounding the number and names of extant subpopulations that are encompassed within the boundary of this DPS, further explanation would be helpful. Over time, Canada has grouped its caribou populations in accordance with various assessments (COSEWIC 2002, entire; COSEWIC 2011, entire), which has resulted in shifting boundaries, and moving one or more subpopulations between differing geographic groupings of populations. Additionally, not only have the boundaries of the subpopulations, and, thus, the number of subpopulations within them changed, but some subpopulations within the boundaries have been combined. For example, the Allan Creek subpopulation listed in Hatter (2006,
Hatter (2006, entire,
Regarding the comment that the extinction rate of the southern mountain caribou DPS may be accelerating due to small subpopulation sizes, there appears to be some merit to this argument. The number of animals in the DPS has declined by at least 45 percent over the last 27 years (3 generations), 40 percent over the last 18 years (2 generations), and 27 percent since the last assessment by COSEWIC in 2002 (roughly 1.4 generations). Given this data, the rate of population decline appears to be accelerating, which is supported by Wittmer
Finally, regarding climate change, the information currently available on the effects of global climate change and increasing temperatures does not make precise estimates of the location and magnitude of the effects possible at this time. However, climate change modeling has projected changes (
Under our DPS policy, assessing the significance of a discrete population to the taxon may consider several lines of evidence or analysis. Under the DPS policy only one line of evidence is needed to demonstrate that the southern mountain caribou population is significant relative to the woodland caribou subspecies. We have identified two: (1) Persistence in a unique ecological setting, and (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon. In summary, the best available science supports our determination that this population exists in an ecological setting unique to the taxon, and its loss would represent a significant gap in the range of the taxon, and, therefore, it is a DPS pursuant to our DPS policy.
Additionally, unlike the polar bear example, where the species exhibits universal reliance on sea ice for its survival, caribou in the southern mountain caribou DPS occupy different habitats in a very different ecological setting from other woodland caribou populations, and have evolved a very unique foraging strategy to secure their life-history needs. Other neighboring caribou populations occupy less steep, drier terrain with less winter snow pack, and do not feed on arboreal lichens during the winter (Thomas
In accordance with section 4(b)(1) of the Act, the Service is required to use the “best available scientific and commercial data” in its listing determinations. Our Policy on Information Standards under the Act (published in the
Primary or original information sources are those that are closest to the subject being studied, as opposed to those that cite, comment on, or build upon primary sources. The Act and our regulations do not require us to use only peer-reviewed literature, but instead they require us to use the “best scientific and commercial data available” in a listing determination. We use information from many different sources, including articles in peer-reviewed journals, scientific status surveys, and studies completed by qualified individuals; Master's thesis research that has been reviewed but not published in a journal; other unpublished governmental and nongovernmental reports; reports prepared by industry; personal communication about management or other relevant topics; conservation plans developed by States and counties; biological assessments; other unpublished materials; experts' opinions or personal knowledge; and other sources.
Within the United States, a majority of the habitat occupied by the southern Selkirk Mountain woodland caribou subpopulation of southern mountain caribou DPS is administered by national forests, specifically the IPNF and CNF. Federal agencies, pursuant to section 7 of the Act, are required to coordinate with the Service on any actions the agencies undertake, fund, or permit that have the potential to affect listed species (in this case, the caribou). Therefore, pursuant to section 7 consultation under the Act, the Service will coordinate with the Federal agencies (
We also understand that all other woodland caribou subpopulations (including the transboundary southern Selkirk Mountain subpopulation) and their habitat occur in British Columbia, Canada. Canada has implemented several measures to manage and protect caribou habitat from further fragmentation and loss, including, but not limited to: (1) In 2007, Canada endorsed the Caribou Recovery Implementation Plan (MCRIP) that protects 5,436,320 ac (2,200,000 ha) from logging and road building; and (2) all national parks (NPs) in Canada are strictly protected from commercial resource extraction, which includes Glacier NP and Mount Revelstoke NP that together comprise approximately 333,345 ac (134,900 ha). For more information, under the Factor A analysis, above, see
Based on an analysis conducted by Wittmer
Regarding management of wolves, on May 5, 2011, in accordance with Public Law 112-10, the Service issued a final rule (76 FR 25590) reinstating the April 2, 2009, delisting rule (74 FR 15123) whereby wolves in eastern Washington and Idaho (as well as other States) were removed from the Federal List of Endangered and Threatened Wildlife. Accordingly, management of wolves in eastern Washington and Idaho are the responsibility of the respective States in which they reside. Wolves may be exerting disproportionate predation pressure on caribou as a result of altered forest structure that may be facilitating higher prey densities and increased distribution and thus higher wolf densities and distribution than would naturally occur in the Selkirk Mountains. To address this issue, we will coordinate with our State wildlife partners (
Recovery of this DPS will require implementation of a comprehensive recovery strategy, including predator management. As stated above, we will coordinate with our State wildlife partners (
Relative to predation by wolves on other cervids, the Service is certainly aware that this occurs. However, within the context of this listing decision, we are required to address the threats to this DPS of woodland caribou, and predation is identified as a threat to this DPS. Regarding the statement that the Service is misleading the public over whether habitat alteration/fragmentation or wolf reintroduction is the primary catalyst driving the predator-prey ecology within the Selkirk ecosystem, we acknowledge the commenter's opinion. Wolves were reintroduced into central Idaho and Yellowstone National Park in 1994, as nonessential experimental populations in accordance with the Service's final environmental impact statement (FEIS; USFWS 1994b, entire). The Service's FEIS stated that, over a timeframe of 15 years prior to 1994, wolves had naturally recolonized northwest Montana as a result of natural dispersal from Canada (USFWS 1994b, p. vi). Thus, it is likely that recolonization of the Selkirk Mountains by wolves is a result of dispersal of wolves from farther north in Canada and/or northwest Montana. Gray wolves, upon arriving in the Selkirk Ecosystem, have also very likely benefited from the increased abundance and distribution of prey species (deer, moose, elk) whose population growth and expansion in the Selkirk Mountains have likely benefited from the alteration and fragmentation of the older successional boreal forest through fires (both natural and manmade) and historical silvicultural practices to younger successional forests that these species require. Increased abundance and distribution of these other cervid species (
Regarding the statement that we relied on a single characteristic to establish the significance of this DPS relative to the woodland caribou taxon, please see our responses to
Relative to connectivity of the southern mountain caribou DPS to other neighboring mountain caribou populations (
Additionally, we are unclear as to the reference to the isolation of the southern Selkirk Mountain caribou subpopulation. The analysis under Discreteness in the May 8, 2014, proposed rule (79 FR 26504, see p. 26509) assessed the discreteness of the southern mountain caribou population relative to the neighboring Northern and Central Mountain Caribou populations. This analysis did not assess the relative connectivity of the southern Selkirk Mountains subpopulation to other subpopulations within the southern mountain caribou DPS. Nonetheless, as just described, the best available science indicates that the subpopulations within the southern mountain caribou DPS (including the southern Selkirk Mountains subpopulation) are now largely isolated from one another. The physical and reproductive isolation of these subpopulations may have significant implications for the conservation of the southern mountain caribou DPS as mountain caribou appear to lack the inherent behavior to disperse long distances (van Oort
Regarding the use of Hatter
Regarding the management of recreational snowmobile access, management of these lands is not under the Service's purview. In the United States, management of lands occupied by the southern Selkirk Mountain woodland caribou subpopulation is within the purview of the Federal (
The Service acknowledges that some seasonal limitations on motorized (primarily pertaining to snowmobiles) vehicle access to public lands have occurred since listing of the southern Selkirk Mountains subpopulation of woodland caribou under the Act. These seasonal closures were put in place to minimize disturbance to caribou, and include a 1994 closure for a large area of the Selkirk Crest on the IPNF. The 1994 closure was put in place to protect caribou from impacts related to snowmobiling, in coordination with the IDFG. Additionally, we understand that a court-ordered injunction in 2006, which was modified in 2007, has restricted much of the area used by caribou within the Selkirk Crest from snowmobiling, until the IPNF develops a winter recreation strategy addressing the effects of snowmobiling upon the species. The Service will work closely with the IPNF on the development of their winter recreation strategy.
Additionally, except for the transboundary southern Selkirk Mountain subpopulation, all other subpopulations of this DPS occur in Canada. Canada recognizes the potential effect of snowmobile recreation on caribou and their habitat. For example, in 2009, the British Columbia's Ministry of Environment closed approximately 2,471,050 ac (1,000,000 ha) of caribou habitat within the Canadian portion of the southern mountain caribou DPS to snowmobile use (MCRIPPB 2010, p. 10). The Service is committed to achieving the conservation and recovery of the DPS, as is required by the Act. To that end, we will actively coordinate with our partners in the United States (
The Service disagrees with the comment that only species, as opposed to subspecies, can be listed as DPSs under the Act. The Act defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532(16)). The Service has long interpreted the Act to authorize designation of a DPS of both species and subspecies. The 1996 DPS Policy explains the following: “Restricting listings to full taxonomic species would render the Act's definition of species, which explicitly includes subspecies and DPS's of vertebrates, superfluous. Clearly, the Act is intended to authorize listing of some entities that are not accorded the taxonomic rank of species, and the Services are obliged to interpret this authority in a clear and reasonable manner” (61 FR 4722-4723; February 7, 1996). Consequently, the Service believes “that the authority to address DPS's extends to species in which subspecies are recognized, since anything included in the taxon of lower rank is also included in the higher ranking taxon” (61 FR 4724; February 7, 1996). Courts have specifically found that listing a DPS of a subspecies is a permissible construction of the Act (
At the time of listing, Scott and Servheen (1984, p. 27) documented two woodland caribou bulls utilizing habitat near Little Snowy Top and Upper Hughes Ridge in Idaho and Sullivan Creek in Washington. These two bulls were part of the transboundary subpopulation occupying habitat in the Selkirk Mountains of northeastern Washington, northwestern Idaho, and southern British Columbia, Canada. Furthermore, 60 woodland caribou were translocated into Ball Creek drainage, Boundary County, Idaho, from 1987 to 1990 (Compton
Regarding habitat suitability in the U.S. portion of the Selkirk Mountains, results of habitat suitability modeling conducted by Kinley and Apps (2007, pp. 24-25) indicate that there is sufficient high-quality caribou habitat within the U.S. portion of the Selkirk Mountains to support caribou foraging and reproduction. Thus, the availability of high-quality caribou habitat is not currently limiting the growth of this subpopulation. Rather, currently, we believe predation is the overriding proximate factor driving the decline of this population. Predator populations (primarily gray wolves and mountain lions) have very likely benefited from the increased abundance and distribution of prey species (deer, moose, elk) whose population growth and expansion in the Selkirk Mountains have likely benefited from the alteration and fragmentation of the older successional boreal forest through fires (both natural and manmade) and historical silvicultural practices to younger successional forests that these species require. Increased abundance and distribution of these other ungulate prey species (
Regarding the comment that we have never implemented a recovery plan, we assume the comment pertains to woodland caribou. We first developed a recovery plan for the previously listed southern Selkirk Mountains subpopulation of woodland caribou in 1985 (USFWS 1985) and updated the recovery plan in 1994 (USFWS 1994a). Several of the 1994 recovery plan's recommended actions were implemented. For example, one of the plan's objectives was to manage for an increasing population. To accomplish that objective, two separate augmentation efforts transplanted 103 caribou into the southern Selkirk Mountains in the 1980s and 1990s from source populations farther north in British Columbia, Canada. These augmentation efforts resulted in a fairly stable population (Wakkinen
Grizzly bears have not been reintroduced or augmented into the Selkirk Mountains in Idaho or Washington. The Selkirk Ecosystem currently supports a low density grizzly bear population, but the species has always occurred in this area. Likewise, gray wolves have not been reintroduced into the Selkirk Mountains in Idaho or Washington. Wolves were reintroduced into central Idaho and Yellowstone National Park in 1994, as nonessential experimental populations in accordance with the Service's final environmental impact statement (FEIS; USFWS 1994b, entire). The Service's FEIS identified that, over a timeframe of 15 years prior to 1994, wolves had naturally recolonized northwest Montana as a result of natural dispersal from Canada (USFWS 1994b, p. vi). Thus, it is likely that recolonization of the Selkirk Mountains by wolves is a result of dispersal of wolves from farther north in Canada and/or northwest Montana. However, we acknowledge that currently predation by primarily wolves, but to a lesser extent grizzly bears and mountain lions, is likely affecting the status of caribou in the Selkirk Mountains. While recovery planning is beyond the scope of this listing decision, the Service will work with our partners within the United States (
In the November 28, 2012, final rule, we based our final designation of critical habitat for the southern Selkirk Mountains subpopulation of woodland caribou on the best available scientific information. In that final rule, we determined that the majority of habitat essential to the conservation of this subpopulation occurs in British Columbia, Canada, although the U.S. portion of the habitat used by the caribou makes an essential contribution to the conservation of the species. Regulations at 50 CFR 424.12(g) state that critical habitat shall not be designated within foreign countries or in other areas outside of U.S. jurisdiction; therefore, any designation of critical habitat for the southern mountain caribou DPS must be limited to that portion of the DPS that occurs within the boundaries of the United States. We designated as critical habitat approximately 30,010 ac (12,145 ha) of land within Boundary County, Idaho, and Pend Oreille County, Washington, that meet the definition of critical habitat (see our response to
Additionally, the Act does not require designation of critical habitat throughout a listed species' historical range. The Act does require that we propose and finalize critical habitat designations concurrent with issuing proposed and final listing rules, respectively, to the maximum extent prudent and determinable. Designation of critical habitat for listed species may include areas within the geographical area occupied by the species at the time it is listed, as well as areas outside the geographical area occupied by the species at the time of listing. Areas occupied by the species at the time of listing and designated as critical habitat must contain the physical and biological features essential to the conservation of the species and which may require special management considerations or protections. The Service may designate specific areas not occupied by the species at the time of listing, but only to the extent that such areas are determined essential for the conservation of the species.
Regarding occupancy at the time of emergency listing in 1983 (48 FR 1722, January 14, 1983) and final listing in 1984 (49 FR 7390, February 29, 1984), neither of these rules defined “occupancy.” The original area of occupancy (375,562 ac (151,985 ha)) identified in the November 30, 2011, proposed critical habitat rule (76 FR 74018) was based on the 1983 emergency listing and 1984 final listing rule descriptions of “approximate area of utilization” (48 FR 1722) and “area of normal utilization” (49 FR 7390), which we equated to mean “occupancy at the time of listing.” However, peer review comments submitted on the proposed critical habitat rule caused us to reexamine the basis of our analysis pertaining to the geographical area occupied by the species at the time of listing in 1983 and 1984. Based on the reexamination, we considered the studies conducted by Scott and Servheen (1984 and 1985) to be the most definitive with regard to establishing the area occupied by the southern Selkirk Mountain subpopulation of woodland caribou at the time of listing in 1983 and 1984. Scott and Servheen, who conducted their studies on this subpopulation of woodland caribou from 1983 to 1984, documented extensive use by caribou of habitat in British Columbia in drainages just north and adjacent to B.C. Highway 3. In contrast, they documented use of habitat in the United States by only two bull caribou located near Little Snowy Top and Upper Hughes Ridge in Idaho, and Sullivan Creek in Washington (Scott and Servheen 1984, p. 19). Caribou were not documented any farther south within Washington or Idaho during the course of helicopter and ground tracking surveys. Consequently, we determined that the area generally depicted in Scott and Servheen (1984, p. 27) as the area that was occupied by this subpopulation of caribou at the time they were listed in 1983 and 1984. The area actually designated as critical habitat for this subpopulation (30,010 ac (12,145 ha)) was adjusted for elevation and habitat use based on seasonal habitat suitability modeling (see 77 FR 71063-71064, November 28, 2012). The Service determined that areas within the United States not occupied by this subpopulation at the time of listing were not essential for the conservation of the
Furthermore, designation of critical habitat for the southern Selkirk Mountains subpopulation of woodland caribou occurred well before we undertook the DPS analysis for this species. Thus, our determination that the southern Selkirk Mountains woodland caribou subpopulation was not a DPS had no bearing on the final critical habitat designation. However, because the southern Selkirk Mountains subpopulation is part of the southern mountain caribou DPS, and is the only subpopulation within this DPS that occurs within the United States and where we have the authority to designate critical habitat, we reaffirm our November 28, 2012, final designation of critical habitat for the southern Selkirk Mountains population of woodland caribou (77 FR 71042, November 28, 2012) as critical habitat for the southern mountain caribou DPS.
Finally, the final critical habitat designation of 30,010 ac (12,145 ha) did not affect or reduce the size of the existing recovery area (also known as the recovery zone) boundary, and did not signal that habitat outside the designated area is unimportant or may not contribute to the recovery of the species. As stated previously, the purposes of the Act are to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such endangered and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in section 2(a) of the Act. Although recovery planning is beyond the scope of this listing decision, we are committed to achieving the conservation and recovery of the DPS, as is required by the Act. Please see our response to
Relative to this DPS, we completed an economic analysis on the designation of critical habitat for the southern Selkirk Mountains subpopulation of woodland caribou in accordance with section 4(b)(2) of the Act. We announced availability of the draft economic analysis for review, and reopened a 30-day public comment period to take comment on the draft economic analysis for the proposed designation of critical habitat, on May 31, 2012 (77 FR 32075). We published the final economic analysis, which incorporated comments received on the draft economic analysis during the public comment period, concurrently with the final rule designating critical habitat for southern Selkirk Mountains subpopulation of woodland caribou on November 28, 2012 (77 FR 71042). The May 8, 2014, proposed rule (79 FR 26504) to amend the listing of the southern Selkirk Mountains subpopulation of woodland caribou to the southern mountain caribou DPS stated that we are “reaffirming” our November 28, 2012, final critical habitat designation. As such, the final economic analysis completed for the designation of critical habitat in 2012 (77 FR 71042, November 28, 2012) is incorporated by reference into this final determination for the southern mountain caribou DPS. Please see the November 28, 2012, final critical habitat rule (77 FR 71042) for an analysis of the economic impacts associated with the designation of critical habitat that is applicable to this DPS listing. Subsequent to that final critical habitat rule, and the reopening of the comment period on April 19, 2016 (81 FR 22961), for the final critical habitat rule in response to the March 23, 2015, court order to address a procedural error, the Service has not received any additional or new economic information or data. Additionally, because we are simply “reaffirming” a critical habitat designation for which an economic analysis was completed, it is not necessary to complete a new economic analysis.
Regarding the economic analysis commissioned by Bonner County and ISSA, the analysis was based on the impacts to the economies within the area proposed for designation as critical habitat (approximately 375,562 acres (151,985 ha)) and not on the area actually designated as critical habitat (approximately 30, 010 acres (12,145 ha)), a reduction of 345,552 ac (139,839 ha). Additionally, the area designated as critical habitat is comprised entirely of National Forest lands (CNF, IPNF, and the Salmo-Priest Wilderness Area); there are no non-Federal (
On November 28, 2012, we published a final rule (77 FR 71042) designating critical habitat for the southern Selkirk Mountains subpopulation of woodland caribou that we found to meet the definition of critical habitat as described in our response to
Relative to designating critical habitat for endangered versus threatened species, section 4(a)(3)(A)(i) of the Act requires the designation of critical habitat for both endangered and
Regarding USBP activities, the designation of critical habitat in the Selkirk Mountains for the southern mountain caribou DPS would not restrict, regulate, or determine the ability of the USBP to operate in close proximity to the U.S. border. Within caribou habitat, the USBP operates, for the most part, on National Forest System lands and its existing roads and trails. The March 31, 2006, Memorandum of Understanding (MOU) between the Secretary of the Interior, Secretary of Homeland Security, and Secretary of Agriculture Regarding Cooperative National Security and Counterterrorism Efforts on Federal Lands Along the U.S. Borders commits the agencies to preventing illegal entry into the United States, protecting Federal lands and natural and cultural resources, and where possible, preventing adverse impacts associated with illegal entry by cross-border-violators (CBVs). The intent of the MOU is to provide consistent goals, principles, and guidance related to border security such as law enforcement operations; tactical infrastructure installation; utilization of roads; minimization and/or prevention of significant impact on or impairment of natural and cultural resources; and implementation of the Wilderness Act, Endangered Species Act, and other related environmental laws, regulations, and policies across land management agencies. The MOU is also intended to facilitate coordination and sharing information on threat assessments and other risks, plans for infrastructure and technology improvements on Federal lands, and operational and law enforcement staffing changes. Through this 2006 MOU, and local groups such as the Spokane Sector Borderlands Management Task Force, the three departments are cooperating to understand, respect, and accomplish their respective missions. The MOU includes provisions for Customs and Border Protection (CBP) vehicle motor operations on existing public and administrative roads and/or trails and in areas previously designated by the land management agency for off-road vehicle use at any time, provided that such use is consistent with presently authorized public or administrative use. It also includes provisions for CBP requests for access to additional Federal lands (
In the November 28, 2012, final critical habitat determination (77 FR 71042), which the Service proposed to reaffirm in our May 8, 2014, proposal to amend the listing of the southern mountain caribou DPS (79 FR 26504), the Service based our final designation of critical habitat for the southern Selkirk Mountains subpopulation of woodland caribou on the best available scientific information. As we stated in our final critical habitat rule (77 FR 71042, November 28, 2012, see p. 77 FR 71064), our analysis of that information led us to conclude that, for reasons not fully understood, this subpopulation of caribou appears to be primarily dependent upon the availability of habitat in British Columbia. We concluded that the majority of habitat essential to the conservation of the southern Selkirk Mountains subpopulation of woodland caribou occurs in British Columbia, Canada, and the U.S. portion of the habitat used by the caribou makes an essential contribution to the conservation of the species. We determined that the 30,010 ac (12,145 ha) designated as critical habitat within the Selkirk Mountains in the United States, combined with the amount of habitat protected and managed for woodland caribou within Canada, meets the amount of habitat recommended to be secured and enhanced in the 1994 recovery plan (443,000 ac, (179,000 ha)) to support a recovered population (USFWS 1994, pp. 28, 30-31). As we noted in the final critical habitat rule (77 FR 71042, November 28, 2012, see p. 77 FR 71066), Canada has protected 282,515 ac (114,330 ha) of Crown Lands from further timber harvest within the Selkirk Mountains to support woodland caribou conservation (DeGroot 2012, pers. comm.), and the NCC has purchased and is managing approximately 135,908 ac (55,000 ha) of the former Darkwoods property located within the Selkirk Mountains in British Columbia for caribou (The NCC 2011, p. 4; DeGroot 2012, pers. comm.). These acres in Canada, when added together with the U.S. acres of designated critical habitat, provides approximately 448,443 ac (181,478 ha) of habitat protected within the Selkirk Mountains for woodland caribou conservation. Additionally, areas in the United States designated as critical habitat for the species are immediately adjacent to, and contiguous with, the Crown Lands protected in Canada for woodland caribou conservation. The protection of these connected habitats in the United States and British Columbia is intended to facilitate the expansion of this subpopulation (both geographic distribution and number of individuals) as well as continued woodland caribou movement and seasonal habitat use and other behaviors that this population currently and historically exhibited.
Finally, while recovery planning is outside the scope of this listing decision, we are committed to achieving the conservation and recovery of the DPS, as is required by the Act. The Service also acknowledges that the existing 1994 recovery plan that is specific to the southern Selkirk Mountains subpopulation of this DPS is outdated. The Service will actively coordinate and participate in the development of a recovery plan with our partners within the United States (
In the sturgeon case, plaintiffs argued that the area designated as critical habitat did not contain the primary constituent elements (now referred to as the physical and biological features (PBFs)) identified in the final critical habitat rule and suggested that the Service should designate as critical habitat areas that were currently not known to be occupied by sturgeon but that contained the PBFs; the lacking PBFs pertained to spawning substrate. The judge agreed and remanded the case to the Service for reconsideration. It should be noted that when the area was originally designated as critical habitat the Service believed the area did, in fact, provide the spawning substrate PBF. However, through new science generated subsequent to the final critical habitat determination, the Service learned that the designated critical habitat did not provide spawning substrate. Consequently, the Service re-evaluated the critical habitat determination, and designated the area unoccupied by sturgeon, but available to them as critical habitat (73 FR 39506, July 9, 2008). In contrast to facts the surgeon case, the area designated as critical habitat for caribou provides the identified PBFs for caribou. Please refer to the final critical habitat determination for a description of the PBFs (77 FR 71042, November 28, 2012, see p. 77 FR 71070).
In our final critical habitat rule (77 FR 71042, November 28, 2012), we determined that the 30,010 ac (12,145 ha) of occupied, designated critical habitat in the United States made an essential contribution to the species conservation when added to the approximately 418,423 ac (169,329 ha) of caribou habitat protected in Canada. Furthermore, the caribou habitat designated as critical habitat in the United States is adjacent to and contiguous with habitat in Canada, such that movement and habitat use by individuals of this population between the United States and Canada will be facilitated. We also determined that currently unoccupied habitat in the United States, which was historically part of the species' range, was not essential for the species' conservation because, as we stated in that final rule, the best available scientific information indicates that the range of this population appears to have shifted northward. For reasons not fully understood, the southern Selkirk Mountains population of woodland caribou continues to utilize habitat in Canada to a greater extent than would otherwise be expected based on habitat suitability modeling.
Regarding the peer reviewers' comments that the areas proposed for designation were sufficient, they suggested that we refine our proposal using Kinley and Apps (2007) and Wakkinen and Slone (2010) to better reflect newer science pertaining to caribou habitat use and movement patterns. However, the peer reviewers did not indicate that the area proposed for designation was essential to the conservation of the species; they simply indicated it was sufficient,
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we determine whether a species is an endangered species or threatened species because of any one or a combination of the following: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. These five factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.
The Act defines “endangered species” as any species that is “in danger of extinction throughout all or a significant portion of its range” (16 U.S.C. 1532(6)) and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C. 1532(20)). The definition of “species” is also relevant to this discussion. On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). In our policy, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; or a species may be in danger of extinction or likely to become so throughout a significant portion of its range. If a species is in danger of extinction throughout an SPR, the species, is an “endangered species.” The same analysis applies to “threatened species.” The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations.
We proposed to list the southern mountain caribou DPS as threatened in our May 8, 2014, proposed rule (79 FR 26504). However, based on new information received since the proposed rule and as described previously in this rule, we now conclude that the status of and threats to this DPS warrant listing it as an endangered species.
The current abundance and number of caribou subpopulations within the DPS are limited to an estimated 1,356 individuals in 15 extant subpopulations (COSEWIC 2014, p. xviii). The population is declining, and based on population estimates over generations, it appears that the population rate of decline is accelerating (see below). Additionally, while it is difficult to establish a precise historical distribution of woodland caribou (including the distribution of the southern mountain subpopulation of woodland caribou), according to COSEWIC (2014, p. 14), mountain caribou were much more widely distributed than they are today, and based on this information, the range of this DPS is decreasing.
As previously discussed under Summary of Factors Affecting the Species, significant threats to the southern mountain caribou DPS include increased levels of predation due to changes in the predator/prey dynamics (factor C); increased human access into caribou habitat, resulting in disturbance of caribou from use of roads and off-road vehicles (factor B); and climate change (factor A). All of these threats are linked with continuing habitat alteration (factor A) and occur throughout the entire range of the DPS. These threats are not adequately ameliorated by existing regulatory mechanisms (factor D). Through this evaluation, we have determined that these factors pose significant threats to the continued existence of the southern mountain caribou DPS. These threats are expected to continue in the foreseeable future.
As described above, under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or throughout a significant portion of its range. The Act defines “species” as follows: “The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532(16)). As implemented by the Service, to be currently on the brink of extinction in the wild does not necessarily mean that extinction is certain or inevitable. Ultimately, whether a species is currently on the brink of extinction in the wild (including the timing of the extinction event itself) depends on the life history and ecology of the species, the nature of the threats, and the species' response to those threats (USFWS 2010, in litt.).
We have carefully evaluated the best scientific and commercial data available regarding the past, present, and future threats to the southern mountain caribou DPS. As described above in this rule, the southern mountain caribou DPS has a limited distribution that has suffered ongoing major reductions of its numbers and range as a result of threats that have not been abated. These declines have resulted in further isolation of subpopulations that make up this DPS.
For the reasons outlined above in the final rule and as briefly summarized here, we have determined that the southern mountain caribou DPS meets the definition of an endangered species because it is in danger of extinction throughout all of its range.
1. The species' response to ongoing threats has resulted in further declines in subpopulation abundance. All 15 extant subpopulations consist of fewer than 400 individuals each, 13 of which have fewer than 250, and 9 of which have fewer than 50 (COSEWIC 2014, p. xviii). Fourteen of the 15 extant subpopulations within this DPS have declined since the last assessment by COSEWIC in 2002 (COSEWIC 2014, p. vii). Based on COSEWIC's 2014 report (p. vii), which is new information received after we published our proposed amended listing rule (79 FR 26504, May 8, 2014), the rate of the population decline is accelerating. The accelerated rate of population decline is supported by Wittmer
2. A PVA conducted by Hatter (2006, p. 7,
3. Given the likelihood of extirpation of 13 of 15 subpopulations within 20 to 90 years, the entire DPS is at risk of extinction due to lack of redundancy (ability of the species to withstand catastrophic events) and resiliency (ability of the populations to withstand stochastic events) of the remaining 2 subpopulations whose status' are likely to be negatively affected by existing demographic and/or environmental stochastic threats. Mountain caribou are susceptible to avalanches, have low reproductive rates, and have high calf mortality. Low reproductive rates and high calf mortality reduce the resiliency of the subpopulation. Therefore, the decreased redundancy and reduced resiliency of the southern mountain caribou DPS places it at greater risk of extinction sooner than 200 years (as predicted by Wittmer 2010, entire) due to existing demographic and environmental stochastic threats.
4. Further exacerbating the decline and potential extirpation of mountain caribou subpopulations is that mountain caribou appear to lack the inherent behavior to disperse long distances (van Oort
5. The three largest subpopulations are declining, contain fewer than 400 individuals each (COSEWIC 2014, p. 41), are isolated from other subpopulations (van Oort
6. As explained previously, habitat alterations (increased distribution and quantity of early successional habitats) have increased predation of southern mountain caribou, particularly by wolves and mountain lions. Predation is thought to be the principal and proximate factor driving their recent decline. It will likely require greater than 150 years (greater than 16 generations of caribou) of habitat protections for these early successional and fragmented forests to develop the old-growth habitat characteristics (vegetative structure and composition) (Stevenson
In summary, all 15 extant subpopulations consist of fewer than 400 individuals each: 2 subpopulations have greater than 300 individuals; 4 subpopulations have between 50 and 210 individuals each; and 9 subpopulations each have fewer than 50 individuals. Based on updated trend data (COSEWIC 2014, p. xviii), the rate of population decline of each subpopulation appears to be accelerating. A recent PVA indicates that there is a likelihood of 13 of 15 subpopulations becoming quasi-extinct in 20 to 90 years, which is likely to lead rapidly to their extirpation. The extirpation of these subpopulations would leave only two subpopulations (Hart Ranges and North Caribou Mountains) located adjacent to one another at the extreme northern edge of the DPS's range, an over 65 percent reduction of current range. Both of these subpopulations are declining, and the rate of decline appears to be accelerating. The high likelihood of only two adjacent subpopulations remaining at the extreme northern edge of the
Because we found that the species is an endangered species because of its status throughout all of its range, we do not need to conduct an analysis of its status in any portions of its range. This is consistent with the Act because the species is currently in danger of extinction throughout all of its range due to high-magnitude threats across its range, or threats that are so high in particular areas that they severely affect the species across its range. Therefore, the species is in danger of extinction throughout every portion of its range, and an analysis of whether the species is in danger of extinction or likely to become so throughout any significant portion of its range would be redundant and unnecessary. See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578, July 1, 2014).
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the southern mountain caribou DPS. Because the species is in danger of extinction throughout all of its range, the species meets the definition of an endangered species. Therefore, on the basis of the best scientific and commercial data available and per our DPS policy, we amend the current listing of the endangered southern Selkirk Mountains population of woodland caribou, as identified at 50 CFR 17.11(h), to reflect the southern mountain caribou DPS as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through the listing results in public awareness and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
A Selkirk Mountain Caribou Management Plan/Recovery Plan was approved by the Service in 1985 (USFWS 1985), and a revised recovery plan for woodland caribou in the Selkirk Mountains was approved by the Service in 1994 (USFWS 1994a). An update regarding the status of this recovery plan can be found in the latest 5-year status review for the species (USFWS 2008, entire). While actions have been carried out in an attempt to recover this subpopulation, the recovery criteria in the 1994 recovery plan were determined to be inadequate (USFWS 2008, p. 15). In addition, this recovery plan only applies to this one subpopulation, and does not extend to the entire southern mountain caribou DPS. Consistent with this final rule, revisions to the existing plan, in coordination with British Columbia, Canada, will be required to address the entire DPS and the continuing or new threats to the DPS. A new recovery plan for this DPS would identify site-specific management actions that set a trigger for review of the five factors that determine whether the listed entity remains endangered or threatened or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Development of a recovery plan for the southern mountain caribou DPS will be coordinated with species experts from Canada, Tribes, and the United States. When completed, the draft recovery plan and the final recovery plan will be available on our website (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions may include habitat restoration (
Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Idaho and Washington will be eligible for Federal funds to implement management actions that promote the protection or recovery of the southern mountain caribou DPS. Information on our grant programs that are available to aid species recovery can be found at:
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is
Federal agency actions within the species' habitat that may require consultation as described in the preceding paragraph include, but may not be limited to: Management and any other landscape-altering activities on Federal lands administered by the USFS and Bureau of Land Management, issuance of section 404 Clean Water Act (33 U.S.C. 1251
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. Under the Lacey Act (18 U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 50 CFR 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
It is our policy, as published in the
1. Introduction of nonnative species that compete with or prey upon individuals of the southern mountain caribou DPS; and
2. Unauthorized modification of the old growth, coniferous forest landscape within the southern mountain caribou DPS.
At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act due to the variety and nature of activities that may occur within caribou habitat across the range of the DPS. Depending on the implementation timing, intensity, and duration of such activities, it is likely that site-specific conservation measures may be needed for specific activities that may directly or indirectly affect the species.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Idaho Fish and Wildlife Office (see
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.
We address the comments we received from Tribes on our May 8, 2014, proposed amended listing rule (79 FR 26504) under
A complete list of all references cited in this rule is available on the internet at
The primary authors of this final rule are the staff members of the Idaho Fish and Wildlife Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
The revisions read as follows:
(a)
Woodland Caribou (
(2) Within this area, the primary constituent elements of the physical and biological features essential to the conservation of the southern mountain caribou DPS consist of five components: * * *
(iv) High-elevation benches and shallow slopes, secondary stream bottoms, riparian areas, seeps, and subalpine meadows with succulent forbs and grasses, flowering plants, horsetails, willow, huckleberry, dwarf birch, sedges, and lichens. The southern mountain caribou DPS, including pregnant females, uses these areas for feeding during the spring and summer seasons.
(5) Unit 1: Boundary County, Idaho, and Pend Oreille County, Washington. The map of the critical habitat unit follows:
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule.
This final rule is issued to fulfill a requirement in the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21) that NHTSA establish regulations permitting states to adopt schemes that allow electronic odometer disclosure statements in conjunction with electronic titling systems associated with the transfer of interests in motor vehicles. Amendments in this final rule allow odometer disclosures in an electronic medium while maintaining and protecting the existing system(s) ensuring accurate odometer disclosures and aid law enforcement in prosecuting odometer fraud. To accomplish this goal, the final rule amends prior regulations governing transactions made on paper titles and similar documents allowing odometer disclosures to be made in a purely electronic environment or through using paper documents that are scanned and converted into electronic form and stored in a state data system. This final rule also adds new sections containing specific additional requirements only applying to electronic disclosures to ensure the secure creation and maintenance of electronic records. NHTSA is also amending the mileage disclosure exemption to vehicles that are 20 years old or older.
Petitions for reconsideration of this final rule must refer to the docket and notice number set forth above and be submitted to the Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
On Friday, March 25, 2016, NHTSA published a notice of proposed rulemaking (NPRM) specifying potential amendments to part 580 allowing states and other jurisdictions to establish electronic odometer disclosure schemes allowing odometer disclosures required by the Motor Vehicle Information and Cost Savings Act (Cost Savings Act) to be made electronically (81 FR 16107). The odometer disclosure laws and regulations protect purchasers of motor vehicles from odometer fraud.
The NPRM discussed the Moving Ahead for Progress in the 21st Century Act of 2012's (MAP-21, or Pub. L. 112-141) direction that NHTSA promulgate regulations permitting written odometer disclosures and statements to be made electronically. To provide background and context for the proposed rules, the NPRM examined the history and development of existing odometer statutes and regulations from their inception in the Cost Savings Act of 1972 (Pub. L. 92-513, 86 Stat. 947, 961-63 (1972)) through the Truth in Mileage Act (TIMA) and subsequent amendments.
The salient provisions of the odometer disclosure regulations, 49 CFR 580.5, 580.7 and 580.13, were described in the NPRM, including the requirement that odometer disclosures must be made on the title (Section 580.5(c)), the attestation made when executing the
Because of their instructive value, the NPRM examined the petition process by which states may seek approval of alternative odometer disclosure schemes (§ 580.11) and petitions from Virginia, Wisconsin, Florida, New York, and Texas seeking approval of electronic disclosure systems. The NPRM observed such systems must minimize or eliminate disclosures made on paper, provide adequate means for verifying identities, link or merge disclosures with the record title, and preclude duplicate electronic and paper titles. Additionally, the NPRM stated electronic odometer disclosure systems must meet special conditions involved in vehicle leasing, provide for adequate recordkeeping and record retrieval, and accommodate interstate transactions between electronic and paper title jurisdictions.
The NPRM observed the purpose of the odometer disclosure provisions of the Cost Savings Act, as amended, is to protect consumers by ensuring they receive valid representations of a vehicle's actual mileage at the time of transfer. The Agency noted an additional purpose of creating a system of records and a paper trail to facilitate detection and prosecution of odometer fraud. Proposals set forth in the NPRM sought to preserve these attributes while allowing jurisdictions maximum flexibility in developing and deploying electronic titling and odometer disclosure schemes. The NPRM proposed changing part 580 to recognize physical and electronic documents by amending § 580.1 to add the option of electronic disclosures; § 580.3 to add new definitions and amend existing definitions to accommodate physical and electronic filings; § 580.4 to clarify separate requirements for the security of physical disclosures and electronic disclosures; § 580.5 to clarify methods of disclosure for physical and electronic systems; § 580.7 to add provisions allowing for the option of electronic disclosures for leased motor vehicles; § 580.8 to include electronic copies among forms of disclosures that must be retained and general requirements for that retention; §§ 580.13 and 580.14 to allow use of a power of attorney to address interstate transfers and added a new § 580.6 (previously reserved), which would contain unique requirements for electronic odometer disclosures. Other amendments proposed in the NPRM sought to correct a typographical error, update NHTSA's address, strike obsolete text in § 580.12 and extend the disclosure exemption in § 580.17 from 10 years to 25 years.
After careful consideration of all available information, including public comments submitted in response to the NPRM, the agency decided to adopt amendments proposed by the NPRM for §§ 580.1, 580.10, 580.11 and 580.12 without substantive change. Remaining amendments in this final rule differ from proposals in the NPRM. Some of these changes are minor. For example, the final rule replaces the word “his” with “their” and makes other modifications for gender neutrality. Similarly, to enhance clarity, the final rule establishes as definition of “jurisdiction” that encompasses states and territories and replaces “state” wherever formerly used in part 580 with “jurisdiction.” This final rule also adopts additional amendments to enhance clarity and accuracy. Section 580.2 is amended to better describe the status of a vehicle upon termination of a lease, and the term “purchasers” has been replaced with the more accurate and less restrictive term “transferees.” Consistent with the former amendment, the term “dealer” in § 508.13(g) has been changed to “transferee” to reflect that those receiving ownership may include persons or entities who are not dealers.
This final rule also implements significant changes to proposals contained in the NPRM. Broad definitions of physical documents and electronic documents NHTSA proposed have been discarded. Commenters rightly observed these proposed definitions were not apt. The final rule therefore contains new definitions for “Access,” “Electronic Power of Attorney,” “Electronic Title,” “Jurisdiction,” and “Printed Name,” and revises “Original Power of Attorney,” “Sign or Signature,” and “Transferor.” These more precise definitions are applied throughout part 580 to facilitate transactions with physical and electronic titles and powers of attorney. In contrast to the NPRM, which did not provide for an electronic power of attorney but allowed electronic reassignments, this final rule authorizes both under certain circumstances. The definition of “Sign or Signature” has been modified from our earlier proposal in that requirements for an electronic signature require a National Institute of Standards (NIST) level 2 authentication system rather than NIST Level 3. The final rule's requirements for electronic titles and electronic powers of attorney also diverge from the NPRM in allowing authorized modifications to electronic records. In addition, the final rule more clearly recognizes electronic titles and odometer disclosures may take many forms, from scanned copies of paper documents to database entries. Recognizing technologies such as “pen pads” may be used in electronic titling and odometer disclosure systems and paper documents may, in some jurisdictions, be employed in an electronic odometer disclosure system, the final rule removes the NPRM's proposal to delete printed names from electronic transactions. The final rule also modifies requirements for scanning documents to allow document conversion in black and white at a resolution of 200 dot per inch (dpi). Recordkeeping requirements of §§ 580.8 and 580.9 are changed from our earlier proposal to allow more options for transferees and to streamline the proposed rules for auctions. NHTSA has now adopted provisions allowing electronic and paper powers of attorney when a title is unavailable to a transferor because the title is lost, physically held by a lienholder, electronically controlled by a lienholder, or when an electronic title is inaccessible. Our NPRM also proposed changing the exemption from mileage disclosure in § 580.17 for cars 10 years old or older to 25 years old or older. The final rule adopts an exemption for cars 20 years old or older and explicitly sets out how this modified exemption will be applied.
As discussed in Section V of this notice, the agency only performed a detailed cost benefit analysis for the exemption amendments of this final rule. With the exception changing the exemption from mileage disclosure from 10 to 20 years this final rule imposes no mandatory requirements. Amendments to part 580 simply allow jurisdictions the option of adopting electronic title and odometer disclosure systems without seeking prior approval from NHTSA. To the extent provisions in this final rule may affect existing electronic title and odometer disclosure systems in the small number of jurisdictions with such schemes, the agency believes provisions of this final rule are sufficiently flexible requiring little or no change. Since the FAST Act's temporary suspension of the requirement that states must petition NHTSA for
To the limited extent this final rule impacts states and other jurisdictions with electronic titles systems, the agency believes that there is the potential for significant cost savings to be realized through issuance of this final rule. These savings would first be manifested through avoidance of legal and administrative costs to prepare and submit petitions to NHTSA seeking approval of electronic title systems. Moreover, by establishing uniform rules for electronic title systems, this final rule facilitates adoption of electronic disclosures and titles and the use of these mechanisms in vehicle transactions. Currently, NHTSA estimates that there are at least 40 million odometer disclosures made every year in the United States. Since the agency believes that electronic disclosure will be less costly than paper disclosures, even a minor cost savings per disclosure could lead to large societal savings. However, the agency does not have any data on the extent to which this rule will incentivize their existing practices. Certainly, this rule will make it far easier to adopt electronic disclosures as states will no longer need to petition NHTSA if the requirements of this final rule are met. It is reasonable, then, to expect that more states will adopt this practice, but the agency does not now have sufficient data to determine how this general expectation will translate into quantifiable cost savings.
The final rule's modification of the vehicle age-based exemption from odometer disclosure will impose costs and produce benefits. The total cost of the change to the exemption in this final rule is estimated to be from the minimum of $0.7 million in 2020 to the maximum of $5.4 million in 2029 and later. If the rule can deter 5 percent of rollbacks from affected vehicles the rule would eliminate $1.5 million in annual consumer losses in 2020 and $7.5 million in such losses from 2029 forward.
This document is being issued pursuant to the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21, or Pub. L. 112-141), which amended Section 32705 of Title 49, United States Code. The amendments required the Secretary to prescribe regulations permitting any written disclosures or notices and related matters to be provided electronically not later than 18 months after the date of enactment of the Motor Vehicle and Highway Safety Improvement Act of 2012. Section 31205, 126 Stat. 761 (2012).
Section 24111 of the Fixing America's Surface Transportation Act of 2015 (FAST Act, or Pub. L. 114-94), signed into law December 4, 2015, allows states to adopt electronic odometer disclosure systems without prior approval of the Secretary. Any such system must comply with applicable state and federal laws regarding electronic signatures under 15 U.S.C. 7001
In providing states with the opportunity to implement electronic odometer disclosure systems until the effective date of this final rule, FAST Act amendments do not alter existing statutory odometer disclosure requirements or their intent. Effective odometer disclosure systems are essential to protecting consumers from odometer fraud and must reduce or eliminate opportunities for such fraud to the greatest practicable extent. Federal and state governments have an interest in preventing such fraud.
This final rule and NHTSA's prior responses to state petitions for approval of alternative disclosure schemes (discussed below) contain guidance on potential strengths and weaknesses of electronic odometer disclosure schemes.
In 1972, Congress enacted the Motor Vehicle Information and Cost Savings Act (Cost Savings Act) to, among other things, protect purchasers of motor vehicles from odometer fraud.
To assist purchasers in knowing the true mileage of a motor vehicle, Section 408 of the Cost Savings Act required the transferor of a motor vehicle to provide written disclosure to the transferee at the time of the transfer of ownership of the vehicle.
Despite these protections, there were shortcomings in odometer provisions of the Cost Savings Act. In some states, the odometer disclosure statement was not on the title; instead, it was a separate document that could easily be altered or discarded and did not travel with the title. Titles were not on tamper-proof paper, and mileage disclosures could be easily altered. Problems were compounded by title washing through jurisdictions with ineffective controls. In addition, there were considerable misstatements of mileage on vehicles that had formerly been leased vehicles, as well as on used vehicles sold at wholesale auctions.
In 1986, Congress enacted the Truth in Mileage Act (TIMA), which added provisions to odometer provisions of the Cost Savings Act.
Among other requirements, TIMA precluded the licensing of vehicles unless several requirements were met by the transferee and transferor. Titles must be printed by a secure printing process or other secure process and must indicate the mileage and contain space for the transferee to disclose the mileage in a subsequent transfer. The transferee, when applying for a title, is required to provide the transferor's (seller's) title, and if that title contains a space for the
As to lease vehicles, TIMA stated NHTSA must publish rules requiring the lessor of vehicles to advise its lessee(s) that the lessee is required by law to disclose the vehicle's mileage to the lessor upon the lessor's transfer of ownership of the vehicle. Additionally, TIMA required auction companies establish and maintain records on vehicles sold at the auction, including the name of the most recent owner of the vehicle, the name of the buyer, the vehicle identification number, and the odometer reading on the date the auction took possession of the vehicle.
As amended by TIMA, section 408(f) (1) of the Cost Savings Act provided its provisions on mileage statements for licensing of vehicles (and rules involving leased vehicles) apply in a state, unless the state has in effect alternate motor vehicle mileage disclosure requirements approved by the Secretary. Section 408(f)(2) stated “[t]he Secretary shall approve alternate motor vehicle mileage disclosure requirements submitted by a State unless the Secretary determines that such requirements are not consistent with the purpose of the disclosure required by subsection (d) or (e), as the case may be.”
In 1988, Congress amended section 408(d) of the Cost Savings Act to permit the use of a secure power of attorney in circumstances where the title was held by a lienholder. The Secretary was required to publish a rule to implement the provision.
Because of the 1994 recodification of various laws pertaining to the DOT, the Cost Savings Act, as amended by TIMA, was repealed, reenacted, and recodified without substantive change.
The implementing regulations for the odometer provisions of the Cost Savings Act, as amended, are found in part 580 of title 49 of the Code of Federal Regulations (CFR). These regulations establish minimum requirements for odometer disclosure, the form of certain documents employed in disclosures, and the security of title documents and power of attorney forms. The regulations also set rules for transactions involving leased vehicles, set recordkeeping requirements including those for auctions, and authorize the use of powers of attorney in limited circumstances. Additionally, part 580 contains provisions exempting certain classes of vehicles from disclosure regulations and provides a petition process by which a state may obtain approval of alternate disclosure requirements. The following paragraphs summarize important aspects of the regulations.
Odometer disclosures must be made on a secure title, reassignment document, or power of attorney when a vehicle is transferred to a new owner. Section 580.5(c) requires a transferor to sign, and to print his/her name on an odometer disclosure statement with the following information: (1) The odometer reading at the time of transfer (not to include tenths of miles); (2) the date of transfer; (3) the transferor's name and current address; (4) the transferee's name and current address; and (5) the identity of the vehicle, including its make, model, year, body type, and VIN. The transferor must also, under § 580.5(e), certify whether the odometer reading reflects the vehicle's actual mileage, disclose whether the odometer reading reflects mileage in excess of the odometer's mechanical limit or, if the odometer does not reflect the actual mileage, must state the odometer reading should not be relied on. The transferee must acknowledge the reading by signing the statement. Each title, at the time it is issued to the transferee, must contain the mileage disclosed by the transferor.
To ensure vehicles subject to leases of four months or more have accurate odometer readings executed on titles at the time of transfer, § 580.7(a) requires lessors to provide written notice to the lessee of the lessee's obligation to disclose the mileage of the leased vehicle and penalties for failure to disclose the information. Before a change in ownership of a leased vehicle, lessees are required by § 580.7(b) to provide disclosures comparable to those required by § 580.5(c) and (e), noted above, to the lessor along with the date the lessor notified the lessee of disclosure requirements. Additionally, the lessor must state the date the lessor received the lessee's completed disclosure statement and must sign it. Under § 580.7(d) a lessor transferring ownership of a vehicle (without obtaining possession) may indicate the mileage disclosed by the lessee on the vehicle's title unless the lessor has reason to believe the lessee's disclosure is inaccurate.
When a title is physically held by a lienholder or has been lost, § 580.13(a) allows a transferor to give the transferee a power of attorney to execute the mileage disclosure on the title once it is obtained by the transferee. Section 580.13(b) and (d) provide that the transferor must disclose information identical to that required by § 580.5(c) and (e) on part A of the secure power of attorney form. The transferee is required to sign the power of attorney form part A and print his/her name.
After part A of the power of attorney form has been used, part B may be executed when a vehicle addressed on part A is resold. Part B of the secure power of attorney form allows a subsequent transferee to give a power of attorney to his transferor to review the title and any reassignment documents for mileage discrepancies, and if no discrepancies are found, to acknowledge disclosure on the title, while maintaining the integrity of the first seller's disclosure. The disclosure required to be made by the transferor to the transferee for this transaction on part B of the power of attorney form tracks information required to be made by the transferor to the transferee on the title when ownership of a vehicle is transferred on a title under 49 CFR 580.5. Among other things, the power of attorney must contain a space for the transferor to disclose the mileage to the transferee and sign and date the form, and a space for the transferee to sign and date the form.
To ensure disclosures made through a power of attorney are accurate, § 580.15 requires the person exercising the power of attorney to certify, on part C of the form, that disclosures made on a title or
Titles, reassignment documents, and the power of attorney form must be protected against counterfeiting and tampering by a secure printing process or other secure process (§ 580.4). These titles, reassignment documents, and powers of attorney must contain a statement referring to federal odometer law and a warning that failure to complete the form or providing false information may result in fines or imprisonment.
Part 580 establishes minimum requirements for record retention, ensuring a paper trail sufficient to support detection and prosecution of odometer fraud. Section 580.8(a) requires motor vehicle dealers and distributors, who are required to issue an odometer disclosure, to retain copies of each odometer statement they issue and receive for five years. Lessors of leased vehicles must retain the odometer statement they receive from their lessee for five years from the date they transfer ownership of the leased vehicle (§ 580.8(b)). If a power of attorney authorized by §§ 580.13 and/or 580.14 has been used, dealers must retain copies of the document for five years (§ 580.8(c)). Section 580.9 requires auction companies to retain the name of the most recent owner on the date the auction took possession of the motor vehicle, the name of the buyer, the vehicle identification number, and the odometer reading on the date the auction company took possession of the motor vehicle for five years from the date of sale. States are required, under § 580.13(f) to retain the original copy of the power of attorney authorized by § 580.13(a) or (b) and the title for a period of three years or a time period equal to the state's titling record retention period, whichever is shorter.
Other sections of part 580 establish a petition process by which states may seek assistance in revising their odometer laws (§ 580.10), may seek approval of alternative odometer disclosure schemes (§ 580.11), and establish exemptions from the disclosure requirements of §§ 580.5 and 580.7 (§ 580.17). Exemptions in 580.17 apply to transfers or leases for: (1) Vehicles with a Gross Vehicle Weight Rating (GVWR) over 16,000 pounds; (2) vehicles that are not self-propelled; (3) vehicles manufactured in a model year beginning 10 years before January 1 of the calendar year in which the transfer occurs; (4) certain vehicles sold by the manufacturer to any agency of the United States; and (5) a new vehicle prior to its first transfer for purposes other than resale.
The Cost Savings Act, as amended by TIMA in 1986, contains a specific provision on approval of state alternative odometer disclosure programs. Subsection 408(f)(2) of the Cost Savings Act (now recodified at 49 U.S.C. 32705(d)) provides NHTSA shall approve alternate motor vehicle mileage disclosure requirements submitted by a state unless NHTSA determines such requirements are not consistent with the purpose of the disclosure required by subsection (d) or (e) as the case may be. (Subsections 408(d), (e) of the Costs Savings Act were recodified to 49 U.S.C. 32705(b) and (c).)
Virginia, Wisconsin, Florida, New York, Texas, and Arizona filed petitions with NHTSA seeking approval of electronic alternative odometer programs under 49 U.S.C. 32705(d)). NHTSA has approved, in whole or in part, five of these six petitions and not taken final action on the Arizona petition, which was made moot by the passage of section 24111 of the FAST Act and Arizona's adoption of a disclosure system under that provision. Review of the systems proposed in these petitions and the terms of NHTSA's actions in response to them, illustrates the variations in schemes between jurisdictions and the concerns raised by electronic odometer disclosure.
Petitions filed by three states, Virginia, Texas, and Wisconsin, shared certain characteristics. In each case, the proposed alternative odometer disclosure schemes applied only to intrastate transactions. Each of the three proposals also relied on multi-factor authentication to ensure the identity of persons executing the odometer disclosures. All three proposals relied on substituting electronic versions of the paper odometer disclosure form by maintaining the electronic form on state-controlled systems. These systems also held data elements comprising the electronic title.
Virginia petitioned NHTSA in December 2006 seeking approval of electronic odometer disclosure for intrastate transfers of vehicles not subject to liens. Virginia proposed using a paperless system where users would enter the information and attestations found on paper odometer disclosures into a state electronic system. The petition stated unique personal identification numbers (PIN) and unique customer numbers sent by conventional U.S. mail would be used with the customer's date of birth (DOB) to create a verified account and signature. Dealer users would provide lists of employees authorized to make disclosures, and these individuals would get PINs by conventional mail to verify their identity. In dealer sales, the employee PIN and a dealer number would be used. Disclosures would be made in the same way a paper disclosure would be made. The seller or transferor would fill out an electronic form identical to the paper form and sign it electronically. The buyer or transferee would examine the disclosure and either accept it or reject it. Once accepted, the disclosure would be linked to the electronic title, and the transferor would be instructed to mail any paper title to the state.
A June 2008 petition by Texas sought approval of alternative odometer disclosure requirements for intrastate transactions between residents transferring vehicles not subject to liens. Texas proposed to eliminate paper titles (except as requested), create electronic titles and require in-state vehicle transfers to be made electronically. Users, who would have to be Texas residents holding a valid state identification credential, would be verified by matching four personal data elements and two forms of identification against a state database. Odometer mileage disclosures would be made by requiring both parties to separately log into a secure website, make required disclosures and verification of the mileage, and accept or reject the transaction. The seller or transferor would then mail the paper title to the state for destruction. The title and odometer disclosure would remain as an electronic record, and the transferee could receive a secure paper title on request.
Wisconsin filed a petition in September 2009 proposing an electronic odometer disclosure scheme limited to intrastate transactions where at least one party would be a motor vehicle dealer. Identity verification would be based on customers entering a minimum of three personal identifiers—name, address,
Finding that the Virginia scheme would properly verify user identities, provide security equivalent to the paper system, and create an adequate system of records, NHTSA granted Virginia's request on January 7, 2009 (74 FR 643). NHTSA granted the Texas petition on April 22, 2010 (75 FR 20925) after that state clarified the Texas system allowed transferees to obtain a paper copy of the title meeting TIMA, required dealers to retain copies of odometer disclosures, and required disclosure of the brand (the brand states whether the odometer reflects the actual mileage, reflects mileage in excess of the designated odometer limit or differs from the actual mileage and is not reliable.)
Petitions filed by two other states, Florida and New York, differed from other petitions as systems proposed relied, to differing degrees, on the use of paper forms for executing the odometer disclosures. These paper forms, which were not titles, reassignment documents or a power of attorney specified under part 580, were employed to transmit information either before entry into an electronic system or to facilitate interstate transactions. Because paper documents are employed in conjunction with an electronic system, these odometer disclosure schemes can be referred to as “hybrid” systems because of their reliance on paper and electronic information storage.
In December 2009, Florida proposed a hybrid electronic disclosure system in December 2009 wherein the actual data entry into the state system would be made by authorized tag agents using data terminals. For private sales, authorized tag agents required transferors and transferees to fill out odometer disclosures on paper forms. These paper forms would be executed by both parties at the tag agent's facility after each had verified their identity to the tag agent. The tag agent would enter the data into Florida's system and create an electronic title for the transferee, or upon request, provide the transferee with a paper title. For dealer transactions, Florida proposed transferors with e-title would complete a secure reassignment form with odometer disclosure. When the dealer transferred that vehicle to another transferee, both parties would complete another secure reassignment form with an odometer disclosure. The dealer would take both secure reassignment forms to a tag agency. The tag agent would enter the disclosures, and the data needed to create an electronic title or provide the transferor with the option of obtaining a paper title. Similarly, a lessee of a leased vehicle with an e-title would bring the vehicle to a dealership and make the odometer disclosure on a secure physical document. The lessor would then sign a secure physical power of attorney to the dealer authorizing the dealer to execute the odometer disclosure on its behalf. The dealer would then sign a physical secure reassignment form agreeing with the odometer disclosure. When the dealer sold the vehicle to another buyer, the dealer would take the various physical documents (bill of sale, reassignment document, and power of attorney) to the tag agency, where the tag agent would enter the required data and either create an electronic title in Florida's system or have a paper title provided for the buyer.
New York filed a petition with NHTSA in November 2010, seeking conversion of the existing paper process for dealer transactions to an electronic one. A transferor's odometer disclosure would be made on the title and then recorded in New York's system by a specific dealer employee whose identity had been verified. If that dealer sold a vehicle to another licensed New York dealer, the selling dealer would enter the current odometer reading, vehicle and seller and purchaser information. The purchasing dealer would subsequently sign on, review the selling dealer's odometer disclosure, and other data and accept or reject the transaction. Subsequent New York dealer transfers would be recorded in the same manner.
New York proposed that when a vehicle owned by a New York dealer is sold to a retail purchaser, salvage dealer, out-of-state buyer, or other non-New York dealer purchaser, the selling dealer would access its system, enter odometer and other information, including the seller and purchaser. A two-part sales receipt/odometer statement would be created, and if correct, would be accepted by the buyer. The dealer would then print a two-part sales receipt with a disclosure statement on each part. The dealer would retain one part, and the purchaser would be given the other, along with the original title acquired by the dealer upon vehicle purchase.
NHTSA granted the Florida petition in part and denied it in part, approving provisions for private party transactions but denying proposed terms for dealer and leased vehicle transactions. 77 FR 36935 (June 20, 2012). Among other things, NHTSA observed dealer transactions relied on odometer disclosures being made on documents other than the title itself. This, in the agency's view, is inconsistent with TIMA's command that disclosures be made on the title and not on a separate document. Further, the Florida dealer transaction scheme allowed issuance of new registrations after submission of a disclosure statement on a physical reassignment document rather than on the title itself, thereby violating the statutory requirement that a title with an odometer statement must be submitted prior to registering the vehicle. Florida's proposed requirements for leased vehicles were denied on similar grounds because of the numerous times disclosures had to be made on documents other than the title that did not meet security and content thresholds. Finally, the use of a power of attorney, where the lessor had access to the title, was inconsistent with TIMA.
NHTSA's initial determination denied New York's petition because it used a non-secure receipt for odometer disclosure in transfers between New York dealers and out-of-state buyers and was, therefore, inconsistent with federal odometer law. 76 FR 65487, 65491 (Oct. 21, 2011). New York subsequently amended its proposal by replacing the non-secure document with a secure state-issued paper, New York State MV-50 (Retail Certificate of Sale) form. The result of this change was a consumer purchasing a vehicle from a dealer would then receive the original title and odometer statement executed by the owner, who sold the vehicle to the dealer, and the secure MV-50 form with
Processing foregoing petitions illuminated concerns relevant to this final rule. Any electronic odometer disclosure system must follow TIMA's command that odometer disclosures must be made on the title itself, the electronic equivalent of that title, or a selectively narrow set of tightly controlled secure documents. While jurisdictions should be accorded a degree of flexibility in designing and executing electronic titling and odometer disclosure schemes, an electronic odometer disclosure system should minimize or eliminate odometer disclosures on documents other than the title. Other concerns include methods of transmitting secure paper documents, the means for verifying the identity of transferors and transferees, the potential for the simultaneous existence of paper and electronic titles and the problems posed by interstate transactions between states with traditional and electric systems.
NHTSA's experience with petitions filed by Virginia, Texas, Florida, New York, and others demonstrates states choose to create a paperless system where all parties to a transaction make direct entries into the system or may employ a “hybrid” scheme where paper forms are employed as part of the process. As discussed below, some commenters responding to the NPRM believed amendments proposed by NHTSA did not adequately address the characteristics of such hybrid systems. An additional concern raised by commenters, particularly states that had previously had alternative odometer disclosure systems approved through the petition process, was the applicability of provisions in the final rule to those systems. The agency believes provisions of this final rule are sufficiently flexible to minimize potential conflicts with terms of our prior approvals of alternative odometer disclosure schemes.
The NPRM was published in the
Although Congress had directed that NHTSA promulgate regulations allowing electronic odometer disclosures and, through the FAST Act amendment discussed above, facilitated state adoption of electronic odometer disclosure systems until the effective date of this final rule, few jurisdictions have implemented schemes for electronic titles and electronic odometer disclosure, either in whole or in part. Given the nascent state of electronic titling and odometer disclosures, as well as variations in existing title systems in states and territories, the NPRM asked for comments on how prescriptive NHTSA's approach should be. While more prescriptive requirements might better protect vehicle buyers and force a degree of uniformity in future electronic systems, such an approach by NHTSA could limit or hinder adoption of electronic titling and odometer disclosure system. Additionally, a highly prescriptive approach could be interpreted to be inconsistent with the direction in MAP-21 to promulgate regulations that simply permit electronic disclosures. The foregoing concerns prompted NHTSA to specifically request comments in the NPRM on whether it should adopt a minimalist approach or a more prescriptive set of rules.
NHTSA chose to propose modifications to the existing structure of part 580 to accommodate electronic odometer disclosure schemes. Accordingly, the NPRM sought to add new definitions in part 580.3 for the terms “Electronic Document,” “Physical Document,” and “Sign or Signature.” As proposed, “Electronic Document” would mean “a title, reassignment document or power of attorney that is maintained in electronic form by a state, territory or possession that meets all the requirements of this part.” The NPRM proposed defining a “Physical Document” as “a title, reassignment document or power of attorney printed on paper that meets all the requirements of this part.” The proposed definition of “Sign or Signature” encompassed both hand written and electronic signatures and, for the electronic signature, also specified that a valid electronic signature must incorporate an identity authentication scheme equivalent to or greater than a NIST Level 3 system. This definition also specified a valid electronic signature must be made by the specific individual whose identity had been verified, regardless of whether the person was signing as in individual or as a representative of a business. The NPRM specifically requested comments on the propriety and appropriateness of these proposed definitions. In addition, the NPRM asked for comments on implementation of identity verification for transferors and transferees in electronic transactions, including what level of NIST verification should be appropriate, whether car dealers should provide secure computing services, and what security measures should be mandatory for such services.
In contrast to a written signature, which through handwriting analysis can be used to identify an individual even in the event of forgery, an electronic signature is, without sufficient verification and other safeguards, anonymous. Because of this, NHTSA proposed that a valid electronic signature must be made by an individual. The NPRM also asked for comments on whether any other requirements are necessary to ensure investigators can back trace an electronic “signature” to identify the individual and/or computer used in the electronic equivalent of a paper trail or whether the proposed requirements could be used to identify individuals making unauthorized alterations to disclosure statements.
Consistent with its approach of modifying existing provisions of part 580 to allow electronic odometer disclosures, NHTSA also proposed amending § 580.4, which governed security features of printed forms, by creating a new paragraph (a) for paper documents and new paragraph (b) for
The NPRM also addressed a bedrock concern of any electronic system creating and maintaining records having financial import—system security. Rather than attempt to specify security requirements, the NPRM explained the agency made a tentative determination that such an effort would be inappropriate given the comparatively slow pace of rulemaking in comparison to the rapidly evolving and changing landscape of cyber security. Just as software and hardware are constantly evolving and improving, cyber-attacks and efforts to undermine the security of electronic data systems are also changing rapidly and frequently. Moreover, the NPRM noted potential risks to property interests and commerce presented by insecure vehicle titling and odometer disclosure systems would be addressed by the jurisdictions creating these systems. The jurisdictions doing so would be better positioned to assess security risks and craft appropriate responses. The NPRM nonetheless requested comments on whether NHTSA should establish minimum security requirements, including hardware and natural disaster specifications, and if such security requirements should be modeled on the Federal Information Security Management Act (FISMA) framework.
Section 580.5 of part 580 dictates the content and manner of odometer disclosure. The NPRM proposed adding the phrase “whether a physical or electronic document” in § 580.5(a) so the disclosure requirements specified in § 580.5 would apply to paper and electronic transactions. Similarly, the NPRM also proposed amending § 580.5(c), governing the specific disclosures that must be made when transferring title, by adding the phrase “physical document” in instances of paper title transfers and “electronic form incorporated into the electronic title.” to § 580.5(c) for instances of electronic title transfers. The agency also added a requirement that disclosures in the case of electronic titles must be on an electronic form incorporated into that title, that the electronic disclosure must be incorporated into the electronic title, and, in jurisdictions with electronic titles, reassignment documents could not be used in lieu of making the odometer disclosure electronically. The agency also asked for comments on the proposal that disclosures be made on an electronic form incorporated into the electronic title.
Under § 580.5(d), paper forms used to make odometer disclosures must contain certain legal notices and warnings intended to ensure those executing the forms are aware of their responsibilities and potential liability when doing so. The NPRM proposed extending these requirements to electronic disclosures transfers by amending § 580.5(d), specifying that in instances of electronic transfer, the required information must be displayed on the screen, and acknowledged as understood by that party, before any signature can be applied to the transaction. NHTSA also proposed amending § 580.5(f), requiring transferees to print their name on the disclosure and return a copy to the transferor, to restrict its application to paper transactions only. Because § 580.5(f) also requires transferees to provide transferors with a copy of the executed disclosure statement, the agency also proposed electronic disclosure systems provide a means for parties involved with the transaction to access copies of the disclosure. Although this proposal expanded the paper requirement from making a copy available to one party to both parties, NHTSA believed the burden of making an electronic copy of the disclosure statement to both parties rather than one would be minimally burdensome. The NPRM sought specific comments on these proposed amendments.
Section 580.5(g) of part 580 addresses the situation in which a vehicle has not been titled or where the existing paper title does not have sufficient space for making an odometer disclosure. As explained in the NPRM, NHTSA tentatively believed this provision should only apply in jurisdictions where paper titles and odometer disclosures are used. The agency thought any electronic titling system would have the capability to accept disclosures for multiple transactions and could be configured to accept an odometer disclosure immediately prior to creation of the first electronic title. Accordingly, the NPRM proposed limiting application of § 580.5(g) to transactions employing paper documents in jurisdictions without electronic title systems. The NPRM asked for comments specifically addressing this proposal.
The NPRM also proposed adding a new § 580.6 to part 580 to create requirements resolving unique concerns posed by electronic odometer disclosures. To ensure systems creating and maintaining records provided a minimum level of security and certainty, the NPRM sought to add § 580.6(a)(1) requiring electronic records to be retained in a format that cannot be altered and, further, that indicates any attempts to alter it. As it is critical that parties to a transaction are who they claim to be for ownership and law enforcement purposes, the NPRM proposed in § 580.6(a)(2), a requirement that any electronic signature identify an individual. The section also proposed if an individual is acting in a business capacity or otherwise on behalf of any other individual or entity, that the business or entity also be identified as part of that unique electronic signature. Because the requirement to maintain or provide copies of paper documents exists in various places within part 580, the NPRM proposed accommodating these requirements in electronic disclosure systems by establishing, in § 580.6(a)(3), that any requirement in part 580 to disclose, issue, execute, return, notify, or otherwise provide information to another person is satisfied when a copy of the electronic disclosure or statement is electronically transmitted or otherwise electronically accessible to the party required to receive the disclosure. Although the NPRM noted NHTSA discouraged the continued use of paper documents in electronic disclosure jurisdictions, the agency proposed accommodating “hybrid” systems such as those seen in the Florida and New York petitions by creating § 580.6(a)(7) requiring that any physical documents used to make electronic disclosures comply with the security and other requirements applicable to paper documents in part 580.
The advent of electronic titles would not eliminate the demand for paper titles, particularly because paper titles are likely to be essential to completing interstate transactions between electronic and paper jurisdictions. Moreover, paper titles will need to be accounted for when electronic title systems are created. Since the
The agency also proposed several amendments to § 580.7, which governs odometer disclosures for leased vehicles. Leased vehicles present challenges to the ordinary scheme for odometer disclosures because lessors usually hold the title to the vehicle but seldom have physical control over it. When a vehicle lease is terminated, the lessee typically surrenders the vehicle to a dealer while the lessor is responsible for making the required odometer disclosures on the title. To facilitate transactions associated with terminating the lease, § 580.7(a) required lessors to provide lessee with a written notice explaining that the lessee must provide the lessor with an odometer disclosure statement and that failure to do so, or to do so in conformance with federal law, exposes them to criminal liability. Section 580.7(b) and (c) state lessees must execute an odometer disclosure statement with any transfer of ownership and provide this disclosure statement to the lessor. In turn, the lessor is required by § 580.7(d) to execute the disclosure statement on the vehicle title in conformance with the lessee's disclosure unless the lessor has reason to believe the lessee's disclosure is inaccurate. The NPRM proposed amending § 580.7(a) to allow lessors to provide notices to lessee electronically, proposed deletion of a printed name requirement for electronic odometer disclosures by lessees in § 580.7(b) and proposed adding a new § 580.7(e) stating an electronic system maintained by a lessor must meet the proposed security requirements in § 580.4(b). The NPRM also requested comments on whether leased vehicle electronic disclosures should be a required part of the electronic system established by a jurisdiction or are best developed by individual leasing companies.
Sections 580.8 and 580.9 include requirements for odometer disclosure record retention by motor vehicle dealers and distributors and by auction companies, respectively. Section 580.8(a) specifies dealers and distributors must retain a “Photostat, carbon copy or other facsimile copy of each odometer mileage statement which they issue and receive.” Under both sections, records must be stored for five years in a manner and method so they are accessible to NHTSA investigators and other law enforcement personnel. The records must also be stored so they are difficult or impossible to modify. The NPRM proposed adding requirements in a new § 580.8(d) and § 580.9 that electronic odometer disclosure records kept by motor vehicle dealers, distributors, and auction companies must be stored in a format that cannot be altered and that indicates any attempts to alter the document, consistent with the standards set forth in proposed § 580.4(b). NHTSA requested comment on whether this requirement would be sufficient to allow law enforcement to detect altered documents.
The agency also proposed modifications to the power of attorney provisions in § 580.13(a) and (b), to allow an individual with a vehicle titled in an electronic title state to use a power of attorney to sell a vehicle in a paper title state. This proposed expansion of the use of a power of attorney, in conjunction with the agency's view that the power of attorney provisions applicable to lost titles or titles held by lienholders would no longer be needed in electronic title jurisdictions, led the agency to propose adding the word “physical” in multiple places in §§ 580.13(f), 580.14(a), (e), and (f), and in 580.15(a) to restrict application of various provisions to paper title jurisdictions. The NPRM asked commenters to specifically address the need for the proposed power of attorney and if an electronic power of attorney would also be needed or feasible.
Because § 580.17(a)(3) exempts any vehicle, which is more than 10 years old from the odometer disclosure requirements and the average age of the United States vehicle fleet has been trending upward to 11.5 years, the NPRM proposed raising the exemption to 25 years. The NPRM also requested comments on whether the exemption should be eliminated.
Another group of amendments in the NPRM were proposed to correct address changes and typographical errors as well as removing obsolete provisions and providing redesignations needed to complete the final rule.
NHTSA received 28 comments in response to the NPRM. Six comments were filed by state motor vehicle departments: The Motor Vehicle Division of the Arizona Department of Transportation (Arizona), the California Department of Motor Vehicles (California), the Florida Department of Highway Safety and Motor Vehicles (Florida), the Oregon Driver and Motor Vehicle Services (Oregon), the Texas Department of Motor Vehicles (Texas), and the Virginia Department of Transportation (Virginia). State concerns were also addressed in comments from the American Association of Motor Vehicle Administrators (AAMVA). Dealer and auctioneer concerns were voiced by comments from the National Automobile Dealers Association (NADA), the National Independent Automobile Dealers Association (NIADA), the National Auto Auction Association (NAAA), the Ohio Automobile Dealers Association (OADA), Copart Inc. (Copart), Dealertrack Inc. (Dealertrack), and Insurance Auto Auctions Inc. (IAA). Several trade associations acting on behalf of lenders also submitted comments, including the National
Comments were also filed by insurance companies and insurance trade associations: Allstate Corporation (Allstate), the Property Casualty Insurers Association of America (PCIA), the American Insurance Association (AIA), Liberty Mutual (Liberty), and the National Association of Mutual Insurance Companies (NAMI). Other organizations, such as the Electronic Signature and Records Association (ESRA), the National Odometer and Title Fraud Enforcement Association (NOTFEA), and the National Salvage Vehicle Reporting Program (NSVRP) also filed comments. An individual, Thaddeus Lopatka, filed comments as well.
The commenters all favored regulatory changes that would allow states to implement electronic odometer disclosures as part of an electronic title system. The comments, however, differed in how this goal should be achieved. While some comments did not address the specifics of NHTSA's proposed amendments, others provided detailed analyses of the regulatory text contained in the NPRM. The comments also diverged on the extent to which NHTSA should exercise its regulatory authority. While some commenters urged NHTSA to leave as much as possible to the discretion of individual states, others felt the agency should compel creation of a national electronic title and odometer disclosure system by a specified date and impose penalties for non-compliance. The agency's proposed modification of the ten-year exemption was supported by most commenters and vociferously opposed by others. For commenters who specifically addressed the agency's proposed requirement that individual identities be established by NIST level 3 authentication, opposition was universal. Some commenters also voiced reservations about the structure of the proposed amendments, which, in their view, appeared to adopt an unduly narrow vision of how electronic odometer disclosure and electronic titling systems would function. For these commenters, NHTSA's proposal did not adequately address the potential adoption of hybrid systems employing a mixture of paper documents and electronic processes.
Two commenters, NADA and NAAA, suggested NHTSA issue an SNPRM prior to issuing a final rule while two, NAMIC and Texas, suggested NHTSA delay issuance of a final rule. NADA stated an SNPRM might be needed because of the complex array of potential motor vehicle transfers and potential variations between state systems that NHTSA needs to explore. NAAA stated an SNPRM might be required to explore the effect of any delays inherent in producing paper titles on exporting vehicles. Texas stated the proposals put forward in the NPRM indicated an apparent misunderstanding of current title processes and urged the agency to work with stakeholders to draft clearer, more meaningful language. NAMIC suggested delay so NHTSA could convene an assembly of state officials with the goal of forging a national electronic titling and odometer disclosure system.
NHTSA's March 25, 2016, NPRM stated the agency's view that the directive in MAP-21 to promulgate rules allowing electronic odometer disclosure was intended only to facilitate this change without imposing additional requirements on stakeholders (81 FR 16114). Nonetheless, the NPRM requested comments on whether the proposals therein should be extended to prevent, or limit, variation among the various state systems.
Comments submitted in response to this solicitation were generally split into two opposing positions. Several commenters urged creation of a uniform national electronic title and disclosure system while others urged the agency take a minimalist approach. Insurers favored the former approach while most states embraced the latter. The AIA contended allowing both paper and electronic disclosures complicated an already cumbersome process. AIA urged NHTSA to require electronic titling and odometer disclosure and warned the co-existence of electronic and paper title and disclosure systems will inevitably lead to fraud, title washing, errors, the inability to find the owner for recalls, and a lack of consumer understanding of the process.
The organization further urged NHTSA to establish a date certain by which all states must move to an electronic title and disclosure system and establish penalties for jurisdictions not meeting this deadline. NAMIC offered similar concerns about the potential complexity of co-existing paper and electronic systems as well as potential issues caused by incompatible state databases. As noted, NAMIC urged NHTSA to convene meetings with states and other stakeholders to formulate a plan for a more uniform electronic system. Although Texas adopted a position that NHTSA's rulemaking should not be prescriptive and should grant states as much leeway as possible in developing electronic title and odometer disclosure systems and encouraged NHTSA to explore the use of the U.S. Department of Justice's National Motor Vehicle Title Information System (NMVTIS) as a national system to facilitate the transfer of electronic titles. According to Texas, leveraging this existing system would assist with mitigating any costs associated with implementing a national electronic title transfer system and aid the rate of adoption while easing the implementation process.
Among state commenters, Virginia stood alone in supporting an expanded scope for the final rule. Virginia's concerns included the possibility of broad variations among state systems that would hinder interoperability and preclude the consistency required to allow consumers to conduct interstate transactions. While Virginia advocated rules to enforce consistency in security standards, its comments also decried the proposed NIST authentication and minimum dot per inch standards as well as the inability of traditional rulemaking to keep pace with rapidly changing technologies. Texas, California, and Florida offered comments stating the scope of the NPRM proposals should not be expanded. Texas stated each jurisdiction should be able to facilitate the electronic process for signatures as it determines appropriate. California contended that initially, each state must be able to implement an electronic odometer scheme within its own environment. Florida echoed this sentiment while opining that flexibility is needed as states first implement intrastate systems. AAMVA stated few states had developed electronic title systems, and even fewer could support fully electronic transactions or odometer disclosures. In AAMVA's view, imposing restrictive requirements before all states have had the opportunity to evaluate their existing systems and determine what such a transition could look like would be premature. ESRA's comments also endorsed a less restrictive regulatory approach stating the NPRM proposals were sufficiently broad to enhance the adoption of e-odometer and e-titling systems, and some level of variation would be acceptable if state systems are technologically neutral and promote interoperability.
NHTSA proposed several changes to definitions found within § 580.3 to accommodate electronic odometer disclosures within the existing framework of part 580. The NPRM proposed new definitions for the terms “Electronic Document,” “Physical Document,” and “Sign or Signature,” where an electronic document is a title, reassignment document, or power of attorney maintained in an electronic form; a physical document is a paper document as used prior to the advent of electronic disclosures, and sign or signature may either be a hand written signature or an electronic sound, symbol, or process using an authentication system to verify the signer's identity. As noted, the NPRM sought comments on the appropriateness of the proposed definitions.
One insurer, Liberty Mutual, four associations, AAMVA, NADA, CUCTX, and HCUA, and three states, California, Virginia, and Texas, offered comments in response to the definitions contained in the NPRM. California voiced concerns the definition of electronic document inappropriately inferred that electronic titles exist only as an electronic image of a paper document when an electronic title may only be a set of data elements maintained in a state database and not necessarily a form. AAMVA also stated “Electronic Record” would be more appropriate than “Electronic Document” and opined the proposed definition of “Electronic Document,” and “Physical Document,” should both refer to lease disclosures required by § 580.7. HCUA stated the proposed definition should clarify that a database record could serve as the title, disclosure, and audit trail. California further noted the proposed definition included “reassignment document” and “power of attorney,” which appears to conflict with proposed language for § 580.15, limiting powers of attorney to paper transactions, which California also opposed. California suggested Electronic Document should include or be restated as “titling record” and “paperless or electronic title.”
Virginia believed the definition of “sign or signature” is insufficient to address handwritten signatures on paper, handwritten signatures captioned electronically on a pen pad, electronic signatures for individuals, and electronic signatures for organizations verified through authentication measures. NADA offered similar comment, stating many of its dealer members used “pen pads” to capture signatures electronically. CUCTX noted the proposed definition of “Sign or Signature” applied only to electronic disclosure statements and should be expanded to include other electronic documents to capture powers of attorney as well.
Texas, which provided a “redline” version of part 580 along with its written comments, suggested the definitions proposed in the NPRM be expanded by adding a definition of “Access” encompassing the means of entering, displaying and modifying previously stored data, “Agent” as person appointed by a power of attorney or authorized to act for an entity, “Electronic title” for electronic titles incorporating an electronic reassignment format or process, “Jurisdiction” meaning a state, territory, or possession of the United States of America, “Mileage” meaning the actual distance a vehicle has traveled, “Printed Name” meaning either the clear and legible name on a physical document or an equivalent electronic record and “Sign or Signature” meaning either a traditional hand-written signature on a paper disclosure or an electronic sound symbol or process either incorporating an authentication process or performed before an authorized employee or agent of the jurisdiction. Liberty Mutual suggested adding a definition for an electronically signed document used specifically for title transfers for total loss vehicles.
NADA offered a similar comment to that provided by Texas and urged NHTSA to add a clarifying definition of the term “State” to read “any jurisdiction of the United States that issues motor vehicle titles, and the authorized agent(s) for any such jurisdiction.”
The definition of “Sign or Signature” proposed in the NPRM specified a valid electronic signature must identify a specific individual. This requirement stems from NHTSA's concern the comparative anonymity of an electronic signature to a written signature could frustrate identification of perpetrators of odometer fraud. This proposed requirement also appeared in § 580.6(a)(2) of the proposed amendments. The agency received many comments in response to this proposed requirement, and these comments are discussed below.
As proposed in the NPRM, the definition of “sign or signature” for an electronic document included an electronic sound, symbol, or process using an authentication system equivalent to or greater than Level 3 as described in NIST Special Publication 800-63-2,
Commenters addressing the issue uniformly opposed the proposed requirement that identity verification for electronic odometer disclosures must meet NIST Level 3. California noted NIST Level 3 authentication went beyond what is required for current paper transactions. In California's view, prescribing a NIST Level 3 identity authentication, which, among other things, could entail verification of a government ID, such as a driver license, and a financial or utility account, is unnecessary. California argued a Level 3 process would be burdensome and impractical, if not impossible, to implement. California contended the manner of identity verification be left to states at a level strong enough to reasonably identify the signing party and should not be set above NIST Level 2. Florida contended the cost and complexity of implementing a Level 3 system may prohibit many states from being able to provide electronic titles and odometer disclosures. Further, Florida argued a Level 2 solution would still provide greater security than the existing paper process. Virginia asked if use of pen pad for electronic transactions done in person before a state employee or agent—essentially replicating the present paper process—met NIST Level 2 requirements.
Texas, like California, argued against any NIST level requirement because jurisdictions should be responsible for the secure electronic process just as they are for the existing security provisions for paper documents. According to Texas, states have an interest in the security of vehicle and odometer transactions equal to that of the federal government and are more familiar with their jurisdiction's business needs and those of its customers. Should NHTSA specify a NIST level, Texas urged that it not be set above NIST Level 2. AAMVA noted the NPRM proposal did not distinguish between electronic signatures being made in the presence of a state employee or agent and remote
Other stakeholders also argued against NIST Level 3 authentication. Dealer groups OADA, NAAA, NIADA, and NADA stated obtaining and maintaining a NIST Level 3 system would require significant investment by states and dealers. This burden is not, in the view of these commenters, necessary when compared to the benefits achievable with a Level 2 system. These organizations also believe costs of Level 3 authentication would prevent states from attempting to employ electronic title and odometer disclosure systems. Lender associations and other entities also opposed the proposal to require Level 3 authentication. HCUA stated Level 2 authentication should be sufficient while the NTSF argued Level 3 authentication was not required. In NTSF's view, as supported by the ANSI X9. l 17-2012 “
The NPRM also requested specific comments on whether dealers should be required to provide secure computing services to transferors and transferees. NIADA and IAA responded, noting NHTSA should be mindful vehicle transfers are processed by many entities with different resources and are not limited to dealers. In the view of these commenters, imposing the foregoing requirement on a wide range of potential parties to a transfer would be unduly burdensome.
NHTSA also asked for comments on whether any requirements beyond those proposed in the NPRM would be needed or desired given the need for an odometer disclosure system to provide an adequate paper trail to identify the signer of an electronic odometer disclosure. Florida stated electronic odometer disclosure systems provide more security than the paper process. According to Florida, paper transactions do not involve verifying signatures and titles or other reassignment documents are often given to the transferee without being filled out so the incomplete forms are filled out by the transferee. Because electronic systems would require completeness and allow more frequent and accurate mileage reporting, Florida argued NHTSA should not adopt more stringent requirements in the Final Rule.
Prior to the issuance of this final rule, § 580.4 set forth the requirements for security features incorporated into paper documents employed to perform odometer disclosures. These security features are intended to prevent modification of existing disclosures and deter the use of counterfeit documents. The NPRM proposed amending this section through addition of new requirements for electronic documents or titles intended to provide the same level of security for electronic records as exists in secure paper documents. The proposed language would require electronic titles, powers of attorney, and reassignment documents to be maintained in a secure environment protecting the record for unauthorized modification. This environment would be part of a system that records when the document or record is created, when the odometer disclosures within are signed, when documents are accessed, and the date and time any attempt is made to alter the documents as well as any alterations made in the document.
The NPRM first sought comment on whether the proposal appropriately matched the security and authenticity requirement for electronic documents to the existing requirements, which apply to paper documents. While the NPRM contained a discussion outlining why the agency was not proposing specific security standards for these storage systems, NHTSA also asked for comment on whether the final rule should incorporate more specific security requirements for systems used to create and maintain electronic titles and odometer disclosures.
With the caveat that many commenters noted that the proposed language referred to an electronic “document” when reference to an electronic “record” would be more appropriate, this portion of the proposed rule enjoyed general support with many commenters strongly endorsing the agency's decision not to impose specific security standards for electronic title and odometer disclosure systems. NAAA and IAA noted the proposal required protection against unauthorized changes but did not address how entry errors are to be corrected. NTSF stated the requirement to track when records are accessed seemed to be unduly burdensome given the nature of the records involved. ESRA recommended NHTSA take an “agnostic” approach to electronic records storage by allowing states to store electronic data and documents in their secure data systems and to employ reasonable efforts to prevent such records from being altered.
Some commenters believed the proposal was too prescriptive. California noted paper documents should not be compared to an electronic process and that it would be unnecessary to prescribe anything more than maintaining electronic titling and odometer disclosure information in a secure system or environment. Texas stated the proposed requirements are more cumbersome than those for physical documents, and jurisdictions should be given the same latitude for electronic and physical documents. Virginia objected to the requirement that attempts to alter or modify records be tracked. Virginia noted the proposal did not distinguish between authorized and unauthorized modification and that any unauthorized attempt at access should result in denial of access and not creation of a record. AAMVA stated most systems track dates and times on who accessed certain records and asked NHTSA to exercise caution so requirements do not interrupt titling agency business.
Comments supporting NHTSA's decision to not adopt specific system security requirements were submitted by insurers, dealer associations, lender groups, states, and others. Allstate stated that states should have the flexibility to assess systems requirements that ensure information security. Dealer groups NADA, OADA, and NIADA agreed with NHTSA's approach, as did Dealertrack, stating that technology moved too rapidly for effective regulation by rules. NADA and NTSF opined that specific system security requirements would be counterproductive for the same reason. ESRA recommended only general security standards and safeguards be adopted to prevent obsolescence and to empower states adopt systems they determine are most appropriate. CUCTX
NHTSA proposed several changes to § 580.5,
Comments addressing this portion of the agency's proposal supported the proposed changes. These commenters nonetheless offered observations and corrections, which they believed would better reflect the characteristics of electronic odometer disclosure and electronic title systems and clarify the proposals made in the NPRM. The proposal's directive in 580.5(c) that an odometer disclosure be made on an “electronic form incorporated into the electronic title” led some commenters to observe this nomenclature was inconsistent with any form of electronic disclosure and electronic title system save those that relied on scanning images of documents and storing these documents electronically.
AAMVA observed NHTSA's approach seemed to transform a paper-based disclosure process into an electronic disclosure by simply scanning current documentation—the title, the reassignment, or the power of attorney. The organization stated any reliance on a physical document, whether scanned or not, does not constitute an electronic disclosure system and should not provide the basis for an electronic disclosure system. Instead, AAMVA noted, an electronic disclosure and title record would be data fields making up an electronic record. HCUA offered similar views, urging NHTSA to clarify that database records can be substituted for scanned images of paper titles by state DMVs. NTSF also stated it is important to note states maintain electronic title records as database records and not scanned images of paper titles. The organization contended the proposed rules wrongly indicated title and disclosure documents must exist as embedded replicas of the corresponding paper documents when the actual electronic record would be an actual secure electronic database record of the transaction, including the metadata supporting the authentication of the individual executing the signature, as well as a full audit trail of transactional data. ESRA offered similar comments about the nature of electronic titles and recommended replacing the term “form” with the term “statement” when referring to electronic disclosure documents, and using the term “record” instead of “form” when referring to electronic titles. Texas argued it is paramount that NHTSA recognizes what an electronic process is and allow latitude in their development.
Other comments focused more narrowly. California stated electronic and paper titles will only resemble each other to the extent they contain the same information. Florida and Virginia simply stated they supported the agency proposal to incorporate the odometer disclosure into the electronic title. Texas strongly supported requiring odometer disclosures to be made “on” the electronic title while noting it did not support allowing a separate “electronic” or physical reassignment apart from the electronic title. Because there would be unlimited “space” for mileage disclosure entries in an electronic title system, Texas contended a reassignment process that is not specifically attached to an electronic title should be prohibited. Arizona stated requirements in §§ 580.5(c) and 580.6(a)(7) regarding the use of physical documents for a transfer being conducted electronically appear to conflict and suggested the provisions in § 580.6(a)(7) take precedence with § 580.5(c) being reworded to eliminate the conflict.
The NPRM proposed amending § 580.5(d) to provide the same warnings and notices present on paper odometer disclosure forms also be presented to parties executing an electronic disclosure. As presented in the NPRM, the amendment stated, “the information specified in this paragraph shall be displayed, and acknowledged as understood by the party, prior to the execution of any electronic signatures.” Texas supported including the proposed statements and warnings but contended the electronic signature should be sufficient acknowledgement that statements were read and understood. Therefore, Texas argued against any additional acknowledgement such as a checkbox. IAA observed this language did not provide adequate guidance on the sequence in which the odometer disclosures would be executed and that if neither transferor nor transferee may sign until the acknowledgement by both, it would be difficult to envision the proper sequence of execution.
NHTSA also proposed amending § 580.5(f), which specified transferees receiving a paper odometer disclosure from a transferor must sign the disclosure statement, print their name, and return the signed copy to the transferor. The proposed amendment eliminated the requirement for a printed name in electronic transactions and stated electronic disclosure systems must provide a copy to the parties. With one exception, all commenters responding to this proposal supported elimination of the printed name requirement. California, Florida, Virginia, NADA, NTSF, and AAMVA all supported eliminating the printed name requirement in electronic disclosures, with most also stating identity authentication employed in these systems would make the printed name requirement superfluous. Texas, however, strongly opposed elimination of the printed name requirement, explaining a printed name would still be needed in electronic disclosures when an individual employee of a business executed the disclosure on behalf of their employer. California
An additional modification proposed in the NPRM sought to expand the provisions of § 580.5(g) to electronic systems. Section 580.5(g) addresses issues that may arise in sales when a brand-new vehicle has not yet been titled or when an existing title for a used vehicle does not have sufficient space to accommodate multiple disclosures. In such an instance, the section provided that a separate document could be used for the disclosure. To extend this section to electronic disclosures, the NPRM proposed that in jurisdictions with electronic title and odometer disclosure, the system shall provide a means for making the disclosure electronically and incorporating it into the electronic title when the title is created.
Commenters supported this proposal but noted potential difficulties in implementing it. Some commenters suggested states have the option of employing either a paper or an electronic system for these transactions, even where the jurisdiction provided an electronic title and odometer disclosure system. California and Virginia stated they agreed with the proposal. Florida generally supported the concept but observed the ability to use only an electronic means depended on whether the Manufacturer's Certificate of Origin (MCO) is available electronically or only on paper. According to Florida, if a jurisdiction maintains electronic title and odometer disclosure systems but the manufacturer has a paper MCO, the jurisdiction must have a way to capture signatures from this paper document into the electronic system. NADA voiced similar concerns and noted the uncertainty of electronic versions of required documents being available until electronic systems became universal. Texas did not support the requirement for a secure electronic process for these transactions since the paper system does not require use of a secure document, manufacturers control the form of the MCO, and NHTSA did not propose imposing requirements on manufacturers for the MCO.
Texas also suggested clarification to paragraph (g). Texas noted the words “or if the physical title does not contain a space for the information required” are no longer relevant because part 580 requires all issued titles to contain space for the required information. Additionally, Texas recommended the text specify when use of a separate reassignment document is permitted. However, Texas would support allowing (but not requiring) jurisdictions to employ an electronic process.
Section 580.6, previously reserved for future use, was employed by the NPRM as the vehicle for proposed new regulations establishing requirements for electronic odometer disclosures. These proposals sought to establish fundamental requirements for electronic odometer disclosure systems that would protect against odometer fraud while facilitating smooth and efficient transactions. The proposed regulations address recordkeeping requirements, access to electronic documents, identification of participants, conversion of paper records to electronic records, the potential for simultaneous electronic and paper titles, and the character of any paper documents employed as part of an electronic title system.
The NPRM proposed adding § 580.6(a)(1) requiring any electronic record be retained in a format that cannot be altered and, further, that indicates any attempts to alter it. Commenters addressing this proposal supported it, providing the ban on alterations was limited to unauthorized alterations. AAMVA supported NHTSA's intent to provide a mechanism to track
Subsection 580.6(a)(2) of the agency's proposal creates a requirement that any electronic signature identify an individual and, further, that if the individual is acting in a business capacity or otherwise on behalf of any other individual or entity, that the business or entity also be identified as part of that unique electronic signature. As explained in the NPRM, the agency believed this requirement is needed both to facilitate identity authentication and to create a record of the individual executing an electronic signature. Commenters voiced opposing views on this proposal. While states and some associations supported it, dealers and vehicle auction organizations were strongly against it. Lender groups, NTSF and HCUA, supported the proposal. AAMVA also supported the proposal, and ESRA stated the requirement represented a best practice. California and Florida offered support without elaboration while Virginia stated it supports signatures applying to an individual and not to an organization. Texas supported the requirement with the proviso that there be no specific requirements on how this is to be accomplished.
NADA stated it had concerns about the proposal for several reasons. The association noted transfers for odometer disclosure purposes do not involve transferees taking title to the vehicle when that transferee is a dealership, wholesaler, insurance company, auction, or a lessee. Therefore, NADA argues the rules must accommodate a process by which odometer disclosures are made on electronic documents without title transferring (reassignments). NADA also questioned why agents acting on behalf of licensed entities should have to sign as individuals if they use the unique identifiers issued to their licensed employer. NADA urged NHTSA to consider adopting two sets of electronic transaction requirements, one for licensed entities such as dealers, distributors, auctions, lessors, lenders, and their agents, and one for private individuals. IAA, a vehicle auction company, stated the proposed rule would, in its case, result in a single employee signing on behalf of a host of vehicle owners bringing their vehicles for sale.
According to IAA, adoption of this requirement would necessitate many thousands of unique electronic signatures, posing a huge burden on the auction company and states processing the signatures. As NADA did, IAA
The process of executing an odometer disclosure requires notices, warnings, and instructions to be read, information to be supplied by the transferor, acknowledgement and acceptance of the disclosure by the transferee, and, in paper transactions, a copy of the signed disclosure statement must be given to the transferor by the transferee. To enable the needed access to text and other information in electronic disclosure schemes, NHTSA proposed adding § 580.6(a)(3), stating any requirement in the regulations to disclose, issue, execute, return, notify, or otherwise provide information to another person is satisfied when a copy of the electronic disclosure or statement is electronically transmitted or otherwise electronically accessible to the party required to receive the disclosure. Two associations, AAMVA and ESRA, and two states, California and Virginia, commented on this specific proposal. AAMVA opposed the proposal, arguing the responsibility to provide odometer disclosure information resides with the transferee and transferor and should remain there. AAMVA also contended any notification requirements should be transaction-based rather than the process-based individual account method proposed by NHTSA. In AAMVA's view, the NHTSA proposal would impose additional technology requirements on states.
ESRA noted the federal Electronic Signatures in Global National Commerce Act (“ESIGN”) establishes how a consumer may request a paper copy of an electronic record. Arguably, therefore, precedence has been set for permitting vehicle owners to obtain paper copies of e-titling documents, including odometer disclosures, in any state e-titling system. California argued states should not be required to provide the access described, and Virginia stated it had no objections.
NHTSA explained in the NPRM that it expected implementation of electronic titling and odometer disclosure systems would occur slowly, and, for the foreseeable future, both paper and electronic title and disclosure systems would coexist. As evidenced by the petitions for approval filed with the agency, individual states are not likely to shift their entire titling and odometer disclosure systems from paper to electronic systems at one time, and it is inevitable that interstate vehicle sales will involve vehicles moving from one type of jurisdiction to another. The NRPM proposed adding two sections to 580.6 to address the issues posed by the co-existence of paper and electronic systems. Section 580.6(a)(4) proposed requiring that a prior paper title and odometer disclosure be copied electronically for retention by the electronic system state and that the paper document(s) be destroyed at the time they are converted to electronic documents. Further, the electronic copy of the paper title would be retained in a system allowing its retrieval for five years. Section 580.6(a)(6) proposed that states maintaining an electronic title and odometer disclosure system shall retain the capacity to issue physical titles meeting all the requirements of this part. Once a physical title is created by a state with an electronic title and odometer disclosure statement system, the electronic record must indicate a physical title has been issued and the electronic title and disclosure statement have been superseded by the physical title as the official title.
The proposal further provided that electronic title and odometer disclosure systems shall record the date on which the physical title was issued and record the identity of the recipient of the physical title as well as the owner(s) named on the physical title. Two commenters, PCI and ESRA, supported these proposals without substantive comment. AAMVA noted that use of physical documents should be strongly discouraged in an electronic disclosure jurisdiction, but exchanging electronic and paper title records will be necessary. According to AAMVA, an active electronic title record and an active paper title cannot coexist. However, AAMVA noted jurisdictions cannot reliably ensure the destruction of existing physical documents. These paper titles can be invalidated and the record superseded (as is current practice), but the new jurisdiction of record has no control over whether a transferor or transferee destroys the document. AAMVA also stated that because states are currently required to perform a title check prior to title transactions to determine if they have the most current title issued, states already have a process in place to validate that they are not dealing with an out-of-date or superseding title.
NADA concurred in the need for a process to convert “official” e-odometer records to “official” paper records and that only state or their authorized agents should be allowed to do so. In NADA's view, records of such conversions should be retained. Florida stated the proposed rules mirror its current practices as it scans and stores paper titles electronically and converts e-titles to paper for various reasons. According to Florida, it presently stores the history of title conversions from one form to another and invalidates the inactive title while paper titles are printed by Florida or an authorized entity. Florida, nonetheless, requested NHTSA not dictate that only states can print titles in the event future developments allow for other means of producing these secure documents. Florida also noted it would be difficult for states to ensure paper titles are destroyed after conversion to electronic titles and suggested that the rule provide that a prior physical title be destroyed or otherwise rendered void. California noted its procedure for converting paper titles to electronic calls for the paper title to be scanned and stored, and the original is destroyed. However, California felt the five-year storage requirement proposed in § 580.6(a)(4) is burdensome and suggested a four-year requirement. Virginia supported the proposals without substantive comment while Texas also stated the proposals mirrored its current practice. However, Texas also noted jurisdictions cannot control the submission of physical documents and would have to prevent issuance of title until such time the documents were surrendered to comply with the proposals.
An individual providing comments, Lopatka, stated NHTSA should alternatively consider adopting a system by which individual titleholders may create official physical copies of their own records from the electronic system. Mr. Lopatka conceded that allowing individuals to print their own records from the electronic system might reduce the level of security associated with the transaction to some degree but that
Based in part on its experience in processing petitions for approval of alternative disclosure schemes, NHTSA also proposed a new § 580.6(a)(5) giving jurisdictions with electronic title and odometer disclosure systems the option of providing vehicle owners with a paper record of ownership, including odometer disclosure information, so long as the document clearly indicates it is not an official title or odometer disclosure for that vehicle. Almost all commenters supported this proposal provided the document issued could not be employed as a counterfeit title. ESRA noted providing a non-negotiable copy of a paper title is a standard practice in some states supporting electronic titling programs today. NADA concurred with the proposal, recognizing that some dealership customers may wish to be provided with paper printouts. NTSF supported the proposal as this practice is currently used in some states with electronic lien and title programs but stated it should not be required. California and Florida also agreed with the proposal if it remains permissive. Virginia opposed using the language “paper record of ownership” because of potential fraud and suggested the term “title receipt.” Texas also supported states having this option provided issuing such a document was discretionary. Lopatka argued against allowing states to provide an unofficial ownership document, stating that merely requiring clear disclosure that the physical copy is an unofficial record may be insufficient to prevent this fraud and abuse.
The agency's NPRM observed electronic title and odometer disclosure systems have the potential to reduce opportunities for odometer fraud by eliminating or reducing the use of paper documents in vehicle transfers. Nonetheless, the agency's experience in processing petitions seeking approval of alternative odometer disclosure schemes demonstrated states may choose to implement electronic title and odometer disclosure systems in ways that will still require the limited use of paper documents. To ensure the security of transactions employing such documents, the NPRM proposed a new section, § 580.6(a)(7), requiring any physical documents used to make odometer disclosures for entry into and electronic title and odometer disclosure system to comply with the existing requirements of part 580. AAMVA agreed to the extent that continued use of physical documents is necessary in an electronic system, any physical documents used must comply with regulatory requirements. NADA did not object to the proposal while California supported it without substantive comment. Arizona observed the requirements in the proposed §§ 580.5(c) and 580.6(a)(7) appeared to conflict and suggested that § 580.6(a)(7) take precedence and § 580.5(c) be reworded to eliminate the conflict. Texas stated that it fully supported this proposal, particularly as it would apply to powers of attorney but encouraged NHTSA to review other sections of its proposed rules because the agency believes other sections may imply such a scenario is not permissible.
Another issue addressed in the NPRM is the need to ensure odometer disclosure records converted from paper to an electronic form do not lose their value in that process. The NPRM therefore proposed such a conversion must maintain and preserve the security features in the document so alterations or modifications can be detected in the electronic version. The proposal, found in § 580.6(a)(8), also required that scanning be made in color at a resolution of 600 dpi.
Comments received in response to this proposal were unanimously opposed to the requirement that scanning be conducted at 600 dpi, and some commenters noted that scanning or imaging need not be in color. Dealertrack stated that a 600 dpi and color scanning requirement are well beyond current industry standards and should be reconsidered. NADA opposed the proposal as unduly burdensome on states and their agents. In NADA's view, NHTSA should adopt a standard that requires no more than a black and white scan of 300 dpi PDF, TIFF, or equivalent. OADA recommended NHSTA not impose any minimum technological standards and instead leave that to the discretion of the individual state motor vehicle administrators. AAMVA contended a 600-dpi scan is excessive, and the NPRM provides no clear evidence or case study to support a high-resolution standard. According to AAMVA, a 600-dpi resolution unnecessarily increases the file size to the point that storage and transmission of title histories sent via email become overly expensive and burdensome. This burden, AAMVA's view, provides no meaningful benefit as documents are but one part of establishing an odometer fraud case.
ESRA stated NHTSA should take a technology and standard-neutral position and allow states to choose reasonable standards. NTSF recommended NHTSA abandon scanning and resolution requirements because of variations in document and font sizes among states. In NTSF's view, states already have appropriate scanning resolution requirements, and NHTSA should leave this issue to state regulation. Arizona stated scanning documents at the NHTSA proposed resolution would adversely affect system performance and impose data storage costs and recommended states retain the ability to balance between system performance and scanned image quality. In Arizona's view, any requirement should be limited to requiring detail sufficient to preserve the features of the original document. California also strongly disagreed with the proposal, contending the standard be left to states and not set above 200 dpi in black and white. Florida echoed the comments of Arizona and California, citing greatly increased storage, transmission, and scanning costs.
According to Florida, color scans are not optimal, and NHTSA should allow states to set their own scanning standards. Texas observed jurisdictions have a strong interest in the accuracy of title records and bear the responsibility for assuring their validity. According to Texas, scanning at the proposed resolution in color produced a loss of visibility to security features, such as the “VOID” watermarks, which are apparent at lower dpi black and white scans. Texas also noted NHTSA did not impose a dpi requirement when approving its petition for alternative disclosure, and Texas had been employing a minimum 200 dpi standard with good results. Texas urged striking any dpi requirement and allowing jurisdictions to ensure the security of their process, particularly as the cost of scanning at the NHTSA-proposed resolution would be prohibitive. Virginia also opposed requiring 600 dpi color scans for cost and feasibility reasons. In Virginia's view, the regulation should not set a dpi standard but noted 300 dpi is reasonable. Lopatka urged the agency to more fully consider if states must scan physical titles with sufficient resolution to preserve security features or if preserving details such as the clarity of the titleholder's signature is sufficient.
The comments submitted by Texas also suggested adding two more subsections to 580.8. One of the subsections would provide an electronic means for completing a transaction where the transferor holds a physical title that has been lost. According to Texas, adding this paragraph, which would authorize the transferor to execute an electronic or physical power of attorney, would save costs and reduce fraud because it would eliminate the
Section 580.7 of part 580,
Commenters submitting responses to this portion of the NPRM rejected any suggestion that states or other jurisdictions be required to make any accommodation for leased vehicle disclosures. NTSF recommended this requirement be left up to states implementing electronic odometer system. According to NTSF, specific regulations to be implemented by states may be needed for electronic processing of the practice by which a lessor can obtain an odometer disclosure from the lessee. NIADA also stated electronic disclosures for leased vehicles should be left to states to develop in conjunction with the leasing companies operating in their jurisdiction. NADA did not address the role of states but supported the NHTSA proposal to enable electronic lessor-lessee notices and electronic lessee-lessor disclosures. NADA also stated minimum requirements for these end-of-lease situations should be established because leasing companies have been a significant source of odometer fraud. AAMVA opposed involving states in transactions made between the lessee and the lessor and that a state's only involvement should be to accept completed documents. AAMVA also noted the term “physical document” used in the proposed amendments could create confusion as the proposed definition of this term included a title, reassignment document, or power of attorney. California also indicated leased vehicle transactions should only involve lessors and lessees. Florida noted states were not involved in the leased vehicle disclosure process and should not be compelled to participate now.
As observed by AAMVA, Florida also questioned the use of term “physical document” in the proposed amendments. Texas found the proposal to be particularly concerning. Texas rejected any role for states in this process but observed the use of term “physical document” and language stating leased vehicle disclosure be made within an “electronic document” implicated states (and other title issuing jurisdictions) because of the specific definitions NHTSA proposed for these terms in the proposal. In addition, Texas recommended allowing the lessors to comply with this section without imposing the security requirements proposed by NHTSA as doing so would provide a disincentive to adopting an electronic process. Virginia, unlike any other commenter, supported including electronic disclosures of leased vehicles as part of the electronic system established by a jurisdiction but did not elaborate further.
Sections 580.8 and 580.9 include requirements for odometer disclosure record retention by motor vehicle dealers and distributors and by auction companies, respectively. The NPRM proposed to amend these requirements to include electronic copies or electronic documents as an acceptable form of record. The proposal also added a requirement in 580.8 that dealer electronic records must be retained in a format which cannot be altered and which indicates any attempts to alter it.
The comments addressing this proposal questioned whether extending the paper record requirements for dealers and auction houses would be necessary in jurisdictions with electronic title and odometer disclosure systems because these jurisdictions would be required to securely store electronic title and odometer disclosure data. Some commenters also questioned the accuracy of some of the terms proposed in the amendments. California stated the proposals are not needed because it maintains the titling record of a vehicle, to which only authorized access is permitted. Florida supported the proposed amendments but asked NHTSA to reconsider the storage or retention of paper records altogether given state recordkeeping. Texas argued that where jurisdictions facilitated the electronic odometer disclosures needed to create a new title, it would be burdensome for dealers to retain this information. According to Texas, dealers would have to extract the information or require the jurisdiction to provide it, and Texas perceived no benefit from this burden. Texas also contended the requirements for auctioneers proposed by NHTSA were overbroad, particularly in requiring secure storage as auctions only need to log transactions and not store odometer disclosures. Texas also observed that use of the term “physical document” in the proposal was inappropriate as that term is defined by the NPRM. In contrast to other states, Virginia stated records kept by motor vehicle dealers and distributors and by auction companies should be held to the same standard as records maintained by state vehicle administrators. As did California, Florida, and Texas, AAMVA stated the proposed requirements were unnecessary as states systems would provide the required security protocols and data. NADA noted the proposed language changes to § 508.8(a) should similarly be made to paragraphs (b) and (c). In NADA's view, NHTSA should clarify that where electronic records are kept in a centralized state system, the dealer record retention requirements are satisfied to the extent those records are reasonably accessible from their primary place of business. Allstate's comments stated record retention requirements are needed to support the detection and prosecution of odometer fraud but did not elaborate further.
Prior to this final rule, part 580 contained secure paper power of attorney provisions in §§ 508.13, 508.14, and 580.15 facilitating transactions in cases where the title was lost or physically held by the lienholder. These power of attorney provisions provide an exception to the rule that a single person cannot execute an odometer disclosure as both transferor and
The NPRM proposed amending § 580.13(a) and (b), to allow an individual with a vehicle titled in an electronic title state to use a power of attorney to sell a vehicle in a paper title state. Further, because the agency believed a power of attorney or reassignment documents would not be needed in electronic title jurisdictions, the NPRM proposed adding the word “physical” to certain phrases in § 580.13(f), § 580.14(a), (e), and (f), and in § 580.15(a). Along with proposing use of a power of attorney for interstate transfers from electronic to paper jurisdictions, NHTSA specifically requested comments on whether this power of attorney would be necessary in an electronic odometer system for intra-state transfers. The NPRM also sought comment on the feasibility of an electronic power or attorney as well as the implications of variations among states in implementing the power of attorney.
The comments submitted in response to this section in the NPRM identified several issues related to the proposed amendments. Several commenters observed the NPRM's view that a power of attorney would be useful in interstate transactions from an electronic title state to a paper state was flawed. Commenters also offered varying degrees of support for the continued use of the power of attorney in electronic title jurisdictions while others advocated both electronic and paper versions of the power of attorney in jurisdictions with electronic title and odometer systems. Other comments addressed the restriction that the power of attorney could be used only when a title is lost or physically held by a lienholder in the context of contemporary electronic title and lien schemes. Similarly, the status of an electronic title made unavailable because of technical failures led others to advocate expansion of the power of attorney provision in such an instance. Others advocated expanding the power of attorney provisions to facilitate vehicle financing.
States generally argued against restricting power of attorney use to jurisdictions without electronic title systems, advocated electronic and paper power of attorney use and observed that a power of attorney, without more, would not allow completion of an interstate vehicle transfer from an electronic title jurisdiction to a paper title jurisdiction. California agreed electronic disclosure would generally eliminate the need for the power of attorney but urged that the rule should not restrict its use only to a physical document. In California's view, a power of attorney, by itself, is not sufficient to sell a vehicle or otherwise convey ownership and that completing an interstate sale from an electronic to paper jurisdiction would also require a secure title printed on secure paper, with an application for a duplicate title on which the disposition of the original paper title is attested. Florida also agreed the secure power of attorney should not be needed in an electronic title environment but that paper titles will continue to be in use for some time, and the secure power of attorney should remain available to states with e-title systems. According to Florida, electronic powers of attorney would also be needed, even if not used frequently. Oregon noted there is still an issue with state-to-state transactions and will continue to be until all states implement an electronic process and asked if the proposal eliminated the use of the power of attorney with electronic titles. Virginia's comments voiced the same concerns and observations raised by California and Florida while also noting the NPRM does not address how states deny accepting documents from other states.
Texas strongly advocated allowing use of the power of attorney with any electronic title, whether within the same jurisdiction or not. Further, Texas observed electronic lien systems and electronic titles raise the question of whether the power of attorney can be used under the existing restriction that the power of attorney can be used only when a title is lost or physically held by the lienholder. As the title is neither lost or held by the lienholder but resides within state electronic title systems, a transferor must either pay off the loan to release the title prior to the transfer or must use the power of attorney to allow the transferee to complete the odometer disclosure. Texas also urged the power of attorney be permitted in jurisdictions with electronic titles and that electronic powers of attorney be allowed as well and requested there be no limitation to whom a jurisdiction can provide a secure power of attorney. Texas strongly encouraged NHTSA to amend § 580.13(f), which specifies a power of attorney is void if the odometer reading on the power of attorney is lower than on the title. According to Texas, this rule does not address situations where the power of attorney contains a statement from the transferor that the odometer reading is known to be in excess of mechanical limits or is not actual. The preceding circumstances, where the odometer reading on the power of attorney may be lower than that on the title should not, in the view of Texas, void the power of attorney. Texas also asked that this section allow for electronic submission of an original power of attorney by scanning or imaging. As the power of attorney is useful only for a single transfer, Texas requested this change not be accompanied by a requirement that the jurisdiction confirm destruction or invalidation of the document. Finally, Texas requested § 580.16 be amended to specify that a copy of a power of attorney be made available upon request rather than returned and that NHTSA replace the term “purchaser” with “transferee” for consistency.
California, Texas, and AAMVA observed the current language in § 580.13(f) states “. . . [i]f the mileage disclosed on the power of attorney form is lower than the mileage appearing on the title, the power of attorney is void and the
AAMVA also noted the power of attorney process described in the NPRM would not allow completion of a transfer of a vehicle from an electronic title state to a paper title state without the corresponding title. In AAMVA's view, a power of attorney is or would be the appropriate document to transfer ownership. These transactions should be performed on a secure physical title like they are today. AAMVA also urged a secure power of attorney, whether physical or electronic, is needed when the title is electronic because a power of attorney may still be necessary in intrastate transactions within an electronic titling state in instances where the buyer or seller does not have the ability to complete the transaction electronically. As did Texas, AAMVA observed the power of attorney regulations did not provide relief when an electronic title cannot be physically held, and there is no title available for the seller to sign.
Comments provided by the dealer and auctioneer communities supported the continued use of the power of attorney in electronic title and odometer disclosure jurisdictions as well as the availability of both electronic and
NADA noted the power of attorney should be unnecessary for electronic transfers but stated that there will be situations where a power of attorney will continue to be necessary. Therefore, NADA fully supported the use of a power of attorney in situations involving electronic state to physical state transactions when it is impractical for sellers to obtain physical copies of their electronic titles. In addition, NADA stated NHTSA should recognize that physical state to electronic state transfers may also involve lost paper titles or paper titles held by lienholders, and electronic disclosure states should have to provide for a power of attorney. The organization gave the example of a paper state trade-in customer transferring to an electronic state dealership needing to use the power of attorney if the title is lost or held by a lienholder. NADA urged amending §§ 580.13 and 580.14 to accommodate both physical and electronic powers of attorney or, at the least, NHTSA allow “electronic states” to issue physical powers of attorney.
NIADA offered similar comments and supported continued availability of the power of attorney as well as electronic versions of the document. Dealertrack asked the agency to recognize paper and electronic titles and odometer disclosures will both be used for many years and the availability of the power of attorney is essential for commerce. The company also advocated allowing an electronic power of attorney. Copart stated powers of attorney will continue to be necessary for intra-state transfers, particularly if the electronic system is not available during a catastrophic event. IAA asked if NHTSA intended for power of attorney forms only to be submitted to paper title states if their use was not allowed in electronic title and odometer disclosure states. NAAA requested NHTSA consider expanding the availability of the power of attorney to situations where technical problems in an e-title state made electronic titles unavailable. In NAAA's view, a power of attorney should be available to allow transfers to occur during the interval when the e-title is inaccessible.
Lenders and their affiliates also supported broad availability of the power of attorney. NTSF supported the continued use of the power of attorney, including electronic systems allowing for electronic power of attorney forms. CUCTX requested § 580.13 be amended to permit the use of an electronic power of attorney, even when the title is still a physical document. According to CUCTX, if parties to a transaction execute a power of attorney electronically refinancing a vehicle would be expedited. Similarly, CUCTX encouraged NHTSA to amend § 580.13 to expressly provide that financial institutions may be appointed as an agent of either the transferee or transferor to execute documents in these transactions. HCUA also urged the agency to allow that a lienholder may serve as agent of both transferor and transferee and execute the statements on their behalf. In HCUA's view, this is necessary for credit unions involved in the financing of private sales of automobiles. NAFCU also noted the agency should look for areas within part 580, especially § 580.13, to identify how the regulation can be amended to enable the efficient performance of a financial institution's essential duties when facilitating a vehicle sale.
Therefore, NAFCU recommended the regulation be amended to clearly specify that a financial institution can serve as an “agent” for the parties in the transaction.
ESRA's comments acknowledged that an electronic odometer disclosure system would allow most e-titling transactions to occur without a power of attorney. ESRA further stated an odometer disclosure by power of attorney can be made electronically. According to ESRA, if a state requires notarization of such a power of attorney, electronic notarization could be applied, and the form signed electronically, as allowed by ESIGN or the Uniform Electronic Transactions Act (“UETA”).
Section 580.17(3) exempts any vehicle which is more than 10 years old from the odometer disclosure requirements. Because the average age of the United States vehicle fleet has been trending upward, the NPRM proposed raising this exemption to 25 years. NHTSA also requested comments on whether this exemption should be eliminated.
The comments responding to this proposal were mixed, with most states supporting the proposal or remaining neutral with some concerns about increased costs. Lenders, insurers, and dealer-related organizations generally opposed the proposal while other groups aligned with consumer protection strongly supported it. Many of the commenters also exhibited concerns about the practicalities of how disclosures would be made and mileage reported when the exemption is changed given the large numbers of vehicles whose titles may already have had their odometer disclosures marked as “exempt” instead of having their mileage reported as set forth in § 580.5(e).
Among the states providing comments to this proposal, California supported raising the exemption to 25 years but not eliminating it. California suggested implementing the change incrementally at one year intervals until the 25-year threshold it attained. Florida noted the NPRM did not discuss why 25 years was proposed and questioned how this could be implemented. Oregon stated changing the exemption from 10 years to 25 years would require computer system reprogramming and result in a higher rejection rate of transactions, which would increase costs. Texas strongly supported proposed change to 25 years or eliminating the exemption. According to Texas, eliminating the exemption would simplify processing and technological requirements. Texas observed NHTSA would have to address the issues raised by currently “exempt” vehicles having no mileage recorded.
According to Texas, a solution to the problems raised by implementation would be to make the change effective when the regulation becomes effective and then phase in the applicability year-by-year over the next 15 years. Alternatively, Texas suggested vehicles exempt at the time of promulgation be grandfathered unless other evidence of false mileage exists. Virginia simply stated it does not oppose raising the exemption to 25 years or eliminating the exemption. AAMVA supported the extension of the exemption beyond 10 years, noting 25 years is consistent an antique vehicle classification in many jurisdictions. AAMVA also noted some states discontinue the issuance of titles at a certain age, such as 15 years. This, AAMVA noted, would leave no title available to carry the odometer disclosure. AAMVA expressed concern on how the change in the exemption would be implemented. At the least, AAMVA recommended any vehicle that does not reflect “actual” mileage in the title record be precluded from obtaining an “actual” mileage brand on the title even if this mileage is disclosed later. Beyond that, AAMVA recommended the rule change phase-in the 25-year exemption, by first applying the requirement to vehicles under 25 years old that are currently subject to odometer reporting.
NADA opposed the proposed change as it would greatly increase disclosure and recordkeeping burdens for transferors, transferees, and states, with no demonstration by NHTSA that vehicles 11 to 25 years-old have become
Copart opposed the proposal as an unreasonably high threshold given the average vehicle age is 11 years. Copart also questioned the benefit to be realized in relation to costs imposed by the change on state title systems. Auctioneer IAA argued that mileage as an indicator of condition and value do not apply to older cars or factor into the decisions of those who buy them. According to IAA, the proposed change is not warranted, and the costs of the expansion far outweigh any benefit.
Insurer representative AIA opposed the proposed change arguing the vehicles subject to theft and/or cloning are most often late model high-value vehicles. In AIA's view, the age of vehicles is simply not reason enough to change the existing exemption without a thoughtful discussion of the underlying need to do so. PCI argued against the proposed change stating the value of older vehicles is driven primarily by the appearance and condition of the vehicle, not its mileage. Further, PCI noted the odometers on older vehicles may not be functional, further complicating the process and providing little if any benefit to a purchaser of an older vehicle. PCI suggested if NHTSA believes that a change is necessary, the threshold for the exemption should not be higher than 15 years.
Lender affiliated organization NTSF supported changing the exempt vehicle age from 10 years to 25 years. The NSVRP, a non-profit consumer organization, stated there is no justification to retaining the 10-year recording limit. In NSVRP's view, the older the vehicle, the more likely it is there will be risks to the public from non-disclosure of odometer discrepancies. The organization noted it is likely that most vehicles now on the road are exempt and therefore not covered because of the 10 model years of age cut-off for required reporting. NOTFEA urged NHTSA to adopt the proposal. NOTFEA observed the average vehicle age is now 11.5 years and that operation of vehicles older than 12 years old is expected to increase 15% by 2020. Further, NOTFEA cited a survey indicating drivers were keeping and driving their vehicles more than 100,000 miles and planned on continuing to drive them until 200,000 miles and/or until they stopped running. Participants planned on keeping their vehicles more than 12 years.
According to NOTFEA, a recent odometer fraud investigation revealed a dealer rolled back the odometers on 547 vehicles, and only 134 were not exempt. NOTFEA stated the exempt status of vehicles gave the dealer an opportunity to reduce the mileage and that this dealer removed approximately 26 million miles from the odometers of all the exempt vehicles he sold. According to NOTFEA, this accounted for an approximate fraud loss of $1.2 million and approximately 26 million miles rolled back on 300 vehicles. NOTFEA also offered examples of similar cases involving exempt vehicles. To address the mechanics of implementing the change to the exemption threshold, NOTFEA suggested when the change becomes effective, NHTSA should make it apply only to vehicles less than 10 years old on the effective date.
The NPRM proposed various amendments updating the agency's address, removing obsolete text, and conforming the petition for alternative disclosure schemes requirements to the other proposed amendments. These included inserting a new address in §§ 580.10(b)(2) and 580.11(b)(2), deleting the text in § 580.12, and amending § 580.11(a). One commenter, NADA, indicated they supported these proposed amendments.
Several commenters addressed issues unrelated to specific proposals in the NPRM as well as other odometer disclosure concerns and issues. Some of these comments related to terms used within part 580. Texas suggested the term “purchasers” in § 580.2 be changed to “transferees” because not all transfers of ownership requiring an odometer disclosure are the result of a purchase and “purchaser” is not defined in part 580. Texas also recommended changing the language “at the time the lessors transfer the vehicle” in § 580.2 to “at the time the lessees return possession of the vehicle to the lessors” to more accurately fix the time when a lessee must make disclosure. AAMVA recommended NHTSA remove references to the term “form” as it relates to electronic odometer disclosure and electronic titles because such disclosures are not made on a paper-based “form.”
AAMVA also asked for clarification on when a power of attorney may be used in conjunction with odometer disclosure. Specifically, AAMVA wanted to know if use by third parties such as lienholders, title services, and auctions signing a non-secure power of attorney permissible. ESRA noted none of the proposed rulemaking provisions address “end of life” of vehicle title processing. In ESRA's view, NHTSA should consider if an odometer disclosure is needed once a vehicle is declared a total loss, and, if so, create an electronic disclosure process for such vehicles.
The NSVRP urged NHTSA to make whatever changes were needed to ensure odometer readings were reported to the correct jurisdiction at every transfer, including dealer-to-dealer transfers. According to NSVRP, gaps in reported mileage occurring when reassignment documents or a power of attorney are used create opportunities for title skipping and false odometer disclosure statement.
Auctioneer representative NAAA argued the proposed rule does not adequately address U.S. and international export rules. According to NAAA, U.S. Customs and Border Protection regulations require vehicles titled domestically be exported with the original certificate of title or a certified copy and destination countries may require original titles for importation. Because the proposed rule requires destruction of paper titles when those titles are converted to electronic titles, NAAA is concerned domestic and foreign customs officials may not be prepared to work with electronic titles and disclosures and that delays in processing requests to create official paper titles may harm vehicle exporters.
Two commenters, Texas and AAMVA, addressed the petition process for establishing alternative odometer disclosure schemes. AAMVA asked that the final rule ensure the petition process remains available while Texas requested § 580.12, which the NPRM proposed to remove and reserve, be used to provide the parameters for rescinding a grant of approval.
Finally, two lender organizations, NTSF and HCUA, recommended electronic odometer systems provide the means for lienholders to electronically
This final rule adopts the amendments proposed by the NPRM for §§ 580.1, 580.10, 580.11, and 580.12 without substantive change. Minor changes from NPRM proposals include replacing “his” with “their” to achieve gender neutrality throughout part 580 and establishing a definition of “jurisdiction” that encompasses states and territories to replace the term “state” wherever formerly used in part 580. Also for clarity and accuracy, § 580.2 is amended to better describe the status of a vehicle upon termination of a lease, and the term “purchasers” has been replaced with the more accurate and less restrictive term “transferees.” Consistent with the former amendment, the term “dealer” in § 508.13(g) has been changed to “transferee” to reflect that those receiving ownership are not just dealers.
The NPRM proposed facilitating adoption of electronic title and odometer disclosure systems by adapting the existing physical document requirements of part 580 to a broadly defined class of electronic documents. In response to comments criticizing this approach, the final rule contains new definitions for “Access,” “Electronic Power of Attorney,” “Electronic Title,” “Jurisdiction,” and “Printed Name,” and revises the definitions of “Original Power of Attorney,” “Sign or Signature,” and “Transferor.” These more precise definitions are applied throughout part 580 to allow odometer disclosures with both physical and electronic titles and powers of attorney. This final rule also authorizes use of an electronic power of attorney and, provides for electronic reassignments when a transferee is given a paper title by the transferor but does not take title to the vehicle. The definition of “Sign or Signature” includes an electronic signature employing NIST level 2 authentication system or its equivalent, instead of NIST Level 3. The regulations now also more clearly allow authorized modifications to electronic records and recognize that electronic titles and odometer disclosures may be held in a variety of formats. The final rule retains our proposal that an individual signing a disclosure on behalf of a business must identify himself and the business. Also, because technologies such as “pen pads” may be used in electronic titling and odometer disclosure systems and that paper documents may, in some jurisdictions, be employed in an electronic odometer disclosure system, the final rule abandons the NPRM's proposal to delete printed names from electronic transactions. This final rule also substantially relaxes the proposed requirements for scanning documents to allow document conversion in black and white at a resolution of 200 dot per inch (dpi) and recordkeeping requirements in §§ 580.8 and 580.9 provide more options for dealers and relax the rules for auctions. NHTSA now promulgates provisions allowing both electronic and paper powers of attorney if a title is unavailable to a transferor because the title is lost, physically held by a lienholder, electronically controlled by a lienholder or when an electronic title is inaccessible. The exemption rules in § 580.17 are now set so vehicles that are 20 years old or older are exempt from mileage reporting. The final rule also now explicitly establishes how this exemption will be applied to different model years.
As noted above, NADA and NAAA, suggested NHTSA issue an SNPRM prior to issuing a final rule while NAMIC and Texas stated NHTSA might consider delaying this final rule. NADA felt that an SNPRM would help to provide more comments and information about interstate transfers. NAAA asked for an SNPRM to explore the effect of any delays inherent in producing paper titles on exporting vehicles. Texas urged delay in issuance so the agency could craft clearer language. NAMIC thought delay would give a greater opportunity for NHTSA and state officials to forge a national electronic titling and odometer disclosure system.
Given the amount of time that has passed since the issuance of the NPRM and the extensive changes made to the agency's original proposal as detailed elsewhere in this notice, NHTSA does not believe that an SNPRM is needed or would provide any added value in addressing the concerns voiced by these commenters. NHTSA shares NADA's concerns about the challenges posed by interstate transactions and has drafted the final rule to provide solutions. Additionally, the agency's approach is to provide as much flexibility as possible while protecting the integrity of mileage disclosures. This approach will allow states to adopt and develop means for addressing different transactions in what will certainly be an evolutionary process. Similarly, the agency believes NAAA's concerns would not be addressed by issuing an SNPRM. States have an interest in meeting the needs of citizens and resident businesses and will likely develop methods for providing paper titles efficiently. The commenters urging delay, Texas and NAMIC, raised entirely different issues. Texas urged delay so better language could be developed. The extensive revisions made to our original proposal signal NHTSA's strenuous effort to do just that. NAMIC's loftier goal, to delay issuance until a national titling system could be developed, would require significant and unacceptable delay in issuing this final rule.
In considering the breadth of the proposals in the NPRM and the amendments promulgated in this final rule, NHTSA remained mindful of the direction given by Congress in directing that the agency “prescribe regulations permitting any written disclosures or notices and related matters to be provided electronically.” (Section 31205, 126 Stat. 761, Pub. L. 112-141 (2012)). NHTSA notes this direction was unaccompanied by any suggestion that a national electronic title system be created, however laudable that goal may be. Moreover, in enacting section 24111 of the FAST Act authorizing states to create electronic odometer disclosure systems without NHTSA's approval until the effective date of this final rule, Congress also did not offer any indication it supported the creation of a national title system by expansion of NMVTIS or other means. (Section 24111, Pub. L. 114-94 (2015)). However desirable a national electronic title or odometer disclosure infrastructure might be, the agency concluded it has not been tasked with creating such a system. Accordingly, this final rule does not answer to the sentiments expressed by AIA, NAMIC, and Texas that this rulemaking action create such a system.
A secondary scope issue exists to the extent the NPRM contemplated that NHTSA take two approaches to regulating electronic odometer disclosures. As reflected in the NPRM's request for comments, one approach would be to draft a set of detailed and comprehensive regulations creating rules governing technical aspects of system security, identity authentication, interstate communications, and the mechanics of executing transfers. Alternatively, the NPRM posited the agency take a less prescriptive approach aimed at preserving the essential characteristics of odometer disclosure and providing states with the latitude needed to develop electronic systems consistent with their environment. On
The definitions in this final rule differ significantly from those proposed in the NPRM and remedy some significant shortcomings in our earlier proposal. Commenters identified many issues created by the proposed definitions. In posing the terms “Electronic Document” and “Physical Document” our proposal apparently created an impression that NHTSA's vision of permissible electronic odometer disclosure schemes was limited to instances where the electronic record was nothing more than a scanned or imaged conversion of a paper document. Although it was not NHTSA's intent to erect such a limitation, many commenters noted these terms were inconsistent with many existing systems where electronic titles and odometer disclosures are entries in a database. Commenters also correctly observed the types of documents encompassed by the respective definitions suffered from real or apparent conflicts with other sections of the proposed rules. Some comments addressed the proposed definition of “Sign or Signature” and noted it did not appear to encompass signatures made on “pen pads” or similar devices on which an individual's physical signature is captured electronically. Two commenters, NADA and Texas, also suggested NHTSA modify the definitions section to ensure no doubt exists that the proposed rules apply to any jurisdiction that issues titles, including territories.
As noted, Texas included a “redline” version of the regulatory text proposed in the NPRM along with its substantive comments. Noting first that Texas has already implemented an electronic title and odometer disclosure system known as webDEALER consistent with NHTSA's approval of its petition to implement alternative electronic disclosure requirements and thereby gained valuable experience in a new field, NHTSA examined the changes to the regulatory language proposed by that state. After consideration of the proffered language and the comments addressing concerns about our proposals in this, and other, sections, the agency is incorporating many of the changes suggested by Texas into this Final Rule.
To distinguish between the ability to view an electronic title, power of attorney, and the electronic odometer disclosures incorporated into those records and the ability to modify those records, the final rule adds the definition of “Access” to § 580.3. This definition states “Access” is the authorized display and entry of information into an electronic title or power of attorney in a manner allowing modification of previously stored data. The definition further differentiates “Access” from the mere ability to view information without being able to modify it and distinguishes “Access” from the modification of a record resulting in creation of a new title. Adding this definition, in our view, also assists in alleviating concerns voiced by commenters that different rules proposed in the NPRM failed to adequately provide opportunities for legitimate error correction in secure records by authorized persons.
This final rule also disposes of the definition of “Electronic Document” by replacing the latter with new definitions of “Electronic Power of Attorney” and “Electronic Title.” The definition of “Physical Document” has been retained in modified form to establish the meaning of the term “Physical” as it applies to documents. The term is inserted where appropriate throughout part 580 to identify paper documents. Although the NPRM did not provide for an electronic power of attorney or propose to define one on the basis that such a document should not be necessary where electronic titles exist, NHTSA has reconsidered this position in response to the observations of some commenters that this tool will be needed as the transition from paper titles to electronic titles moves forward. The final rule definition simply states an electronic power of attorney is simply a power of attorney created and maintained in an electronic format that meets all the requirements of part 580. Our definition of “Original Power of Attorney” is amended in the final rule by adding the word “physical” for clarity. Similarly, the final rule definition for the electronic version excludes a scanned copy of a paper power of attorney. The final rule adopts a similar definition of “Electronic Title,” by specifying this record as created and maintained in an electronic format and incorporating and odometer disclosure and reassignment process. For clarity, a scanned copy of a paper title is specifically excluded from the definition. Responding to other comments that the applicability of proposed rules should be clarified, the final rule also includes a definition of “Jurisdiction” as a state, territory, or possession of the United States. To ensure all governmental entities with the power to title vehicles are clearly encompassed by part 580, the final rule replaces the term “state” with “jurisdiction” wherever it appears. The agency also notes that the definition of “Jurisdiction” is singular and signals NHTSA's decision not to establish security standards or similar regulations governing the exchange of electronic title information between jurisdictions. While it is most certainly the agency's intent to ensure that odometer disclosures be properly executed in interstate and intrastate transfers, the manner in which jurisdictions may share electronic title information is beyond the purview of this final rule.
For electronic documents, the NPRM proposed eliminating the requirement found § 580.5(f) for a person completing an odometer disclosure to provide their printed name when transferring a vehicle. The agency viewed this requirement as superfluous when identity authentication requirements should ensure the information would be available. While NHTSA still believes this to be the case where a party would have to log on to a state website to conduct a transaction, electronic title and odometer disclosure schemes may involve other procedures. For example, our approval of Florida's petition for alternative odometer disclosure requirements involved a system where individuals presented secure documents to a tag agent who entered the information into a state system. A variant of such a system might involve parties employing a pen pad to sign documents and enter information at a state or state-authorized facility after presenting identification. In such an instance, providing a printed name would be necessary to ensure identification in the future. Accordingly, the final rule is adding a definition of “Printed Name” to § 580.3 specifying what constitutes a printed name in both an electronic record and a physical document.
NHTSA's proposed changes to the definition of “Sign or Signature” generated many comments. These comments were directed at the NIST authentication level proposed in the definition as well as more prosaic concerns about the definition not
The final rule leaves the language pertaining to physical signatures unchanged and adopts a two-part definition of electronic signature. In the first part of this definition, the language remains essentially the same as that in the NPRM aside from the NIST level requirement. The second part of the definition, which states that an electronic signature may include an electronic sign or process made before an employee or statutory employee of the jurisdiction, encompasses situations where an electronic title and odometer disclosure system may involve entering information and executing signatures at a state office or a state-authorized facility. NHTSA added this language to accommodate electronic title systems that may rely on physical signatures as part of the titling and odometer disclosure process
As NHTSA observed in the NPRM, a physical signature is a unique mark linked to the person who made it. That unique mark may be tied to its maker even in the event a false name is used when the signature is given. In contrast, an electronic signature is anonymous. Confirming the identity of a person making an electronic signature is therefore dependent on factors other than the signature and requires a degree of corroboration. Because of concerns that the use of electronic signatures may impede the ability to identify persons making an odometer disclosure, NHTSA proposed the definition of “Sign or Signature” require that an electronic signature identify a specific individual. The NPRM also proposed this requirement be included in 580.6(a)(2), that proposed requirements for electronic transfers. This proposal was supported by those commenters choosing to address it, and NHTSA is adopting this requirement in this final rule.
The NPRM simultaneously proposed that in the context of an electronic odometer disclosure, the identity of the individual making or acknowledging the disclosure be verified using an identity authentication scheme meeting, or equivalent to, Level 3 as described in the NIST Special Publication 800-63-2,
Most of the commenters submitted views on this proposal, and all the commenters protested imposition of a NIST Level 3 requirement. As noted above, the comments in opposition stated the Level 3 standard was inapposite, costly, and overly restrictive. In specifying the NIST Level 3 standard, NHTSA intended to ensure the identities of those giving electronic signatures would be established to the extent necessary to ensure imposters did not execute or acknowledge mileage disclosures.
However, the agency has also re-examined the applicability of the Level 3 standard. The comments submitted in response to the NPRM, directed toward this proposal and other proposed and potential security requirements, underscored the degree to which states are invested in providing secure electronic systems and, to a lesser but still sufficient degree, in verifying the identities of persons using those systems for vehicle transfers. The final rule, therefore, specifies the required level of authentication for confirming the identity of persons participating in electronic odometer disclosures shall meet the NIST Level 2 requirements or an alternative scheme providing an equivalent level of security.
Furthermore, since the June 2017 issuance of NIST Special Publication 800-63-3,
The final rule's definition of an electronic signature—“an electronic sound, symbol, or process”—is intended to encompass the full range of methods and technologies that may be employed to electronically sign a disclosure. Accordingly, a signature executed by writing on a pen pad or using a biometric such as a fingerprint, falls within an “electronic process” as described in the definition. While a biometric such as a fingerprint or retina scan might serve as a signature under the definition, NHTSA notes that employment of a biometric does not relieve a state or jurisdiction from having to meet the authentication
The NPRM proposed amending § 580.4 to require electronic titles, powers of attorney, and reassignment documents to be maintained in a secure environment preventing unauthorized modification and recording when records are created, accessed, altered or unauthorized attempts to modify them are made as well as the date and time any attempt is made to alter the documents and any alterations are actually made in the records. The NPRM explained NHTSA might consider specifying security standards for these systems and requested comment on doing so. Commenters supported the proposed changes on the condition the final rule take adequate steps to ensure the final rule allowed authorized changes to electronic records to correct errors. One commenter, Virginia, objected to the requirement that unauthorized attempts to alter or modify records be tracked as the proper response in that event is to deny access and not create a record. Commenters overwhelmingly supported NHTSA's tentative decision to not issue security standards for overall system security.
The final rule adopts the language proposed in the NPRM with a small number of modifications. The heading for § 580.4 is changed to make it clear that it applies to physical documents, electronic titles, and electronic powers of attorney. As electronic reassignments are addressed in the definition of
NHTSA proposed changing § 580.5, Disclosure of odometer information, to accommodate electronic odometer disclosures by adding references to electronic systems, directing information required on a paper title be entered in an electronic form incorporated into the electronic title, requiring warnings be provided electronically for electronic transactions, and executed electronic disclosures be made available to the parties. Where paper transactions required participants to provide a printed name, the NPRM proposed the printed name was not needed in electronic transactions and sought to delete that requirement. NHTSA also proposed an existing requirement that transferees provide a copy of a completed paper disclosure form to transferors be expanded to electronic transactions by requiring that the completed electronic disclosure be made available to the parties. To address situations where a vehicle has not yet been titled, NHTSA proposed amendments for the use of disclosures separate from the title in both paper and electronic systems.
Commenters supported the proposed changes while offering modifications aimed at improving clarity and flexibility. The final rule addresses many of the concerns found in the comments. Because this final rule adopts a definition of an “electronic title” instead of the proposed “electronic document,” changes consistent with that definition are now incorporated into § 580.5. Section 580.5(a) states the mileage and other information required for odometer disclosures must be incorporated into a physical title or an electronic title presented to a transferee. Because an electronic title has unlimited space available for disclosures, § 580.5(b) of the final rule provides physical titles must have space available for the required elements of the disclosure. Where NHTSA proposed in § 580.5(c) that an odometer disclosure be made an “electronic form incorporated into the electronic title,” the final rule now provides disclosures be made on an electronic title to clarify that electronic title systems are not, as many commenters noted, limited to systems where “forms” are scanned into an electronic format. The final rule also differs from our proposal by requiring that parties provide a printed name on both physical and electronic titles. As noted above, using “pen pads” or similar handwriting conversion technologies could result in an inability to identify individuals in “hybrid” electronic title and odometer disclosure systems. Section § 580.5(d) of this final rule specifies the warnings and notices present on paper odometer disclosures also be presented to parties executing an electronic disclosure. The NPRM proposed an additional requirement be added to this section in electronic transactions in the form of a check box or similar mechanism to ensure the notices were read and understood before the transaction can move forward. In response to comments that this requirement is superfluous, since the electronic or physical signature already constitutes acknowledgement of these warnings, the final rule does not require a separate acknowledgement or “check box” in electronic disclosures.
NHTSA is also adopting the language proposed in the NPRM for § 580.5(f), with some modifications. Because of comments that the proposal did not sufficiently specify the sequence in which odometer disclosure statements are signed, this final rule states a transferee must execute the disclosure statement “upon receipt” of the transferor's signed disclosure. While the concept of “receipt” is arguably more ephemeral in an electronic transaction when no physical document is present, the agency believes that “receipt” in that context occurs when a system provides a display confirming the transferor's signature and all the required elements of the disclosure itself. For electronic systems, this final rule also adapts the requirement in § 580.5(f) that a transferor provide a paper copy of the executed disclosure statement to the transferee by requiring that such systems must make the completed statement available to the parties. Although one commenter objected to states being required to provide this copy, the requirement is satisfied if the electronic system allows the parties to print or download a record of the odometer disclosure and the required elements of that disclosure.
The requirement that odometer disclosures be made on the title and not on a separate document is critical for preventing odometer fraud. Since the title is nearly indispensable when establishing ownership, making
The final rule also allows the use of electronic or physical reassignments under specific conditions after a vehicle has been titled. These conditions stem from the nature of physical titles and the fact that transfers occurring in electronic title jurisdictions will inevitably involve transactions where a transferor has a paper title. Because physical titles can only accommodate a certain number of reassignments, separate secure reassignment documents can be employed to facilitate transfers between parties that do not take title to the vehicle. Where a transaction involves a vehicle with an electronic title, the electronic title system should accommodate any number of reassignments. Therefore, reassignment documents, either electronic or physical, would not be needed in electronic title jurisdictions. There will, however, be situations where an electronic title system must allow electronic reassignment before an electronic title has been created. The first will be instances where the vehicle has never been titled and neither an electronic or a physical title is available for recording reassignments. Another circumstance requiring an electronic reassignment would arise when a transferor holding a paper title for a vehicle wishes to transfer that vehicle in a jurisdiction with an electronic title system. In that circumstance, a mechanism needs to exist to allow further reassignments prior to issuance of the electronic title. If the transferor holding the physical title makes the disclosure on that title, the final rule requires subsequent electronic reassignments in such an instance, even though the vehicle has a physical title.
Consistent with other provisions of this final rule, § 580.5(g) disposes of the use of separate physical odometer disclosure statements in states with electronic title and odometer disclosure systems. To make this limitation on the use of separate physical odometer disclosure statements after a title has been issued, the final rule now states a separate physical disclosure statement may only be used after the holder of a physical title has made a proper odometer disclosure, assigned the title to their transferee, the title no longer has space for a reassignment and the transaction's locale does not have an electronic title and odometer disclosure system. Finally, while states with electronic title and odometer disclosure systems may choose to employ separate physical disclosure statements in instances where a title has not been issued, the final rule establishes these states must provide a means for electronic odometer disclosures both before and after a title has been issued.
NHTSA proposed employing Section 580.6, previously reserved, to address issues specific to electronic transactions. These proposals included electronic storage in § 580.6(a)(1), electronic signatures in § 580.6(a)(2), availability of electronic records in § 580.6(a)(3), accounting for the potential for co-existing paper and electronic records in §§ 580.6(a)(4) and 580.6(a)(6), allowing a non-negotiable paper ownership record option in § 580.6(a)(5), NHTSA also proposed, requiring secure physical documents be used in electronic odometer disclosure systems in § 580.6(a)(7), and setting standards for converting secure paper documents to electronic formats in § 580.6(a)(8).
As set out in the NPRM, § 580.6(a)(1) stated electronic records shall be retained in a format which cannot be altered, and which indicates any attempts to alter it. Commenters supported this proposal if the final rule allowed authorized alterations to the records to make corrections and other permissible changes. In response to these comments, the final rule makes several changes to this section. First, NHTSA has narrowed the applicability of this section from electronic “records” to electronic titles to remedy the overbreadth of our proposed language and for consistency with the remainder of the final rule. The final rule similarly changes the heading for § 580.6 to “Additional Requirements for Electronic Odometer Disclosures” to add clarity and precision. Proposed § 580.6(a)(1) is now redesignated as § 580.6(a) and, also for clarity, § 580.6(a)(2) through (8) are re-designated as § 580.6(b) through (h).
Section 580.6(a) of the final rule states electronic titles and power of attorney shall be retained in a format which cannot be altered unless such alterations are authorized and which indicates any unauthorized attempts to alter it (§ 580.6(a)(1)). This language allows authorized modifications in response to comments requesting this authority. To assist in detecting odometer fraud, these records must be stored in an order that permits systematic retrieval (§ 580.6(a)(2)) for a minimum of five years following conversion to a physical title, issuance of a subsequent title, or permanent destruction of the vehicle. Absent those events, the record shall be retained indefinitely. Final rule § 580.6(a)(2) and (3) mirror provisions for electronic record retrieval and storage that were found in § 580.6(a)(4) of the NPRM's regulatory text. These have been relocated as the focus of § 580.6, which has been narrowed to electronic odometer disclosures embedded in electronic titles and powers of attorney. The agency observes that two commenters, Texas and California, indicated the five-year retention period was unnecessarily burdensome and suggested three and four years respectively. Although NHTSA acknowledges that a shorter retention period would be less burdensome, the agency believes effective detection and prosecution of odometer fraud requires that states retain records, as dealers must, for not less than five years.
The agency also proposed requirements for signatures in electronic transactions. Section 580.6(a)(2), as set forth in the NPRM, stated any electronic signature identify an individual, and, further specified a business or entity be identified if the individual is acting on behalf of that business or entity. Comments submitted in response to this proposal were generally split—states,
In addition, the final rule also explains the requirement to identify both an individual and the entity that individual represents is, for auctions and dealers, limited to identifying the individual and the dealer or auction firm. NHTSA believes these modifications should relieve auctions from identifying multitudes of consignees that bring cars to them for sale, particularly since auctions typically do not take title or execute odometer disclosures. The agency does not, however, believe the requirement to identify both an individual and an entity when the individual represents an entity, should be eliminated. Identity verification schemes may rely heavily on personal information, not business information. Considering this, maintenance of what may be a rapidly changing list of “authorized” employees for a business would impose burdens on states and promote misidentification.
Executing odometer disclosures requires notices, warnings, and instructions to be read, information to be supplied by the transferor, acknowledgement and acceptance of the disclosure by the transferee, and, in paper transactions, a copy of the signed disclosure statement must be given to the transferor by the transferee. Transitioning from paper to electronic odometer disclosure requires parties have this information available. Then NPRM proposed any requirement in part 580 to disclose, issue, execute, return, notify, or otherwise provide information to another person is satisfied when the required information is electronically transmitted or otherwise electronically accessible to the party required to receive the disclosure. One association and one state opposed this proposal as imposing a requirement on states that more properly lies with the parties. Objection was also made to this requirement as “process based” and not transaction based because of the proposed § 580.6 applying to electronic transactions.
The final rule adopts the language proposed in § 580.6(a)(3) in the redesignated § 580.6(c) with modifications responsive to commenter concerns. NHTSA observes first that § 580.6 has been recast to focus on electronic odometer disclosures instead of transactions to correct the impression it applies to processes. In addition, the final rule strikes the word “execute” from the proposed regulatory text and directs a requirement to disclose, issue, return, notify, or otherwise provide information to another person in the course of an electronic odometer disclosure is satisfied when the required information is electronically transmitted or otherwise electronically available to the party required to review or receive it. Therefore, the final rule clarifies the information at issue is that which is necessary for an odometer disclosure, and the duty to provide it is satisfied when it is made available to a party. As any electronic odometer disclosure must, at a minimum, provide an opportunity for parties to the transfer to view information, this requirement does not, for all practical purposes, impose an unnecessary burden.
Paper and electronic title and disclosure systems are likely to coexist for the foreseeable future. The NPRM proposed adding two sections to 580.6 to address the issues posed by the co-existence of paper and electronic systems. Section 580.6(a)(4) proposed requiring prior paper titles be copied electronically and then destroyed when a new electronic title is created. To preserve the paper title as a record, NHTSA also proposed the electronic copy of the paper title be retained for five years. Section 580.6(a)(6) proposed electronic title states must have an ability to issue secure paper titles and upon issuing such a title must invalidate any electronic title. Commenters supported these proposals but offered some concerns. One of these is that requiring destruction of physical titles by states is cumbersome, and the same purpose can be met by invalidating the paper title. Commenters also noted the requirement that only states can print paper titles might be too restrictive as technological advances might make it possible for secure paper titles to be produced by other entities. Indeed, one individual commenter suggested individuals could print their own titles.
The agency is adopting the proposed sections with several modifications. Section 580.6(d), § 580.6(a)(4) in the NPRM, of the final rule requires states issuing electronic titles to obtain the prior physical title or proof that it was lost or invalidated before issuing a new title. These states must retain a physical or electronic copy of the physical title for five years, a period NHTSA believes is required for effective enforcement. As noted, the storage requirements for these records have been incorporated into the general requirements for storing electronic odometer disclosures in § 580.6(a) of this final rule. The final rule further adopts the language proposed in § 580.6(a)(6) of the NPRM without substantive change as § 580.6(f). NHTSA does not presently believe entities other than states should have the capability to issue titles.
NHTSA's NPRM proposed, in § 580.6(a)(5), that states with electronic title systems have the option of providing vehicle owners with a paper record of ownership, including odometer disclosure information, if that document clearly indicates it is not an official title or odometer disclosure for that vehicle. The comments received in response to this proposal were very supportive, with some commenters expressing reservations such a document could be used fraudulently if not clearly marked. The final rule adopts the proposal in § 580.6(e), allowing issuance of such a document if it clearly indicates it is not an official title for the vehicle and may not be used to transfer ownership.
States may implement electronic title and odometer disclosure schemes by employing physical documents at some stage of the process. NHTSA's approval of alternative odometer disclosure schemes presented by the Florida and New York petitions, was conditioned on the use of secure documents for portions of the odometer disclosure process. Section 580.6(a)(7) of the NPRM proposed any physical documents used make odometer disclosures for entry into an electronic title and odometer disclosure system to comply with the existing requirements of part 580. Comments directed toward this portion of the NPRM supported it, but two commenters, Arizona and Texas, respectively noted the proposed language conflicted or may conflict with other portions of the proposed rule.
The final rule adopts the regulatory text of § 580.6(a)(7) of the NPRM as § 580.6(g) and modifies the requirement that such a document meet the existing requirements of part 580. For clarity and
The simultaneous existence of both paper and electronic title and odometer disclosure systems requires paper documents be converted into electronic records. As NHTSA remained concerned document conversion presented opportunities for fraud, § 580.6(a)(8) of the NPRM proposed processes for converting titles and other secure documents to electronic copies maintain security features and that scanning be made in color at a resolution of 600 dpi. Commenters reacted strongly to this proposal and argued strenuously that it was ill founded, costly, and impractical. After consideration of these comments, the agency agrees a 600-dpi requirement is impractical and that a 200-dpi standard should provide the required level of security. Accordingly, the final rule redesignates the proposal's paragraph § 580.6(a)(8) as § 580.6(h), eliminates the requirement that scanning or imaging be performed in color and reduces the required resolution to not less than 200 dpi.
Texas submitted comments suggesting an additional two subsections be added to § 580.6. The first of these would make an explicit provision for using a power of attorney in an electronic title jurisdiction where the transferor holds a lost physical title. Rather than have the transferor execute a power of attorney and then have the transferee obtain a physical title and then convert it to electronic form, the provision would allow use of a single power of attorney to complete the transaction and convert the title. NHTSA concurs with adding this provision, which is adopted by this final rule as § 580.6(i). Texas also offered an amendment providing that reassignment documents may not be used for making odometer disclosures with an electronic title because there is no physical limit on the number of reassignments that can be incorporated into such a title. The agency agrees this provision is desirable and has added § 580.6(j) to implement it in the final rule.
Leased vehicles present challenges in making odometer disclosures because they are held by a lessee while the lessor holds the title and, without the title accompanying the vehicle, frequently transferred by the lessee to a transferor. Section 580.7 establishes special procedures to ensure accurate mileage information is provided by the lessee to the lessor so the lessor can execute the odometer disclosure on the title. The NPRM proposed amendments to § 580.7 allowing the required documents be in the form of “electronic documents.” Commenters generally supported the proposed amendments provided NHTSA did not extend the proposal to require states to play a role in facilitating lease vehicle disclosures. Many commenters noted the use of the terms “physical document” and “electronic document” as employed in the proposed regulatory text were incompatible with the definitions and security requirements of these documents proposed elsewhere in the NPRM. Consistent with the revisions this final rule makes to the definitions in § 580.3, this final rule revises § 580.7 by eliminating references to “physical document” and “electronic document” and stating required communications may be made electronically and in writing. Because the existing paper process does not contain such a requirement, the final rule also eliminates a proposal stating a lessee completing an electronic odometer statement must separately acknowledge understanding federal and applicable state law requirements prior to signing the disclosure.
Part 580's document retention requirements provide for the maintenance of records essential to establishing the paper trail used to detect and prove cases of odometer fraud. Section 580.8, applicable to dealers and distributors, and § 580.9, which applies to auction companies were both the subject of amendments proposed to include electronic copies or electronic documents as an acceptable form of record. The NPRM further proposed § 580.8 specify dealer electronic records be retained in a format which cannot be altered, and which indicates any attempts to alter it. Commenters questioned whether extending paper record requirements would be necessary in electronic title and odometer disclosure states given those states would store the same data. Comments also questioned the use of the term “electronic document” and “physical document” in the proposal given the definition proposed in § 580.3. Other comments questioned the proposal's amending the requirements for odometer disclosure statements for dealers and distributors while not applying similar requirements to leased vehicle documents and powers of attorney. The final rule makes several changes to the amendments proposed in the NPRM in response to these comments
This final rule amends § 580.8(a) to provide dealers and distributors must retain paper or electronic copies of each odometer mileage statement they issue and receive for five years. The final rule further states electronic data shall be retained so it cannot be altered and which indicates any attempts to alter it. Similarly, the final rule amends § 580.8(c) to require dealers and distributors to retain paper or electronic copies of each power of attorney, executed pursuant to §§ 580.13 and 580.14, that they receive for five years and imposes the same storage requirements for electronic documents as found in § 580.8(a). Section 580.8(b) is also amended to require lessors to retain both written and electronic odometer disclosure statements they receive from lessees for five years and, if the disclosure is electronic, the data shall be retained so it cannot be altered and which indicates any attempt to alter it. The final rule also adds a new paragraph, § 580.8(d), specifying that in the case of odometer disclosure statements made on electronic titles or electronic powers of attorney, dealers and distributors need not retain the data if the jurisdiction retains this information for five years and makes it available to these dealers and distributors at their principal place of business. To ensure these records are available to enforcement officials, the paragraph further states such data must be available at the dealer or distributors place of business upon demand.
As proposed in the NPRM, § 580.9, establishing document retention requirements for auction companies, employed the terms “electronic document” and “physical document” to describe the materials they must retain. Consistent with other changes made in this final rule, this section dispenses with those terms as used in the NPRM and states that the information may be physical or electronic. Also, the final rule replaces the term buyer in § 580.9(b) with “transferee” as that term is employed throughout part 580.
As required by the Truth in Mileage Act of 1986 (TIMA), NHTSA issued a final rule in August 1988 (53 FR 29464), stating odometer disclosures may only be made on the vehicle title unless the vehicle has never been titled or the title did not contain sufficient space for the
The advent of electronic title and odometer disclosure systems presents challenges stemming from the requirement that odometer disclosures must be made on the title, a reassignment document if no space for disclosure is available on the title, or through the special power of attorney when a title is physically held by a lienholder or has been lost. If an electronic title is subject to an electronic lien, it is not available to the vehicle owner to allow odometer disclosure until the lien is released. Further, as explained in the NPRM, a person holding an electronic title issued in one state may wish to sell their vehicle in a state that does not have an electronic title and odometer disclosure capability. Again, this vehicle owner would not have a title on which to make an odometer disclosure unless they obtained a printed title from their state beforehand.
NHTSA proposed amending § 580.13(a) and (b), to allow an individual with a vehicle titled in an electronic title state to use a power of attorney to sell a vehicle in a paper title state. Based on the belief that a power of attorney should not be needed when electronic titles and disclosures were available, the agency limited their use to the paper format. Commenters observed the NPRM's view a power of attorney would be useful in interstate transactions from an electronic title state to a paper state was flawed as the transferor would still need a paper title to register the vehicle. Most commenters advocated having both electronic and paper versions of the power of attorney in jurisdictions with electronic title and odometer systems. Three commenters noted language in § 580.13(f) stating “. . . if the mileage disclosed on the power of attorney form is lower than the mileage appearing on the title, the power of attorney is void and the dealer shall not complete the mileage disclosure on the title” (emphasis added) is erroneous. These commenters noted the dealer does not complete the disclosure and should be changed to “transferee.” Another commenter encouraged amending § 580.13(f), which specifies that a power of attorney is void if the odometer reading on the power of attorney is lower than on the title, to accommodate instances where the disclosure properly reports the odometer reading is known to be in excess of mechanical limits or is “not actual.” This commenter further asked that this section allow for electronic submission of an original power of attorney by scanning or imaging and that § 580.16 be amended to specify that a copy of a power of attorney be made available upon request rather than returned. Other comments noted an electronic title could be unavailable when subject to an electronic lien or in the event technical issues in an electronic system made titles temporarily unavailable. Commenters aligned with lenders asked the power of attorney be expanded so lenders could perform disclosures for their clients.
The agency is adopting several changes to this portion of the final rule in response to the comments. For clarity, these amendments required bifurcating the former § 580.13(a) into two paragraphs, § 580.13(a) and (b), and redesignating the former § 580.13(b) through (f) as § 580.13(c) through (g). This final rule adds a new paragraph, § 580.13(h), as explained below.
Section 580.13(a) now specifies a power of attorney may be either a paper document, defined as an “Original power of attorney” in § 580.3, or may exist in electronic form consistent with the final rule's definition of “Electronic power of attorney.” The restriction on the use of the power of attorney when the title is lost or is physically held by a lienholder remains in place for physical or paper titles. However, either an electronic power of attorney or an original power of attorney may be used when a paper title is lost or held by a lienholder. Given the likelihood that electronic title and odometer disclosure systems will not be implemented across the nation in the foreseeable future, the final rule provides a power of attorney may be used if the title in question is electronic. For an electronic title, the final rule allows use of a power of attorney under two circumstances. The first is when the electronic title is held or controlled by a lienholder. In NHTSA's view, this situation is analogous to that where a paper title is physically held by a lienholder as the title is not available to the transferor because the title will only be released when the lien is satisfied. The final rule also provides a power of attorney may be used when an electronic title cannot be accessed. The term “accessed” is employed here as defined in § 580.3 and therefore means the power of attorney may be used only in circumstances where either a transferee or a transferor does not have the ability to make authorized changes to the electronic title. In incorporating this provision into the final rule, NHTSA believes it offers the flexibility required to allow transferors with electronic titles to sell or trade in vehicles in states without electronic titles or odometer disclosure systems when the transferor did not obtain a paper title prior to the transfer.
NHTSA believes the foregoing changes to § 580.13(a) address the pre-eminent concerns expressed by most commenters. The final rule allows both physical and electronic powers of attorney to afford the flexibility required to facilitate vehicle transfers as states transition from paper to electronic titling and odometer disclosure. The agency acknowledges a power of attorney will not, in transactions where vehicle with an electronic title is transferred in a jurisdiction without electronic titles, allow the transferee to register and title the vehicle without obtaining a paper title from the transferor's state. Nonetheless, that same obstacle exists today in interstate transactions involving a lost physical title or one that is physically held by a lienholder.
This final rule also amends former § 580.13(a) through (e), now redesignated as § 580.13(b) through (f) to make these sections consistent with changes implemented elsewhere. Where it appeared, the term “state” is now replaced with “jurisdiction” to conform to the definition added in § 580.3. References to the power of attorney are also modified by use of the terms “original” and “electronic,” and the term “title” is similarly modified by the terms “electronic” or “physical.” Because of concerns raised by the potential for illegible signatures or address information in instances where a “pen pad” or similar device for recording hand written information electronically may be used, these
NHTSA has also made amendments responding to comments addressing the former § 580.13(f), now redesignated at § 580.13(g), and added a new paragraph § 580.13(h). Along with adding the necessary terms to accommodate electronic and original powers of attorney and physical and electronic titles to the former § 508.13(f), the final rule now provides two exceptions to the requirement that mileage shown to be lower than that disclosed on the title voids the power of attorney. The two exceptions added reflect two instances where the mileage on the power of attorney may properly be lower than that shown on the prior title—when the transferor states that the mileage shown reflects mileage in excess of the designed mechanical odometer limit or that the mileage shown does not reflect the actual mileage. This final rule also removes the word “dealer” in this paragraph and replaces it with the word “transferee” for consistency. This final rule also adds § 508.13(h), allowing states to receive copies of an original power of attorney in an electronic format after scanning or imaging.
This final rule also amends §§ 580.14 through 580.16 to allow for the use of both electronic and original powers of attorney, electronic and physical titles and to replace “state” with “jurisdiction” consistent with the definitions in § 580.3. As § 580.14 sets out the requirements of Part B of the power of attorney and is a counterpart to Part A addressed by § 580.13, the final rule also adds the requirement transferees provide a printed name and a printed address in § 580.14(b)(3) and (4). Consistent with § 580.13(g) of this final rule, § 580.15—establishing the certification requirements for a person exercising the power of attorney—is modified to account for situations where a transferor has indicated mileage exceeds mechanical limits of the odometer or has stated the odometer does not reflect the actual mileage. Therefore, § 580.15(a) is revised to relieve the person making the certification from attesting that the mileage they disclosed (as authorized by the power of attorney) is greater than that previously shown in the title or a reassignment document if they disclosed that the mileage exceeds mechanical limits or the odometer reading does not reflect the actual mileage. The foregoing change to § 580.15(a) requires restructuring the remainder of this section for clarity. Accordingly, § 580.15(b) is redesignated in the final rule as § 580.15(c) and the final sentence of the former § 580.15(a) is now § 580.15(b). In addition to the redesignation, § 580.15(c) is also modified to provide an exception to voiding the power of attorney for mileage inconsistency where the disclosure states the mileage is in excess of mechanical limits or does not reflect the actual mileage. The final rule makes another revision for consistency by replacing the term “purchaser” with “transferee” in § 580.16(b).
NHTSA's NPRM proposed amending § 580.17(a)(3), exempting any vehicle more than 10 years old from the odometer disclosure requirements, to raise this exemption to 25 years. Comments submitted in response to the proposal were consistent in raising concerns about how such a change would be implemented because many vehicles exempt under the former rule would no longer qualify, but may have already been claimed as exempt. Far less consensus existed in consideration of the wisdom of changing the exemption. Some commenters strongly supported the proposal, citing the increased age of the vehicle fleet and providing anecdotal evidence of significant odometer fraud prosecutions involving older vehicles. One commenter noted some states do not issue titles for older vehicles, presenting the paradox of requiring disclosure on a title when no title exists. Out of states submitting comments, only one indicated any degree of opposition, citing possible increased data entry costs. Dealers, insurers, and auctioneers opposing the proposed change to the exemption argued it would increase disclosure and recordkeeping burdens for transferors, transferees, and states, without providing any known benefit. Others also decried the notion this change would provide any benefit, contending buyers of older cars do not consider mileage as an important indicator of value, while one commenter noted theft and cloning are largely restricted to newer and higher value cars.
After review of the comments and consideration of the available data, NHTSA is modifying the 25-year exemption proposed in the NPRM to a period of 20 years. NHTSA notes that it amended the previous 25-year exemption to a 10-year exemption rule in 1988. (53 FR 29464, August 5, 1988). In the preamble to the 1988 final rule, the agency observed it was abandoning the 25-year exemption because of evidence derived from studies conducted in Wisconsin and Iowa that odometer tampering was disproportionately small as compared to the number of vehicles in that age group. The agency also observed at the time that many commenters indicated that the prices for vehicles over ten years old was not typically based on the odometer reading. Given the low incidence of odometer tampering and substantial evidence that buyers in 1988 were not relying on mileage as the primary indicator of condition in vehicles 10 year old and older than 10 years, NHTSA adopted an exemption that applied to vehicles 10 years old and older.
The 2017 National Household Travel Survey also validate this trend of increased vehicles longevity. The survey shows that the average age of household vehicles increase to 10.1 years for cars and 10.4 for light trucks/vans (LTVS) from 7.6 and 8.0 years, respectively, in 1990. In other words, 10 years and older vehicles also have increasingly comprised a greater proportion of household vehicles. In 2017, about 47 percent of the household cars and 50 percent of the household LTVs were 10 years and older—a significant increase from the respective 30 percent and 32 percent in 1990.
In 2008, noting the increasing age of light vehicles in use, the U.S. Department of Justice (DOJ) requested NHTSA consider review of the 10-year exemption. Among other things, DOJ observed the increasing numbers of “exempt” titles increased opportunities for odometer fraud while the advent of mileage records in Carfax and similar venues made such titles more valuable for those engaging in odometer fraud. Consistent with increases in vehicle age since 1988, the age of vehicles that have their mileage altered has also increased. An April 2002 NHTSA study, which
Additional considerations supporting changing the exemption include the relative ease with which modern odometers may be rolled back and the significant increases in market value that may be gained through such fraud. Mechanical odometers have vanished from the market and have been controlled by microprocessor driven digital displays. As the microprocessors controlling the odometer display are also employed in service of anti-theft devices and other functions, they may be accessed by specialized software through the vehicle's diagnostic port. This specialized software, which may be used to reset, repair or correct information in the module controlling the odometer and other systems in the instrument cluster can also be employed to remove mileage from the odometer display in minutes. Given the improved corrosion resistance and improved quality of exterior finishes on contemporary vehicles, resetting an odometer display to remove 100,000 miles from the mileage shown can significantly alter the market value of a car, often by many thousands of dollars. For those inclined to commit odometer fraud, the profit that can be gained from a single transaction can far exceed the investment in software and time needed to change the odometer display. Therefore, NHTSA's view is that the increased age of vehicles, the changes in the used car market prompted by vehicle longevity, the relative ease with which modern odometers may be rolled back and the known trends in odometer fraud support extending the exemption to 20 years.
Implementation of any change in the exemption caused many commenters to voice concern as the NPRM proposal did not account for vehicles subject to the prior exemption in the regulatory text. The final rule addresses this issue by stating the 20-year exemption applies only to vehicles manufactured after the 2010 model year, ensuring previously exempt vehicles are not captured by the new rule.
The agency believes the costs associated with changing the exemption will be negligible and more than offset by the benefits gained from protecting consumers from odometer fraud. Although one state and several commenters associated with dealers and auctioneers cited additional data entry and recordkeeping costs associated with modifying the extension, the exact nature and source of these costs was not described in the comments.
Approximately 40 million used car sales occurred in the United States in 2018. Vehicles over 10 years old accounted for approximately 3 to 4 percent of retail sales by franchised new car dealers
The change in the exemption period made by this final rule will also impose some additional recordkeeping costs.
The NPRM proposed various amendments updating the agency's address, removing obsolete text, and conforming the petition for alternative disclosure schemes requirements to the other proposed amendments. These included inserting a new address in §§ 580.10(b)(2) and 580.11(b)(2), deleting the text in § 580.12 and amending § 580.11(a). A single commenter supported these proposed amendments. This final rule adopts these amendments as proposed in the final rule.
Several commenters proposed amendments not offered in the NPRM. One commenter suggested the term “his” used in various sections of part 580 be changed to be gender neutral and that “purchasers” in § 580.2 be changed to “transferees” because not all transfers of ownership requiring an odometer disclosure are the result of a purchase and “purchaser” is not defined in part 580. This commenter also proposed changing “at the time the lessors transfer the vehicle” in § 580.2 to “at the time the lessees return possession of the vehicle to the lessors” to more accurately fix the time when a lessee must make disclosure. The final rule adopts these changes.
Commenters also asked for clarification on when a power of attorney may be used in conjunction with odometer disclosure by third parties such as lienholders, title services, and auctions. NHTSA observes the definition of both “transferor” and “transferee” in § 580.3 includes not just the owner and the buyer but also an agent acting on their behalf. Such an agent may include an individual or entity appointed by a general or limited power of attorney. If, however, that agent is representing an owner in a situation where the special power of attorney set forth in § 580.13 may be used, that agent must make the odometer disclosure on the secure special power of attorney specified in that section.
Several commenters requested NHTSA implement provisions providing lenders with the ability to make odometer disclosures through the special power of attorney in § 580.13 as well as requiring the mileage on disclosures be transmitted electronically to lenders. NHTSA does not believe expanding the scope of permissible users of the special power of attorney to be desirable because limiting the use of these documents reduces the opportunity for fraud. The agency also declines to require mileage disclosures to be transmitted electronically to lenders as such a requirement is inconsistent with the purposes of part 580.
Comments were also submitted supporting provisions to address “end of life” of vehicle title processing. These commenters suggested special electronic processes be implemented to facilitate transfers of vehicles that are scrapped or have been declared to be a total loss. NHTSA acknowledges the desirability of streamlining the process of transferring vehicles to recyclers as well as transfers for vehicles that have been declared to be a total loss. The agency does not, however, believe it should take further action other than fostering the development of electronic title and odometer disclosures through issuing this final rule.
The NSVRP urged NHTSA to make whatever changes were needed to ensure odometer readings were reported to the correct jurisdiction at every transfer, including dealer-to-dealer transfers. NHTSA concurs in the goal of having odometer mileage accurately reported at every opportunity and believes the implementation of electronic title and odometer disclosure systems will do much to achieve that goal. As this final rule eliminates reassignment documents in states with electronic odometer disclosure systems, mileage will be reported more frequently when these systems are implemented. The agency is not requiring such reporting where paper documents are used absent further analysis of the burdens that would be imposed and the benefits what would accrue.
Auctioneer representative NAAA stated U.S. Customs and Border Protection (CBP) regulations require vehicles to be exported with the original or certified copy of the title. This commenter fears CBP may not be prepared to work with electronic titles, and delays in issuing paper titles may harm vehicle exporters. NHTSA believes this final rule will not result in titles becoming more difficult to obtain.
Two commenters addressed the petition process for approval of odometer disclosure schemes, expressing concern about the effect the NPRM would have on the continued existence of the petition process. One commenter requested NHTSA establish rules for rescinding prior grants and that this final rule declare that it did not invalidate any previously granted petition. NHTSA did not propose eliminating the petition process in the NPRM, and this final rule does not make any changes to that process. The agency also does not agree there is a need to craft rules of general applicability for rescinding prior grants of any petitions for approval of alternative disclosure requirements. Historically, NHTSA has received few of these petitions and has, thus far, not encountered any situation calling for a rescinding a prior grant. To the extent any conflict exists between the requirements of this final rule and a previously granted petition, NHTSA expects the final rule to be controlling authority that must be followed. In making this statement, however, it is the agency's belief the provisions of this final rule are not inconsistent with any of its prior determinations approving alternative odometer disclosure schemes.
NHTSA intends for this final rule to accommodate emerging technologies such as blockchain that states may wish to use for recording electronic titles, making odometer disclosures, and authenticating electronic signatures. As was discussed previously, we cannot foresee all future security and authentication applications that states may wish to use to facilitate electronic odometer disclosures and title transactions. We intend for this final rule to be technology neutral. States can use any application for electronic odometer disclosure or title transactions so long as the application provides for NIST Level 2 assurance or equivalent and otherwise complies with the requirements of part 580.
The NPRM did not propose a date on which the amendments offered by NHTSA would become effective. NHTSA has determined the amendments provided below shall become effective on December 31, 2019. The agency is issuing this final rule in response to a Congressional directive that NHTSA issue regulations allowing states to implement electronic odometer disclosure systems without having to petition NHTSA for approval. After thorough review of the comments and consideration of existing electronic odometer disclosure systems, the agency believes almost all of the states with
The estimated annual costs of the final rule considers the total labor cost for filling the mileage in odometer disclosures when ownership is transferred for 11 to 19 years old used vehicles, the cost for computer storage for these disclosure records, and the processing time for filing these records. The estimated benefits of the final rule primarily are measured by the annual consumer loss from the odometer fraud that can be eliminated by the exemption requirement of the final rule. Allowing e-odometer filing is expected to be more efficient for a paper form of odometer system and thus has the benefits of paper reduction and the decrease of record processing and management time. The agency presently is unable to quantify the efficacy impact of E-odometer, therefore, its benefit is not included. The estimated costs and benefits are expressed in 2018 dollars. Please see the accompanying cost and benefit analysis for a detailed discussion.
This final rule, except for the amendment modifying the exemption for vehicles of a certain age from the odometer disclosure requirements, establishes rules intended to accommodate electronic odometer disclosures in the event states or other jurisdictions seek to adopt such systems. The agency has carefully reviewed previous petitions for approval of such systems, the requirements of federal odometer disclosure law, past rulemaking actions, and the comments provided in response to the NPRM with a goal toward crafting regulations that will continue to protect against odometer fraud while providing sufficient latitude for jurisdictions to either retain or develop electronic title and odometer disclosure schemes. The agency believes the final rule will not require the small number of jurisdictions with electronic odometer systems to make significant changes to comply with the new rules, and NHTSA will work with those jurisdictions to facilitate compliance. Specifically, the final rule requires the security of the electronic systems that are comparable to the practice of the current state security requirements and to that recommended by the task force sponsored by the American Association of Motor Vehicle Administrators.
This final rule also alters the previous exemption from odometer disclosure for vehicles that are 10 years old to make it applicable to vehicles 20 years old. This new exemption will apply to vehicles manufactured in the 2010 model year and later and, unlike the remainder of the provisions of this final rule, will be applicable to all vehicle transfers and odometer disclosures regardless of whether the disclosures are made on paper or electronically.
The increased quality and longevity of vehicles dictates half of vehicles now in use are more than 11 years old, and, with the average age at scrapping of 15 years, these vehicles are prime targets for odometer fraud. It is the agency's belief the aggregate cost of odometer fraud to purchasers of vehicles in the 10 to 20-year age range is substantial. Balanced against that cost, the burdens imposed by raising the exemption age are minimal. An odometer disclosure is one of many steps involved in transferring ownership of a vehicle. When a vehicle is old enough to be exempt from the disclosure requirements, the seller may choose to simply place the word “exempt” in the space where the odometer mileage would be entered. In such a case, the buyer and seller do not need to fill in the remainder of the disclosure form or sign it. However, whether made on the title or on a separate document when it is permissible to do so, the claim that the vehicle is exempt or the odometer mileage is recorded and processed by a state when the vehicle is registered. The odometer disclosure is also just one part of the larger process of transferring ownership in which the various participants are executing or processing documents and retaining copies as records. States will be maintaining these records regardless of whether the vehicle is exempt from odometer disclosure. Car dealerships also generally preserve all transaction records for at least five years, for tax and audit purposes. As such, the agency believes that the final rule would not have additional costs on computer and physical storage for states and car dealerships. The final rule also is not expected to increase the record processing burden to states and car dealerships. Therefore, the only cost from the final rule would be the labor cost for the time that is needed for recording the mileage from “exempt” to the actual mileage, for inspection to ensure accuracy, time to sign the statement and to provide the name and address information.
Based on the NIADA Used Car Industry Report (NIADA report),
The number of odometer disclosures for the affected vehicles would depend on the retained sources. Private party transactions (
Using several data sources (Polk registration data, NIADA report, and Edmonds), the agency estimated that the total number of affected vehicles is about 1.4 million in 2020 when only one MY of vehicles would be affected. With one additional MY of vehicles affected each progressing year, the volume as expected will be gradually increased until reaching the maximum of 10.5 million units in 2029 and later years (2028+) when 10 MYs of vehicles (
Table 1 summarizes the affected MYs, the number of affected vehicles, the total number of mileage disclosures, and the total costs from 2020. Note that the first part of the table shows the affected MYs and their corresponding age for each effective calendar year. The last column “2029+” indicates that 2029 and later, 10 MYs of vehicles will be affected by this final rule but with rolling one MY forwards each year. In other words, affected vehicles are MYs 2010-2019 for 2029, MYs 2011-2020 for 2030, and so on so forth.
The benefit of the final rule as stated earlier is measured by the consumer cost from odometer fraud that can be eliminated due to the final rule. Based on the 2013 Carfax study,
These are the available rollback statistics and fraud monetary loss that the agency used as starting points for benefit estimates. Specifically, the fraud loss was adjusted from 2013 economics to 2018 economics. Therefore, the fraud loss is estimated to be $820 million in 2018 dollars. The 60 percent rollback rate is used as the rate for all affected vehicles (
Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies require this agency to make determinations as to whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Orders. Executive Order 12866 defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
NHTSA has considered the potential impact of this final rule under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures, and have determined that it is not significant. This proposal amends existing requirements to allow States a new alternative means of complying with those requirements and changes the terms of an existing exemption from mileage disclosure. This change in the exemption will require slight additional data entry and otherwise does not impose any new regulatory burdens. For those States with existing electronic title and odometer disclosure systems, the agency believes that changes required to meet the new rule will not be burdensome. Therefore, this document was not reviewed by the Office of Management and Budget under E.O. 12866 and E.O. 13563.
E.O. 13771 (82 FR 9339, February 3, 2017), Reducing Regulation and Controlling Regulatory Costs, requires that for “every one new [E.O. 13771 regulatory action] issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
An E.O. 13771 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.” As discussed earlier, this final rule does not impose new requirements but rather creates opportunities for states to implement an electronic odometer disclosure system without petitioning NHTSA for approval. As such, it is considered a deregulatory action.
NHTSA has reviewed this rule for the purposes of the National Environmental Policy Act and determined it would not have a significant effect on the quality of the human environment.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
In compliance with the Regulatory Flexibility Act, NHTSA has evaluated the effects of this final rule on small
NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999). Executive Order 13132 requires agencies to determine the federalism implications of a final rule. The agency has determined this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The final rule adds another option to the way states may process existing odometer disclosure requirements and alters existing statutory or regulatory requirements only by changing the terms of an exemption for owners from disclosing vehicle mileage when transferring the vehicle.
When promulgating a regulation, Executive Order 12988 specifically requires the agency must make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposal is discussed above in connection with Executive Order 13132. NHTSA has also considered whether this rulemaking would have any retroactive effect. This proposed rule does not have any retroactive effect. NHTSA notes further there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
The policy statement in section 1 of Executive Order 13609 provides, in part:
The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
NHTSA finds this final rule, which establishes requirements for electronic odometer disclosure systems, does not implicate or encompass the issues outlined in the foregoing policy statement.
Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), all federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments, except when use of such a voluntary consensus standard would be inconsistent with the law or otherwise impractical. Voluntary consensus standards are technical standards (
The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a federal mandate likely to result in the expenditure by state, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). In 2011 dollars, this threshold is $139 million.
This final rule would not result in the expenditure by state, local, or tribal governments, in the aggregate, or more than $139 million annually, and would not result in the expenditure of that magnitude by the private sector.
Under the procedures established by the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a federal agency unless the collection displays a valid OMB control number. Today's final rule does not propose any new federal agency information collection requirements; it merely allows states to provide an alternative means of collecting information they already collect.
As discussed earlier in the relevant potions of this document, NHTSA is incorporating a single standard issued by the NIST into the Code of Federal Regulations in this rulemaking. The standard NHTSA is incorporating is NIST Special Publication 800-63-3
Under 5 U.S.C. 552(a)(1)(E), Congress allows agencies to incorporate by reference materials that are reasonably available to the class of persons affected if the agency has approval from the Director of the Federal Register. As a part of that approval process, the Director of the Federal Register (in 1 CFR 51.5) directs agencies to discuss (in the preamble) the ways that the materials NHTSA is incorporating by reference are reasonably available to interested parties.
NHTSA has worked to ensure that standards being considered for incorporation by reference are reasonably available to the class of persons affected. In this case, those directly affected by incorporated
Interested parties may also access the standards through NHTSA. All approved material is available for inspection at NHTSA's Office of Technical Information Services, 1200 New Jersey Avenue SE, Washington, DC 20590, phone number (202) 366-2588.
Executive Order 13211 applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12866, and is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. If the regulatory action meets either criterion, the agency must evaluate the adverse energy effects of the proposed rule and explain why the proposed regulation is preferable to other potentially effective and reasonably feasible alternatives considered by NHTSA.
This rule is not economically significant and is not likely to have a detectable effect on the supply, distribution, or use of energy.
Executive Order 13045 applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, NHTSA must evaluate the environmental health or safety effects of the proposed rule on children, and explain why the proposed regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
This rule is not economically significant will not pose such a risk for children.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an organization, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Consumer protection, Incorporation by reference, Motor vehicles, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, NHTSA amends 49 CFR part 580 as follows:
49 U.S.C. 32705; Pub. L. 112-141; delegation of authority at 49 CFR 1.95.
This part prescribes rules requiring transferors and lessees of motor vehicles to make electronic or written disclosure to transferees and lessors respectively, concerning the odometer mileage and its accuracy as directed by sections 408(a) and (e) of the Motor Vehicle Information and Cost Savings Act as amended, 49 U.S.C. 32705(a) and (c). In addition, this part prescribes the rules requiring the retention of odometer disclosure statements by motor vehicle dealers, distributors and lessors and the retention of certain other information by auction companies as directed by sections 408(g) and 414 of the Motor Vehicle Information and Cost Savings Act as amended, 49 U.S.C. 32706(d) and 32705(e).
The purpose of this part is to provide transferees of motor vehicles with odometer information to assist them in determining a vehicle's condition and value by making the disclosure of a vehicle's mileage a condition of title and by requiring lessees to disclose to their lessors the vehicle's mileage at the time the lessee returns the vehicle to the lessor. In addition, the purpose of this part is to preserve records that are needed for the proper investigation of possible violations of the Motor Vehicle Information and Cost Savings Act and any subsequent prosecutorial, adjudicative or other action.
The revisions and additions read as follows:
All terms defined in 49 U.S.C. 32702 are used in their statutory meaning. Other terms used in this part are defined as follows:
(1) For a physical title or physical power of attorney, the clear and legible name applied to the physical document of the signatory; or
(2) For an electronic title or electronic power of attorney, the clear, legible, visible, audible, recognizable, or otherwise understandable name of the electronic signatory recorded and stored electronically.
(1) For a physical document, a person's name, or a mark representing it, as hand written personally.
(2) For an electronic odometer disclosure incorporated in an electronic title or power of attorney, an electronic sound, symbol, or process:
(i) Using a secure authentication system identifying a specific individual with a degree of certainty equivalent to or greater than Level 2 as described in NIST Special Publication 800-63-3, Revision 3,
(ii) Completed in person before a bona fide employee of the jurisdiction or statutory agent under a surety bond with the jurisdiction.
(a) Each physical title shall be set forth by means of a secure printing process or other secure process. Additionally, a physical power of attorney issued pursuant to §§ 580.13 and 580.14 and physical documents, which are used to reassign the title, shall be issued by the jurisdiction and shall be set forth by a secure printing process or other secure process.
(b) Each electronic title shall be maintained in a secure environment so it is protected from unauthorized modification, alteration or disclosure. In addition, an electronic power of attorney maintained and made available pursuant to §§ 580.13 and 580.14 and shall be maintained by the jurisdiction in a secure environment so that it is protected from unauthorized modification, alteration and disclosure. Any system employed to create, store or maintain the foregoing electronic records shall record the dates and times when the electronic document is created, the odometer disclosures contained within are signed and when the documents are accessed, including the date and time any unauthorized attempt is made to alter or modify the electronic document and any unauthorized alterations or modifications made.
(a) At the time a physical or electronic title is issued or made available to the transferee, it must contain the mileage disclosed by the transferor when ownership of the vehicle was transferred and contain a space for the information required to be disclosed under paragraphs (c) through (f) of this section at the time of future transfer.
(b) Any physical documents which are used to reassign a title shall contain a space for the information required to be disclosed under paragraphs (c) through (f) of this section at the time of transfer of ownership.
(c) In connection with the transfer of ownership of a motor vehicle, the transferor shall disclose the mileage to the transferee on the physical or electronic title or, except as noted below, on the physical document being used to reassign the title. In the case of a transferor in whose name the vehicle is titled, the transferor shall disclose the mileage on the electronic title or the physical title, and not on a reassignment document. This disclosure must be signed by the transferor and must contain the transferor's printed name. In connection with the transfer of ownership of a motor vehicle in which more than one person is a transferor, only one transferor need sign the disclosure. In addition to the signature of the transferor, the disclosure must contain the following information:
(1) The odometer reading at the time of transfer (not to include tenths of miles);
(2) The date of transfer;
(3) The transferor's printed name and current address;
(4) The transferee's printed name and current address; and
(5) The identity of the vehicle, including its make, model, year, body type, and vehicle identification number.
(d) In addition to the information provided under paragraph (c) of this section, the physical document shall provide a statement referencing federal law and stating failure to complete the disclosure or providing false information may result in fines and/or imprisonment. Reference may also be made to applicable law of the jurisdiction. If the transaction at issue is electronic, the information specified in this paragraph shall be displayed, prior to the execution of any electronic signatures.
(e) In addition to the information provided under paragraphs (c) and (d) of this section:
(1) The transferor shall certify that to the best of their knowledge the
(2) If the transferor knows that the odometer reading reflects the amount of mileage in excess of the designed mechanical odometer limit, they shall include a statement that the mileage exceeds mechanical limits; or
(3) If the transferor knows that the odometer reading does not reflect a valid mileage display or differs from the mileage and that the difference is greater than that caused by odometer calibration error, they shall include a statement that the odometer reading does not reflect the actual mileage, and should not be relied upon. This statement shall also include a warning notice to alert the transferee that a discrepancy exists between the odometer reading and the actual mileage.
(f) Upon receipt of the transferor's signed disclosure statement, the transferee shall sign the disclosure statement, which shall include their printed name, and make copy available to their transferor. If the disclosure is on an electronic title, the jurisdiction shall provide a means for making copies of the completed disclosure statement available to the transferee and transferor.
(g) If the vehicle has not been titled the written disclosure shall be executed on a separate physical document or by electronic means and incorporated into the electronic title record. A separate physical reassignment document may be used for a subsequent reassignment only after a transferor holding title has made the mileage disclosure in conformance with paragraphs (c), (e), and (f) of this section on the title and assigned the physical title to their transferee. An electronic title system shall provide a means for making mileage disclosures upon assignment and reassignment electronically and incorporating these disclosures into the electronic title. A physical reassignment document shall not be used with an electronic title or when an electronic reassignment has been made. In instances where a paper title is held by the initial transferor, an available electronic reassignment may be used for a subsequent reassignment after a transferor holding title has made the mileage disclosure in conformance with paragraphs (c), (e), and (f) of this section on the title and assigned the physical title to their transferee
(a) Any electronic title or power of attorney as defined in this part shall be retained:
(1) In a format which cannot be altered unless such alterations are made as authorized by the jurisdiction, and which indicates any unauthorized attempts to alter it;
(2) In an order that permits systematic retrieval; and
(3) For a minimum of five years following conversion to a physical title, issuance of a subsequent physical or electronic title by any jurisdiction, or permanent destruction of the vehicle; otherwise, the record shall be retained indefinitely.
(b) Any electronic signature made on an odometer disclosure shall identify an individual, and not solely the organization the person represents or employs them. If the individual executing the electronic signature is acting in a business capacity or otherwise on behalf of another individual or entity, the business or other individual or entity shall also be identified when the signature is made. Electronic signatures on odometer disclosures made in connection with transfers by a licensed dealer or at an auction sale need only identify the individual executing the signature and the dealer transferring the vehicle or auction entity conducting the sale.
(c) Any requirement in these regulations to disclose, issue, return, notify or otherwise provide information to another person in the course of an electronic odometer disclosure is satisfied when the required information is electronically transmitted or otherwise electronically available to the party required to review or receive it.
(d) When an electronic title is created following transfer of ownership a vehicle with a physical title or an existing physical title is converted to an electronic title, the jurisdiction issuing the electronic title shall obtain the physical title or proof that the physical title has been invalidated or lost, and retain a physical or electronic copy of the physical title or proof for a minimum of five years.
(e) A jurisdiction issuing an electronic title may provide a paper record of ownership, which includes the odometer disclosure information, provided the paper record clearly indicates it is not an official title for the vehicle and may not be used to transfer ownership for the vehicle.
(f) A jurisdiction issuing an electronic title shall retain the capacity to issue physical titles meeting all the requirements of this part. If a physical title is created by a jurisdiction with an electronic title and odometer disclosure statement system, any electronic record of the title must indicate that a physical title has been issued and the date on which the physical title was issued. The jurisdiction shall retain a record of the identity of the recipient of the physical title if the recipient is not an owner or a lienholder.
(g) Any physical documents employed by transferors and transferees to make electronic odometer disclosures shall be set forth by means of a secure printing process or other secure process. This requirement does not apply to mileage disclosures made by lessees as required be § 580.7
(h) Physical documents employed to comply with any of the requirements of this part that are converted to an electronic format by scanning or imaging must maintain and preserve the security features incorporated in the physical document so that any alterations or modifications to the physical document can be detected in the physical document's electronic format. Scanning of physical documents must be made at a resolution of not less than 200 dpi.
(i) When a transferor's physical title is lost, a jurisdiction may facilitate the transfer of a physical title through an electronic process without issuing another physical title provided a physical or electronic power of attorney pursuant to § 580.13 is properly executed by the transferor.
(j) Electronic reassignments shall be made on or in the electronic title or, as set forth in § 580.5(g), may be entered in the electronic title system prior to the first issuance of an electronic title. A physical reassignment document shall not be used with an electronic title.
(a) Before executing any transfer of ownership document, each lessor of a leased motor vehicle shall notify the lessee electronically or in writing stating that the lessee is required to provide a written or electronic disclosure to the lessor regarding the mileage. This written or electronic notice shall contain a reference to the federal law and shall state failure to complete the disclosure or providing false information may result in fines and/or imprisonment. Reference may also be made to applicable law of the jurisdiction. If the notice is electronic, the information specified in this paragraph shall be displayed prior to, or
(b) In connection with the transfer of ownership of the leased motor vehicle, the lessee shall furnish to the lessor a written or electronic statement regarding the mileage of the vehicle. This statement must be signed by the lessee. This statement, in addition to the lessee acknowledging receiving notification of federal law and any applicable law of the jurisdiction as required by paragraph (a) of this section, shall also contain the following information:
(1) The printed name of the person making the disclosure;
(2) The current odometer reading (not to include tenths of miles);
(3) The date of the statement;
(4) The lessee's printed name and current address;
(5) The lessor's printed name and current address;
(6) The identity of the vehicle, including its make, model, year, and body type, and its vehicle identification number;
(7) The date that the lessor notified the lessee of disclosure requirements;
(8) The date that the completed disclosure statement was received by the lessor; and
(9) The signature of the lessor
(e) Any electronic system maintained by a lessor for the purpose of complying with the requirements of this section shall meet the requirements of § 580.4(b) of this part.
(a) Dealers and distributors of motor vehicles who are required by this part to execute an odometer disclosure statement shall retain, except as noted in paragraph (d), for five years a photostat, carbon, other facsimile copy, or electronic copy of each odometer mileage statement, which they issue and receive. They shall retain all odometer disclosure statements at their primary place of business in an order appropriate to business requirements and that permits systematic retrieval. Electronic copies shall be retained in a format which cannot be altered and which indicates any attempts to alter it.
(b) Lessors shall retain, for five years following the date they transfer ownership of the leased vehicle, each written or electronic odometer disclosure statement which they receive from a lessee. They shall retain all odometer disclosure statements at their primary place of business in an order that is appropriate to business requirements and that permits systematic retrieval. Electronic copies shall be retained in a format which cannot be altered and which indicates any attempts to alter it.
(c) Dealers and distributors of motor vehicles who are granted a power of attorney, except as noted in paragraph (d) of this section, by their transferor pursuant to § 580.13, or by their transferee pursuant to § 580.14, shall retain for five years a photostat, carbon, or other facsimile copy, or electronic copy of each power of attorney they receive. They shall retain all powers of attorney at their primary place of business in an order that is appropriate to business requirements and that permits systematic retrieval. Electronic copies shall be retained in a format which cannot be altered and which indicates any unauthorized attempts to alter it.
(d) Any odometer disclosure statement made on an electronic title or electronic power of attorney shall be retained by the jurisdiction for a minimum of five years and made available upon request to dealers, distributors, and lessors for retrieval at their principal place of business and inspection on demand by law enforcement officials. Dealers, distributors, and lessors are not required to, but may, retain a copy of an odometer disclosure statement made on an electronic title or electronic power of attorney.
Each auction company shall establish and retain in physical or electronic format at its primary place of business in an order appropriate to business requirements and that permits systematic retrieval, for five years following the date of sale of each motor vehicle, the following records:
* * *
(b) The name of the transferee;
* * *
(b) * * *
(2) Be submitted to the Office of Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, W41-326, Washington, DC 20590;
(a) A state may petition NHTSA for approval of disclosure requirements which differ from the disclosure requirements of § 580.5, § 580.6, § 580.7, or § 580.13(f) of this part.
(b) * * *
(2) Be submitted to the Office of Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, W41-326, Washington, DC 20590;
(3) Set forth the motor vehicle disclosure requirements in effect in the jurisdiction, including a copy of the applicable laws or regulations of the jurisdiction; and
(4) Explain how the jurisdiction's motor vehicle disclosure requirements are consistent with the purposes of the Motor Vehicle Information and Cost Savings Act.
(c) Notice of the petition and an initial determination pending a 30-day comment period will be published in the
(a) If otherwise permitted by the law of the jurisdiction, the transferor may grant a power of attorney to their transferee for the purpose of mileage disclosure under one of the following conditions:
(1) The transferor's physical title is held by a lienholder; or
(2) The transferor's physical title is lost; or
(3) The transferor's electronic title is held or controlled by a lienholder; or
(4) The transferor's electronic title cannot be accessed.
(b) The physical or electronic power of attorney shall contain, in part A, a space for the information required to be disclosed under paragraphs (c) through (f) of this section. If a state permits the use of a physical or electronic power of attorney in the situation described in § 580.14(a), the power of attorney must also contain, in part B, a space for the information required to be disclosed under § 580.14, and, in part C, a space for the certification required to be made under § 580.15.
(c) In connection with the transfer of ownership of a motor vehicle as described in paragraph (a) of this section, where the transferor elects to give their transferee a physical or electronic power of attorney for the purpose of mileage disclosure, the transferor must appoint the transferee their attorney-in-fact for the purpose of mileage disclosure and disclose the mileage on the physical or electronic power of attorney form issued by the jurisdiction in which the transfer occurs. This disclosure must be signed by the transferor, including the printed name, and contain the following information:
(1) The odometer reading at the time of transfer (not to include tenths of miles);
(2) The date of transfer;
(3) The transferor's printed name and current address;
(4) The transferee's printed name and current address; and
(5) The identity of the vehicle, including its make, model, year, body type, and vehicle identification number.
(d) In addition to the information provided under paragraph (c) of this section, the physical or electronic power of attorney form shall refer to the federal odometer law and state that providing false information or the failure of the person granted the power of attorney to submit the form to the jurisdiction may result in fines and/or imprisonment. Reference may also be made to applicable law of the jurisdiction.
(e) In addition to the information provided under paragraphs (c) and (d) of this section:
(1) The transferor shall certify that to the best of their knowledge the odometer reading reflects the actual mileage; or
(2) If the transferor knows that the odometer reading reflects mileage in excess of the designed mechanical odometer limit, they shall include a statement to that the mileage exceeds mechanical limits; or
(3) If the transferor knows the odometer reading differs from the mileage and the difference is greater than that caused by a calibration error or does not reflect a valid mileage display, they shall include a statement that the odometer reading does not reflect the actual mileage and should not be relied upon. This statement shall also include a warning notice to alert the transferee that a discrepancy exists between the odometer reading and the actual mileage.
(f) The transferee shall sign the physical or electronic power of attorney, which shall include their printed name, and make a copy of the power of attorney form available to the transferor.
(g) Upon receipt of the transferor's physical or electronic title, the transferee shall complete the space for mileage disclosure on the title exactly as the mileage was disclosed by the transferor on the physical or electronic power of attorney. The transferee shall submit the physical or electronic power of attorney to the jurisdiction that issued it with the actual physical or electronic title when the transferee submits a new title application. The jurisdiction shall retain the physical or electronic power of attorney form and physical or electronic title for a minimum of three years or a period equal to the state titling record retention period, whichever is shorter. If the mileage disclosed on the physical or electronic power of attorney is lower than the mileage appearing on the physical or electronic title, the power of attorney is void and the transferee shall not complete the mileage disclosure on the title unless:
(1) The transferor has included a statement that the mileage exceeds mechanical limits; or
(2) The transferor has included a statement that the odometer reading does not reflect the actual mileage.
(h) A jurisdiction may permit submission of a physical power of attorney in an electronic format such as by scanning or imaging.
(a) In circumstances where part A of a physical power of attorney form has been used pursuant to § 580.13 of this part, and if otherwise permitted by the law of the jurisdiction, a transferee may grant power of attorney to their transferor to review the physical or electronic title and any physical reassignment documents, if applicable, for mileage discrepancies, and if no discrepancies are found, to acknowledge disclosure on the physical or electronic title. The power of attorney shall be on part B of the physical or electronic power of attorney referred to in § 580.13(a), which shall contain a space for the information required to be disclosed under paragraphs (b), (c), and (d) of this section and, in part C, a space for the certification required to be made under § 580.15.
(b) Part B of the physical or electronic power of attorney must include a mileage disclosure from the transferor to the transferee and must be signed by the transferor, including the printed name, and contain the following information:
(1) The odometer reading at the time of transfer (not to include tenths of miles);
(2) The date of transfer;
(3) The transferor's printed name and current address;
(4) The transferee's printed name and current address; and
(5) The identity of the vehicle, including its make, model, year, body type, and vehicle identification number.
(c) In addition to the information provided under paragraph (b) of this section, the power of attorney form shall refer to the federal odometer law and state that providing false information or the failure of the person granted the power of attorney to submit the form to the State may result in fines and/or imprisonment. Reference may also be made to applicable law of the jurisdiction.
(d) In addition to the information provided under paragraphs (b) and (c) of this section:
(1) The transferor shall certify that to the best of their knowledge the odometer reading reflects the actual mileage; or
(2) If the transferor knows that the odometer reading reflects mileage in excess of the designed mechanical odometer limit, they shall include a statement to that the mileage exceeds mechanical limits; or
(3) If the transferor knows that the odometer reading differs from the mileage and the difference is greater than that caused by a calibration error or does not reflect a valid mileage display, they shall include a statement that the odometer reading does not reflect the actual mileage and should not be relied upon. This statement shall also include a warning notice to alert the transferee that a discrepancy exists between the odometer reading and the actual mileage.
(e) The transferee shall sign the physical or electronic power of attorney form, which shall include their printed name.
(f) The transferor shall give a copy of the physical power of attorney form to their transferee.
(a) A person who exercises a power of attorney under both §§ 580.13 and 580.14 must complete a certification that they disclosed the mileage on the physical or electronic title as it was provided to them on the physical or electronic power of attorney form, and that upon examination of the physical or electronic title and any applicable physical reassignment documents, the mileage disclosure made on the physical or electronic title pursuant to the physical or electronic power of attorney is greater than that previously stated on the physical or electronic title and applicable physical reassignment documents unless:
(1) The transferor has included a statement that the mileage exceeds mechanical limits; or
(2) The transferor has included a statement that the odometer reading does not reflect the actual mileage.
(b) This certification shall be under part C of the same form as the powers of attorney executed under §§ 580.13 and 580.14 and shall include:
(1) The signature and printed name of the person exercising the power of attorney;
(2) The printed address of the person exercising the power of attorney; and
(3) The date of the certification.
(c) If the mileage reflected by the transferor on the power of attorney is less than that previously stated on the title and any reassignment documents, the power of attorney shall be void unless:
(1) The transferor has included a statement that the mileage exceeds mechanical limits; or
(2) The transferor has included a statement that the odometer reading does not reflect the actual mileage.
(a) In circumstances in which a power of attorney has been used pursuant to § 580.13, if a subsequent transferee elects to return to their transferor to sign the disclosure on the physical or electronic title and does not give their transferor a power of attorney pursuant to § 580.14, the transferor shall, upon the subsequent transferee's request, show that transferee a copy of the physical or electronic power of attorney that he they received from their transferor.
(b) Upon request of a transferee, a transferor who was granted a power of attorney by their transferor and who holds the title to the vehicle in their own name, must show to the transferee the copy of the previous owner's title and the physical or electronic power of attorney form.
(a) * * *
(3)(i) A vehicle manufactured in or before the 2009 model year that is transferred at least 10 years after January 1 of the calendar year corresponding to its designated model year;
(ii) Example to paragraph (a)(3): For vehicle transfers occurring during calendar year 2019, model year 2009 or older vehicles are exempt.
(4)(i) A vehicle manufactured in or after the 2010 model year that is transferred at least 20 years after January 1 of the calendar year corresponding to its designated model year; or
(ii) Example to paragraph (a)(4): For vehicle transfers occurring during calendar year 2030, model year 2010 or older vehicles are exempt.
(5) A vehicle sold directly by the manufacturer to any agency of the United States in conformity with contractual specifications.
Under authority delegated in 49 CFR 1.95, 501.5, and 501.7.
Office of the Secretary (OST), DOT.
Notice of proposed rulemaking (NPRM).
The U.S. Department of Transportation (DOT or Department) requests comments on a proposed rule to establish and implement the Tribal Transportation Self-Governance Program (TTSGP or Program), as authorized by Section 1121 of the Fixing America's Surface Transportation (FAST) Act. The proposed rule was negotiated among representatives of Tribes and the Federal Government. The Program would provide to participating Tribes greater control and decision-making authority over their use of certain DOT funding for which they are eligible recipients while reducing associated administrative burdens. These proposed regulations include eligibility criteria, describe the contents of and process for negotiating self-governance compacts and funding agreements with the Department, and set forth the roles, responsibilities, and limitations on the Department and Tribes that participate in the TTSGP.
Written comments on this notice must be received on or before December 2, 2019. The Department will consider late comments to the extent practicable.
You may submit comments by any of the following methods:
All comment submissions must include the agency name, docket name, and docket number (DOT-OST-2018-0104) or Regulation Identifier Number (RIN) for this rulemaking (2105- AE71). Note that all comments received will be posted without change to
This document may be viewed online under the docket number noted above through the Federal eRulemaking portal,
Mr. Ronald Jackson, Designated Federal Officer, Office of the Secretary, (202) 366-9151 or via email at
Consistent with Executive Order 13175,
1. October 21, 2019, 8:30 a.m.-1 p.m. MDT, National Congress of American Indians Annual Convention, Albuquerque, NM.
2. November 5, 2019, 8:30 a.m.-12 p.m. CST, United Southern and Eastern Tribes Annual Meeting, Choctaw, MS.
3. November 19, 2019, Seattle, WA.
4. November 21, 2019, 1 p.m.-5 p.m. EST, Virtual Listening Session by Webinar,
These proposed regulations would implement Section 1121 of the Fixing America's Surface Transportation (FAST) Act, Public Law (Pub. L.) 114-94, which was enacted on December 4, 2015, and is codified at 23 U.S.C. 207 (Section 207). This section directs the Secretary of Transportation (Secretary) to establish and carry out the Tribal Transportation Self-Governance Program (TTSGP). It also directed the Department to develop regulations to implement the program pursuant to the Negotiated Rulemaking Act, 5 U.S.C. 561
Implementation of the TTSGP through this rule would maintain and improve the Federal Government's unique and continuing relationship with and responsibility to Tribes, without a diminishment in any way of the trust responsibility of the United States to Indian Tribes and individual Indians that exists under treaties, Executive orders, or other laws and court decisions, and permit each eligible Tribe to choose the extent of its participation in the TTSGP. It would
Section 207 is self-effectuating. It sets forth the following:
To participate in the TTSGP, a Tribe's governmental body must authorize its participation in self-governance, and the Tribe must demonstrate, for the previous three fiscal years, financial stability and financial management capacity, and transportation program management capability.
The Department and an eligible Tribe negotiate and enter into a written funding agreement that allows the Tribe to plan, conduct, consolidate, and administer programs that the Department would otherwise administer.
A Tribe may redesign or consolidate certain programs and reallocate funds to best meet a Tribe's transportation needs.
A Tribe may suspend performance under a compact and funding agreement in the absence of funding or, at the Tribe's election, retrocede all or a portion of the programs that are included in a funding agreement for any reason.
Funding agreements must provide for advance payments to the participating Tribes for amounts equal to what the Tribe would be eligible to receive under contracts and grants under Section 207.
Except as otherwise provided by law, the Secretary must interpret laws and regulations in a manner that will facilitate the inclusion of programs and funds in, and the implementation of, compacts and funding agreements.
Each provision of Section 207, a compact, or a funding agreement must be liberally construed for the benefit of Tribes participating in self-governance and any ambiguity must be resolved in favor of Tribes.
The Department has 90 days from the receipt of a request to waive the TTSGP regulations in which to approve or deny the request or the waiver request is deemed automatically approved.
Section 207(n) directs the Secretary to develop the regulations consistent with the Negotiated Rulemaking Act and to adapt the negotiated rulemaking procedures to the unique context of self-governance and the government-to-government relationship between the United States and Indian Tribes. Section 207(n) restricts membership of the negotiated rulemaking committee (committee) to Federal and Tribal government representatives. The Federal Highway Administration, on behalf of the Department, published a
The first committee meeting was held in Sterling, VA on August 16-18, 2016, during which the committee negotiated Protocols, a set of written procedures under which the committee would operate.
There were no committee meetings between December 2016 and January 2018, during which time, the Office of the Secretary assumed responsibility for the rulemaking. The Department published a
Next, the committee met in Washington, DC at Department headquarters on June 18-19, 2018. In advance of the meeting, the Department distributed a revised discussion draft, and a crosswalk comparison of the January and June 2018 drafts, for consideration by the full committee. The Tribal representatives attended the June 2018 committee meeting but raised several objections. They believed that the draft being submitted to the committee had not been prepared mutually through a negotiated process involving both the Department and Tribal representatives. On June 19, 2018, the Tribal representatives suspended negotiations based on their objections. As such, the committee did not approve any meeting minutes or documents.
Concurrent with its decision to suspend negotiations, the Tribal representatives submitted a letter
At the request of the Tribal representatives, the Department retained the services of the Federal Mediation and Conciliation Service (FMCS), a neutral third-party, to facilitate subsequent negotiations. The Department and the Tribal representatives subsequently worked through their differences with the assistance of FMCS.
In October 2018, the Tribal representatives submitted to the Department a revised discussion draft for the committee's consideration. With assistance from FMCS, the committee resumed negotiations in Washington, DC, between October 29-November 3, 2018. At the recommendation of FMCS, the committee appointed a drafting
Between November 2018 and February 2019, the FMCS convened the drafting subcommittee virtually and in Washington, DC to develop recommendations and proposed regulatory text for the committee's negotiation. After consulting with the Designated Federal Officer (DFO) and the Tribal Co-Chairs, the FMCS convened the committee in Shawnee, Oklahoma on March 18-19, 2019, followed by a two-day drafting subcommittee meeting on March 20-21, 2019. During the committee meeting, the committee reached tentative agreement on several proposed regulatory sections and provided additional direction to the drafting subcommittee. Finally, the committee authorized FMCS and the drafting subcommittee to continue to negotiate additional recommendations and to propose regulatory language addressing the remaining topics.
FMCS convened the drafting subcommittee in Washington, DC on April 1-4, April 23-26, and May 20-23, 2019, to develop the remaining provisions of the draft rule for the committee's consideration. After consulting with the DFO and the Tribal Co-Chairs, FMCS convened the committee in Scottsdale, Arizona on June 3-6, 2019. At the meeting, the drafting subcommittee presented the proposed regulatory language to the committee, identified a limited number of non-consensus items that remained outstanding, and provided recommendations and preferred language addressing these areas of disagreement. The committee reached tentative agreement on most of the rule and provided additional direction to the drafting subcommittee on the outstanding provisions. The committee authorized the drafting subcommittee to complete the draft rule for the committee's review and agreement.
The drafting subcommittee met in Washington, DC on June 25-26, 2019, to complete its work. On June 26, 2019, FMCS facilitated the subcommittee's briefing of the committee on the draft rule. The committee reached consensus on the draft rule, including the description of the disagreement items discussed below. The Tribal Co-Chairs and the DFO confirmed the committee's consensus determination to submit the draft rule to the Department.
The following summary describes the Department's proposed regulations to implement the TTSGP. Except for four areas of disagreement discussed below, the proposed regulations are the product of consensus. The Department seeks public comment on the proposed rule and the non-consensus items noted below.
This subpart would set forth the purpose and authority of these regulations, Departmental policy, effect of these regulations on existing Tribal rights, the Department's obligation to consult with self-governance Tribes, and definitions. It would clarify the prospective effect of these regulations and address the status of a participating Tribe's existing Tribal Transportation Program (TTP) Agreement entered into under the authority of 23 U.S.C. 202 to a compact and funding agreement. Finally, it would clarify the effect of 23 U.S.C. 207 on requirements contained in Federal program guidelines, manuals, or policy directives.
The definition provision would define the phrase “programs, services, functions, and activities” or “PSFAs.” The Department does not deliver PSFAs on behalf of Tribes; Tribes instead carry out PSFAs using the five categories of funding eligible to be include in a funding agreement between the Department and the Tribe.
This subpart would identify the eligibility requirements for a Tribe or Tribal consortium (collectively “Tribe”) to participate in the Program. Tribes must demonstrate financial stability and financial management capability, and transportation program management capability to be eligible to participate in the TTSGP. The regulation would provide three means by which Tribes may demonstrate financial stability and financial management capacity. First, the regulation would set forth Section 207's conclusive evidence standard. This regulation would also set forth a new, sufficient evidence standard for Tribes subject to the Single Audit Act that currently conduct business with DOT through the TTP or a DOT grant award and have no uncorrected significant and material audit exceptions in their required single audits. Finally, the regulation would introduce a standard for Tribes without a mandate to comply with the Single Audit Act that currently conduct business with DOT to request eligibility in DOT's discretion.
Tribes that would meet the sufficient evidence standard are well placed to participate in the DOT self-governance program—they conduct audits under the Single Audit Act, demonstrate that they do not have material and significant audit exceptions, and demonstrate transportation program capability. While TTP Agreements are “in accordance with the ISDEAA,” Tribes are subject to Federal Highway Administration (FHWA) oversight when they administer TTP funds. Tribes plan, budget, prioritize, and otherwise manage their Tribal transportation programs. The sufficient evidence standard recognizes that Tribes that successfully work with the FHWA under TTP Agreements and successfully manage grants for the maintenance, rehabilitation, and construction of transportation facilities should receive the benefits Congress intended in enacting the TTSGP.
The regulation would also provide a discretionary standard under which Tribes that do not meet the audit threshold of the Single Audit Act may participate in the Program if the necessary financial assurances are in place. This option is consistent with FHWA practice in administering the TTP provided the Tribe demonstrates financial capacity. FHWA has long permitted Tribes not subject to the Single Audit Act to participate, provided they undergo an independent audit and provide evidence demonstrating no uncorrected significant and material audit findings. DOT has determined that some smaller-funded Tribes have worked well with DOT under TTP Agreements as well as under the Federal Transit Administration's Tribal Transit Program. The Department does not want to compel those Tribes to join a consortium to be eligible for the DOT self-governance program.
The regulation also would provide for technical assistance, to the extent the Department has the resources and expertise, to Tribes that do not meet the criteria for financial stability and financial management capacity due to uncorrected significant and material audit exceptions. While the Department will not substitute its judgement for that of another agency where the audit reveals findings related to a non-DOT program, the Department may provide technical assistance for audit exceptions related to DOT programs. In these instances, a Tribe can work with the Department to correct those exceptions so that they come into compliance and demonstrate financial stability and
This regulation also would describe the evidence the Department would consider in making the discretionary determination that a Tribe has demonstrated transportation program management capability to be eligible to participate in the Program. The Department will use these criteria to evaluate the totality of the evidence presented in support of the eligibility application. Finally, this subpart would describe the negotiation process a Tribe must follow to enter into a compact and funding agreement with the Department to participate in the TTSGP.
The United States Department of the Interior (DOI) operates the DOI Tribal Self-Governance Program pursuant to Title IV of ISDEAA, as amended (codified at 25 U.S.C. 5301
This subpart would set forth the final offer process that a Tribe may invoke during negotiation with the Department of a compact and funding agreement. It is the Department's intent that a Tribe should only use the final offer process when there is a negotiation impasse and not before the parties have fully explored an area of disagreement. This subpart also would set forth the Department's responsibilities in processing a final offer, the grounds for rejecting the Tribe's final offer, and the Tribe's rights to challenge an adverse decision related to the final offer.
This subpart would identify what is included in a compact, funding agreements and amendments, the duration of such agreements, and the rights and responsibilities of the Department and a Tribe. It would clarify that, notwithstanding the effect of 23 U.S.C. 207(n)(4), the compacts and funding agreements must include the requirements related to public health and safety associated with the funding under the relevant programs.
This subpart would set forth the five categories of Department funds that a Tribe may elect to include in its funding agreement and, with agreement of a State, the transfer of Federal-aid funds. This subpart also describes responsibilities of the Department with respect to transfer of such funds, including the time to transfer the funds, and other issues related to the funding provided to Tribes through their TTSGP compact and funding agreements, including the use of such funds via the funding agreement. This subpart also would address how these funds may be used for matching or cost participation purposes and investment standards. Finally, while § 29.401(c)(2) sets forth the requirement from Section 207(h)(2) that the Department include in a funding agreement amounts equal to the project-related administrative expenses (PRAE) incurred by the Bureau of Indian Affairs (BIA) that the Department would have withheld under the Tribal Transportation Program, the Department notes that it does not presently provide to the BIA any funds for PRAE.
This subpart includes information and instructions to Tribes that participate in the TTSGP. Topics covered in this subpart include: (1) Audits and cost principles; (2) management systems and standards; (3) procurement management systems and standards; (4) property management systems and standards; (5) recordkeeping requirements; (6) reporting; (7) technical assistance; (8) prevailing wages; (9) Indian preference; (10) environmental and cultural resource compliance; (11) Federal Tort Claims Act applicability, and (12) waiver of Program regulations. The technical assistance provision would clarify that the Department is committed to carrying out the principles of self-governance while also ensuring proper stewardship and oversight of Federal funds.
With respect to rights-of-way on Tribal lands, these regulations would not affect the Department of the Interior's (DOI's) authority. DOI will continue to exercise its authority relating to the application, review, grant, administration, and oversight of rights-of-way on Tribal lands under 25 U.S.C. 323-328 and 25 CFR part 169.
This subpart would describe the process for a Tribe to withdraw from a consortium's TTSGP compact or funding agreement with the Department, including distribution of the Tribe's shares of TTSGP funding. It would clarify that the Department is not a party to internal consortium disputes and would provide notice to consortia that seek to participate in the TTSGP that its agreements should adequately address the circumstances under which a member Tribe may withdraw.
This subpart would clarify that a Tribe may voluntarily discontinue performing a portion or all of the PSFAs under its compact and funding agreement, and may return remaining funds to the Department in accordance with the process set forth in this subpart. It also would clarify the effect of a Tribe's retrocession on its eligibility, and sets forth how funds must be distributed when the retrocession takes effect.
This subpart would describe when and under what circumstances the Department may terminate a Tribe's compact and funding agreement.
This subpart would set forth procedures, including various alternative dispute resolution mechanisms, that a Tribe may use to resolve disputes with the Department arising before or after execution of a compact or funding agreement, as well as the appeal rights and procedures Tribes must use to appeal the Department's decisions to terminate a Tribe's compact and funding agreement. It would provide the process for filing and processing appeals from adverse decisions and the applicable burden of proof.
The committee did not reach consensus on four issues. These include: (1) Whether to establish an Office of Self-Governance in the Department and create a Self-Governance Advisory committee prior to or simultaneous with issuance of the final rule; (2) whether the title I ISDEAA provision, 25 U.S.C. 5325(a), relating to contract support costs (CSCs), is in conflict with Section 207; (3) whether the title I ISDEAA provision, 25 U.S.C. 5324(
Each area of disagreement is presented below, in order, by subpart and section, as appropriate. To the extent a disagreement could not be resolved, the Department has incorporated its language proposal into the proposed regulatory text, and the Tribal and Department views on these areas of disagreement are set forth below. The Department solicits comments on these areas of disagreement.
During the negotiated rulemaking, the committee addressed over two dozen general subject matter areas: (1) Congressional and Secretarial policy; (2) definitions; (3) technical assistance; (4) eligibility; (5) negotiating funding agreements and compacts, including final offer; (6) contents of compacts and funding agreements; (7) regulatory waivers and streamlining; (8) transfer of funds; (9) requirements, limitations, and uses of funding; (10) financial management, property management and procurement management systems and standards, and disposition of Federal property; (11) retrocession, termination and assumption; (12) withdrawal from a Tribal consortium; (13) appeals and dispute resolution, and Equal Access to Justice Act (EAJA); (14) applicability to the Program of ISDEAA provisions; (15) CSCs; (16) facility lease payments under 25 U.S.C. 5324
Tribal representatives believe that the Department should establish an Office of Self-Governance in order to successfully administer the Program. This office would act as the point of contact for Tribes to learn about the Program and their eligibility to participate, and, over time, to provide knowledge and expertise to the Department relating to Indian Tribes and the TTSGP. Tribes believe this Office should be created as soon as practicable. The regulations do contemplate a Chief Self Governance Official who will handle all matters related to the TTSGP. It is the Tribal representatives' view that staffing an Office of Self-Governance and meeting with Indian Tribes, Tribal elected officials, and Tribal transportation, transit and highway safety staff prior to the rule taking effect would be indispensable to the Program and the Department, and would better guarantee the Department's successful implementation of the TTSGP. With respect to the establishment of a TTSGP Self-Governance Advisory Committee, Tribal representatives believe that Tribal advisory committees have proven for years to be indispensable assets to Tribes and the Department of the Interior's (DOI) Bureau of Indian Affairs (BIA), the Department of Health and Human Services' (HHS) Indian Health Service (IHS), and the Department's Federal Highway Administration. These committees provide recommendations to the agencies and information to their respective Tribes and regions to better administer these programs that are critical to the Indian Tribes and their citizens. These bodies were established by and are referenced in agency regulations.
Section 207 does not require the establishment of an Office of Self-Governance, and it is not Federal agency practice to establish new offices in regulation. Establishing an office within the Department is a matter of internal organization and management. These regulations are not the appropriate mechanism for resolving the Tribal representatives' recommendation.
The Department does not foreclose the possibility of establishing an Office of Self-Governance. The proposed regulations provide for a Chief Self-Governance Official, a flexible structure that may accommodate an office in the future. In the interim, the Deputy Assistant Secretary for Tribal Affairs liaises with Tribal representatives by providing information, making technical assistance available, and coordinating policy across the Department in support of self-governance activities.
The Department does not disagree that an advisory committee may provide important information to the Department as it begins to carry out the TTSGP. However, this regulation is not the appropriate mechanism for establishing an advisory committee. In addition, the Department may avail itself of other processes, such as the Tribal consultation provision in Subpart A, to solicit feedback and information from Tribes and self-governance experts as it begins the process of implementing the TTSGP.
Tribal representatives assert that section 207(
CSCs are an eligible expense that should be included in and paid in addition to the funds made available to a Tribe under the Program. The absence of appropriations specifically for CSCs in annual appropriations for the Department's formula-based and discretionary and competitive grant programs is not a legal basis to find 25 U.S.C. 5325(a) in conflict with Section 207. Tribal representatives believe that Section 207 requires the Department to fully fund CSCs.
Based on their experience with ISDEAA programs, Tribes believe that Tribal success in implementing ISDEAA agreements, especially with regard to financial management systems integrity, compliance with annual audits, and the good stewardship of Federal funds, depends on Federal agencies requesting the full level of Tribal need for CSC funds. These same principles apply to the TTSGP just as they do to health care, social services, and other programs Tribes administer under self-governance programs.
The basis for payment of CSCs is not whether the Department provided direct services to Tribes prior to Tribes carrying out ISDEAA agreements. Newly recognized Indian Tribes that seek to enter into ISDEAA contracts and funding agreements with the BIA and the IHS are eligible for full CSCs on the same basis as other Tribes even though the Federal agencies may never have provided direct services to these Tribes or their members. ISDEAA's CSC requirement is based on a Tribe's administrative needs associated with the Tribe performing PSFAs with Federal funds, not the agency funding history or structure for providing such funds.
Tribes carrying out self-governance programs face challenges paying for administrative costs that come along with running programs when CSCs are not fully funded. Administrative overhead costs are “mandatory” costs that Tribes must incur to properly account for and expend Federal funds. Tribes should not have to use their formula program funds or limited Tribal funds to cover such mandatory costs; this reduces the funds available to operate the programs Tribes administer under self-governance.
If the Department does not authorize the addition of CSC funds to assist the Tribe in carrying out the Tribe's PSFAs, Tribal representatives assert that the final rule should remain silent on the issue so that, should CSCs be determined to apply to the Program in the future, such funds can be added without changes to the rule.
The Department acknowledges that, except to the extent there are conflicts, 25 U.S.C. 5325(a) is made applicable to the Program by operation of Section 207(
Even absent a conflict, Tribes carrying out compacts and funding agreements under the Program would not incur CSCs. CSCs ensure that a Tribe does not experience diminution in program resources when PSFAs are transferred from the Federal Government to Tribal operation. Tribes carrying out their Tribal PSFAs with Department funding do not risk diminishing their program resources due to their participation in the Program because the Department never administered the activities to begin with. When Tribes enter the Program, they will not assume operation of a transportation program from the Federal Government and will not incur additional expenses associated with activities previously performed by the Federal Government for the benefit of Tribes or on their behalf. In the context of DOT's formula funding for Tribes, the funds appropriated for transfer to Tribes are either Tribal shares or residual agency funds to perform inherent Federal functions such as program management and oversight. The competitive and discretionary grant programs are not programs that the Department previously performed and therefore CSC funding is not necessary to prevent a diminution in the competitive and discretionary grant program. Rather, these programs contemplate that Tribes would use a portion of the funds to cover administrative obligations, and the funding limitation in 23 U.S.C. 207(h) requires that the funds allocated to Tribes be used to offset any administrative obligations.
The Department administers two programs that solely benefit Tribes and that allocate funds to Tribes under a funding formula: The Tribal Transportation Program and the Tribal Transit Program. The Department does not plan, conduct, and administer a program or service that the Federal Government would have otherwise provided directly. Rather, the Department transfers funds to Tribes and authorizes them to plan, conduct, and administer the funds to deliver Tribal programs and services in accordance with their needs and priorities. The Department's administration of these programs is limited to program management and oversight, and other inherent Federal functions. The vast majority of other Departmental funding programs are non-formula, competitive and discretionary grant programs that are not solely for the benefit of Tribes and do not provide CSCs for non-Tribal recipients. Therefore, CSCs would not apply even if 25 U.S.C. 5325(a) were not in conflict with Section 207.
Nevertheless, Tribes may be able to recover some funding for the indirect costs they incur while administering a grant from the Department transferred in a funding agreement on the same basis as any other grantee. The payment of indirect costs would be governed by the Federal cost principles that apply to grants programs, as well as any applicable caps on indirect cost funding. To be clear, certain costs that Tribes seek to recover as CSCs under the TTSGP are generally available as an eligible and allocable expense of both DOT formula programs. Under these programs, Tribal recipients may use Federal financial assistance for eligible planning, operating, and capital expenses. Tribes may also use program funds for pre-award, startup, direct, indirect, and program oversight costs. However, this does not mean that additional funds have been authorized or appropriated for these expenses, and
The Tribal representatives and the Department disagree on whether the Department must enter into a lease with a Tribe when it requests to use a facility for the administration and delivery of services under a TTSGP funding agreement. Section 207(
Tribal representatives disagree with the preliminary finding that ISDEAA provisions regarding facility leaseback options conflict with Section 207. Tribes assert that the lack of appropriations to the Department to give effect to the leasing provision of 25 U.S.C. 5324(
The Department acknowledges that Section 207(
Currently, the Tribal Transportation Program and the Tribal Transit Program makes the construction or leasing of transportation facilities, including certain facility support costs, an eligible cost of each program's funds. Finally, the Department notes that additional funds have not been authorized or appropriated for these expenses, and there are no additional funds to provide to Tribes with facility lease-back and facility support costs. This is consistent with the funding mandate of Section 207(h).
The Tribal representatives object to the Department's inclusion of a requirement to exhaust administrative remedies for pre-award decisions (except appeals of the rejection of a final offer) before initiating a civil action against the Department in the U.S. District Courts. Tribal representatives argue that there is no statutory mandate in Section 207 or the incorporated provisions of the ISDEAA that requires a Tribe to exhaust administrative remedies before a Tribe may bring suit in Federal court. Regulations of the DOI and IHS, which implement titles I, IV and V of the ISDEAA, do not include an exhaustion provision; Tribes assert the Program should operate in the same way. Tribal representatives assert that Tribes may incorporate section 110 of the ISDEAA, 25 U.S.C. 5331, in a compact or funding agreement by operation of section 207(
In negotiating the disputes and administrative appeal provisions, the committee requested the drafters to develop a simple, easy to follow dispute resolution process. Accordingly, the Department proposes a two-step process for pre-award disputes by which all initial decisions would be made by a Chief Self-Governance Official and appealed to a hearing official appointed by the Office of the General Counsel. This requirement does not apply to appeals of the Department's denial of a final offer because Section 207 provides that a Tribe may proceed directly to U.S. District Courts, in lieu of an administrative appeal. The Department devised an efficient, timely, and responsive process that would ensure a proper record for certain pre-award disputes. While Section 207 does not include an express exhaustion requirement, the Department interprets the Administrative Procedure Act and Supreme Court precedent to grant the Department discretion to impose a requirement that Tribes exhaust their administrative remedies before proceeding to the U.S. district courts. Additionally, the Department disagrees that 25 U.S.C. 5331 provides direct review in U.S. District Courts. Instead, 25 U.S.C. 5331 addresses the proper venue and relief that can be granted for civil actions filed pursuant to this section, but does not address timing of when these civil actions may be brought.
While not a disagreement issue, the Tribal representatives want to solicit public comment on three sections in Subpart E addressing the timing for the transfer of funds. The committee agreed that the rule would require the Department to transfer funds included in a funding agreement within 30 days of the apportionment of funds from the Office of Management and Budget to the Department or, for discretionary and competitive grants, within 30 days of inclusion of the grant in a funding agreement.
Tribes initially asserted that the transfers should occur within 10 days of the apportionment of funds by the Office of Management and Budget to the Department, or 10 days after execution of the funding agreement covering grants, unless the funding agreement provides otherwise, in accordance with 25 U.S.C. 5388(a). The Tribal representatives agreed to the 30-day requirements because in some instances the Department may be able to make such transfers within 10 days if the Department's financial management systems permit, but could not do so in all instances. Tribes urge the Department to identify any limitations in the Department's financial management systems that would prevent the timely transfer of funds to
The DOT, in consultation with the Office of Management and Budget, has determined that this action does not constitute a significant regulatory action within the meaning of Executive Order (E.O.) 12866 or within the meaning of DOT regulatory policies and procedures. In addition, this action complies with the principles of E.O. 13563. After evaluating the costs and benefits of these proposed amendments, DOT anticipates that the economic impact of this rulemaking would be minimal. Tribes would not be required to participate in the TTSGP, so any costs associated with implementation would be voluntarily assumed by the Tribes. The proposed rule would enable Indian Tribes to exert greater control and decision-making authority over the administration of funds awarded under other statutorily authorized formula fund and competitive or discretionary grant programs eligible for inclusion in the program. The rule describes the process and procedures for negotiating compacts and annual funding agreements with Tribes and intertribal consortia. The rule would not impose a compliance burden on the economy generally, does not introduce any new funds into the stream of commerce, and does not adversely affect in any material way the economy, productivity, competition, jobs, the environment, public health or safety. Finally, this proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866. For additional information about the costs and benefits of this rulemaking, please see the Regulatory Impact Analysis, which is available in the Docket.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 5 U.S.C. 60l-612), DOT has evaluated the effects of this proposed rule on small entities, such as local governments and businesses. Based on the evaluation, the Department anticipates that this action would not have a significant economic impact on small entities. The Department only foresees this rule having an impact on the Federal Government and Indian Tribes, which are not considered to be small entities for purposes of this Act. The DOT certifies that this document will not have a significant economic effect on a substantial number of small entities.
The DOT has determined that this proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The actions proposed in this NPRM would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $151 million or more in any one year (when adjusted for inflation) in 2012 dollars. In addition, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have the authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The funding programs subject to this rulemaking permit this type of flexibility.
The DOT has analyzed this NPRM under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The DOT does not anticipate that this proposed action would affect taking of private property interests or otherwise have taking implications under E.O. 12630.
The DOT has analyzed this NPRM in accordance with the principles and criteria contained in E.O. 13132. This NPRM would impact Tribal governments, but there is no federalism impact on the relationship or balance of power between the United States and Indian Tribes affected by this action. The DOT has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The DOT has also determined that this action would not preempt any State law or regulation, or affect the States' ability to discharge traditional State governmental functions.
This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 to minimize litigation, eliminate ambiguity, and reduce burden.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
The Department has analyzed the environmental impacts of this final rule pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
The Department has analyzed this NPRM under E.O. 13175, and has determined that because the NPRM would uniquely affect Tribal governments, it would follow departmental and Administration procedures in consulting with Tribal governments on the NPRM. We have
The Department initiated a negotiated rulemaking process, with both Tribal and Federal representatives, which the Department asserts fulfills its obligations to consult, as appropriate. The results of these ongoing negotiated rulemaking meetings were periodically reported and discussed in other Federal and Tribal fora. The Tribal and Federal representatives reached consensus on the rule text and Preamble, except for the four areas of disagreement discussed above. The DOT will continue to seek the input of Tribes through the comment period and until publication of the Final Rule.
The DOT has analyzed this proposed action under E.O. 13045. The DOT certifies that this proposed action would not cause an environmental risk to health or safety that may disproportionately affect children.
A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Grant programs—transportation, Grant programs—Indians, Indians.
23 U.S.C. 207.
(a) The regulations in this part implement the Tribal Transportation Self Governance Program required by 23 U.S.C. 207 and set forth rules for compacts and funding agreements negotiated between the Department and eligible Tribes under the Program. Funding agreements may contain funds as set forth in 23 U.S.C. 207(d)(2)(A) and § 29.400.
(b) The Department prepared and issued these rules pursuant to 23 U.S.C. 207(n) with the active participation and representation of Tribes, consortia, Tribal organizations, and individual Tribal members, consistent with the negotiated rulemaking procedures.
It is the Department's policy to:
(a) Recognize the unique government-to-government relationship with Tribes, including the right of Tribes to self-government, and to support Tribal sovereignty and self-determination;
(b) Encourage Tribes to participate in the Program;
(c) Affirm and enable the United States to fulfill its obligations to Tribes under treaties and other laws, and to ensure the continuation of the trust responsibility of the United States to Tribes and Indians that exist under treaties, other laws, and Executive orders;
(d) Interpret Federal laws and regulations to facilitate the inclusion of eligible funds in funding agreements under the Program to carry out Tribal PSFAs, except as otherwise provided by law;
(e) Consult with Tribes directly and meaningfully on policies that have Tribal implications and affect the Program;
(f) Acknowledge that PSFAs performed by Tribes are an exercise of Tribal self-determination and self-governance; and that Tribes are responsible for day-to-day operation of PSFAs carried out under the Program, and accept responsibility and accountability for the use of funds and satisfactory performance consistent with the terms of funding agreements; and
(g) Liberally construe this part to effectuate 23 U.S.C. 207 for the benefit of Tribes participating in the Program.
(a) Nothing in this part requires a Tribe to apply to participate in the Program.
(b) A Tribe's decision to participate in the Program does not:
(1) Affect, modify, diminish, or otherwise impair the sovereign immunity from suit enjoyed by the Tribe;
(2) Terminate, waive, modify, or reduce the trust responsibility of the United States to the Tribe or individual Indians; or
(3) Reduce the amount of the Tribe's formula or discretionary funding from the Department or impair the Tribe's ability to obtain funding from another Federal program.
A Tribe's performance under the Program is not subject to any Departmental circular, policy, manual, guidance, or rule, except for this part, unless the Tribe and Department otherwise negotiate and agree in the compact or funding agreement.
The Department will carry out the Program, including making eligibility determinations; negotiating compacts and funding agreements with Tribes; overseeing compliance with Department requirements; and otherwise administering and implementing the Program consistent with this Part. As provided in § 29.402, Tribes are responsible for day-to-day management of the Tribe's PSFAs consistent with the compact and funding agreement.
Yes. The Department must consult with Tribes on matters relating to the Program. The Department will carry out
This Program does not terminate existing authority for a Tribe to enter into agreements with the Federal Highway Administration, or contracts or agreements with the Department of the Interior, for the Tribal Transportation Program. A Tribe may maintain its current contracts or agreements, or include Tribal Transportation Program funds in a funding agreement under this Program. A Tribe may only have one agreement at a time for the same funds.
If more than one party purports to be the authorized representative of a Tribe during the negotiation of a compact, funding agreement, or amendment, the Department will notify the parties, consult with the Department of the Interior, defer negotiation or execution of any documents until such authority is clarified, and provide written notice to the parties of the Department's decision to defer.
Unless otherwise provided in this part:
(a)
(1) The Tribe requests participation in the Program by resolution or other official action by the governing body of the Tribe; and
(2) The Department determines that, over the 3 most recent fiscal years, the Tribe has demonstrated financial stability and financial management capability, and transportation program management capability in accordance with the criteria specified in 23 U.S.C. 207(b) and this section.
(b)
(2)
(3)
(i) Evidence demonstrating that the Tribe has financial management systems and standards that meet or exceed the standards set forth in §§ 29.506-29.508 of this part; and
(ii) An independent audit containing no uncorrected significant and material audit exceptions that covers the preceding 3 fiscal years of the Tribe's self-determination contracts or self-governance funding agreements with any Federal agency, TTP agreements, or a grant award from the Department.
(4)
(5)
(c)
(2) To assist the Department in determining transportation program management capability, a Tribe may submit evidence including, but not limited to:
(i) Documentation showing that the Tribe has previously or is currently directing or carrying out transportation services, projects, or programs under a self-determination, self-governance, or TTP Agreement, or a grant award with the Department.
(ii) Documentation showing the extent to which the Tribe previously received Federal funding and carried out management responsibilities relating to the planning, design, delivery, construction, maintenance, or operation of transportation-related projects, and whether they were completed;
(iii) Documentation that the Tribe has established and maintains, as appropriate, a staffed and operational transportation or transit program, department, commission, board, or official of any Tribal government charged by its laws with the responsibility for transportation-related responsibilities, including but not limited to, administration, planning, maintenance, and construction activities. This documentation should identify the Tribal personnel, job descriptions, and expertise necessary to administer or implement PSFAs that the Tribe proposes to assume under the
(iv) Documentation showing the completion of one or more transportation projects or operation of a program that is related to or similar to the PSFA the Tribe requests to include in a funding agreement negotiated between the Tribe and the Department. The Department will consider the number, complexity, and type of projects or programs that the Tribe describes as part of this determination. This documentation should address the substantive involvement of the Tribe in operating a transportation program, which may be demonstrated by:
(A) Involvement in the development of a completed and approved highway safety plan;
(B) Involvement in the development of a completed and approved plans, specifications and estimates design package for one or more transportation projects to be carried out with available funding;
(C) Involvement in the delivery of a completed and approved transportation construction project using Federal or non-Federal funds;
(D) Oversight or operation of a public transit project or public transit system;
(E) Oversight or operation of a transportation maintenance system; or
(F) Other information that evidences the transportation program management capabilities of the Tribe.
(4)
(d)
(2) Within 90 days of receipt of a Tribe's submission of its financial management systems and standards pursuant to paragraphs (b)(3)(i) and (b)(4)(i), the Department will notify the Tribe whether the systems and standards are sufficient to meet the standards set forth in §§ 29.506 through 29.508 of this part.
(3) Within 120 days of receipt of an initial submission, the Department will issue its determination of a Tribe's eligibility to participate in the Program. If the Tribe provides additional evidence at the Department's request to complete the application, the Department will have up to an additional 45 days to issue its determination of the Tribe's eligibility to participate in the Program. The determination will constitute final agency action which the Tribe may appeal in accordance with §§ 29.904 through 29.911.
After the Department notifies a Tribe in writing that it is eligible to participate in the Program pursuant to § 29.100, the Tribe must submit a written request to the Chief Self-Governance Official to begin negotiating a compact, funding agreement, or amendment. The Tribe may send the request to
When a Tribe expresses its interest in negotiating a compact, funding agreement, or amendment, the written request need only request that the Department enter into negotiations for a compact, funding agreement, or amendment. To the degree the Tribe has the following information available to it, the request may include, as appropriate:
(a) Whether the Tribe wants to negotiate a compact, funding agreement, or amendment;
(b) The funding programs that the Tribe wants to include in the funding agreement or amendment;
(c) The terms the Tribe wants to include in the compact, funding agreement, or amendment;
(d) Any information or technical assistance the Tribe needs from the Department to assist in pursuing the negotiation process; and
(e) The Tribal official with authority to negotiate on behalf of the Tribe, the designated Tribal contact, relevant contact information, and, if applicable, the name and contact information of an attorney authorized to represent the interests of the Tribe in the negotiation.
Within 15 days of receipt of a Tribe's written request, the Department will notify the Tribe in writing of the identity of the designated representative(s) of the Department who will conduct the negotiation and, to the extent feasible, will provide to the Tribe the information requested by the Tribe consistent with § 29.102(d).
The Department and the Tribe do not have to follow a specific process when negotiating compacts, funding agreements, and amendments. The Department and the Tribe should cooperate to develop a plan to address each issue subject to negotiation and provide the representatives an opportunity to address the Tribal proposals, legal or program issues of concern, the time needed to complete the negotiations, and the development of a term sheet.
Unless the Department and the Tribe agree otherwise, negotiations will commence within 60 days of the Department's receipt of the Tribe's written request to negotiate a compact, funding agreement, or amendment. The Department and the Tribe should make every effort to conclude negotiations within 90 days from the date on which negotiations commence, unless the parties agree to extend the time period for negotiations. Negotiations may proceed by electronic mail, teleconferences, or in-person meetings.
(a) The parties should collaborate and provide a clear explanation of their positions and interests. Each party should provide timely and specific responses to proposals presented during negotiations in order to conclude negotiations as soon as possible within the period provided in § 29.105.
(b) In negotiating the applicable construction, design, monitoring, or health and safety requirements that apply to the PSFAs the Tribe carries out using funds included in a funding agreement, along with the other terms set forth in § 29.307, the parties should cooperate and will prioritize the reduction of administrative requirements on the Tribe when
(c) The parties should conduct the negotiations in order to reach agreement on as many items as possible, and to refine unresolved issues in order to avoid disputed terms. The negotiations should conclude with mutually agreed upon terms and conditions. If any unresolved issues remain, a Tribe may submit a final offer to the Department under subpart C of this part.
The Department and the Tribe should resolve disagreements by mutual agreement whenever possible. If the Tribe and the Department are unable to reach agreement by the agreed upon date for completing negotiations, the Tribe may request to participate in an alternative dispute resolution process pursuant to § 29.901, or it may submit a final offer to the designated Department representative in accordance with subpart C of this part.
The parties may continue negotiations after the Tribe submits a final offer by mutual agreement, and may execute the remaining parts of the compact, funding agreement, or amendment consistent with § 29.213.
It is the mutual obligation of the Department and the Tribe to draft the compact, funding agreement, or amendment. Either party may offer to prepare the initial draft for the other party's review.
This subpart explains the final offer process for resolving, within a specific timeframe, disputes that may develop in negotiation of a compact, funding agreement, or amendment.
If the Department and the Tribe are unable to agree, in whole or in part, on the terms of a compact, funding agreement, or amendment, the Tribe may submit a final offer to the Department.
(a) A Tribe must submit a written final offer to the Department's designated representative and the Chief Self-Governance Official to
(b) The document should be separate from the compact, funding agreement, or amendment and clearly identified as a “Final Offer—Response due within 45 days of receipt.”
A final offer must contain a description of the disagreement between the Department and the Tribe, the Tribe's final proposal to resolve the disagreement, including any draft proposed terms to be included in a compact, funding agreement or amendment, and the name and contact information for the person authorized to act on behalf of the Tribe. If the final offer is insufficient for the Department to make a decision, the Department will notify the Tribe and request additional information. A request for more information has no effect on deadlines for response.
The Department has 45 days to respond to the final offer. The 45-day review period begins on the date the Chief Self-Governance Official receives the final offer.
Within 10 days of the Chief Self-Governance Official receiving the final offer, the Department will send the Tribe an acknowledgement of the final offer, together with documentation that indicates the date on which the Chief Self-Governance Official received the final offer. The Department's failure to send the acknowledgement does not constitute approval of the final offer.
The Department may request an extension of time before the expiration of the 45-day review period. The Tribe may either grant or deny the Department's request for an extension. Any grant of extension of time must be in writing and signed by a person authorized by the Tribe to grant the extension before the expiration of the 45-day review period.
The final offer is accepted by operation of law if the Department takes no action within the 45-day review period (or any extensions thereof).
Once the Department accepts the Tribe's final offer or the final offer is accepted by operation of law, the Department must add the terms of the Tribe's final offer to the compact, funding agreement, or amendment and transfer funds, if appropriate, no later than 30 days after the apportionment of such funds by the Office of Management and Budget to the Department.
The Department may reject a Tribe's final offer for any of the following reasons:
(a) The amount of funds proposed in the final offer exceeds the applicable funding level to which the Tribe is entitled;
(b) The subject of the final offer is an inherent Federal function that cannot legally be delegated to a Tribe;
(c) Carrying out the PSFA would result in significant danger or risk to public health or safety; or
(d) The Tribe is not eligible to participate in self-governance under section 23 U.S.C. 207(b).
The Department must reject a final offer by providing written notice to the Tribe based on the criteria in § 29.209 no more than 45 days after receipt of a final offer by the Chief Self-Governance Official, or within a longer time period as agreed to by the Tribe consistent with this subpart. The notice must explain the basis for the rejection of the final offer.
Upon receiving a final offer, the Department must provide technical assistance to overcome the objections stated in the Department's rejection of a final offer.
A Tribe may appeal the rejection of a final offer in accordance with §§ 29.904 through 29.911.
If a Tribe appeals the rejection of a final offer, the parties may execute and make effective the remaining provisions of the compact, funding agreement, or amendment that are not subject to appeal.
A compact only includes the general terms that govern a Tribe's participation in the Program and such other terms as the parties mutually agree that will continue to apply from year to year, and affirms the government-to-government relationship between the Tribe and the Department. Such terms include the authority, purpose, and obligations of the Tribe and the Department. The written compact memorializes matters on which the Department and the Tribe agree. Language addressing disagreement between the Department and the Tribe will not be included in the compact.
A Tribe must have a compact in place to participate in the Program. A compact must be in effect between the Department and the Tribe before the Tribe may enter into a funding agreement with the Department. The Tribe may negotiate a compact at the same time it is negotiating a funding agreement, so long as the compact is executed prior to or concurrent with the funding agreement.
A compact remains in effect until it is terminated by mutual written agreement, retrocession, or reassumption under this part.
A consortium of two or more Tribes may participate in the Program on the same basis as an individual Tribe. A consortium may comprise a combination of one or more Tribes that may or may not be independently eligible under § 29.100, so long as the consortium is eligible.
A compact may be amended at any time by the mutual written agreement of the Tribe and the Department.
Concurrent with or after a Tribe has entered into a compact with the Department, the Department and Tribe will negotiate a funding agreement, consistent with §§ 29.101 through 29.109. The funding agreement is the legally binding written agreement that identifies the funds a Tribe will use to carry out its PSFAs, and sets forth the terms and conditions under which the Tribe will receive the funds.
(a) The duration of a funding agreement is one year unless the parties negotiate a multiyear funding agreement or, for an initial funding agreement, a partial year agreement.
(b) Each funding agreement will remain in full force and effect until the parties execute a subsequent funding agreement, except when:
(1) A Tribe provides notice to the Department that it is withdrawing or retroceding funds for the operation of one or more PSFAs (or portions thereof) identified in the funding agreement;
(2) The Department terminates the funding agreement under 23 U.S.C. 207(f)(2); or
(3) The parties agree otherwise.
A funding agreement must set forth the following:
(a) The funds the Department will provide, including those funds provided on a recurring basis;
(b) The PSFAs the Tribe intends to carry out using the funds;
(c) The general budget category assigned to the funds;
(d) The time and method of transfer of funds;
(e) The responsibilities of the Department and the Tribe;
(f) Any applicable statutory limitations on the use of funds;
(g) Any statutory or negotiated reporting requirements;
(h) Any applicable Federal or federally approved design, construction, and monitoring standards, unless the Tribe's design, construction, and monitoring standards are consistent with or exceed such standards;
(i) Other Federal health and safety requirements that apply to the funds included in the funding agreement, unless the Tribe provides adequate assurance that its relevant health and safety requirements are consistent with or exceed such requirements;
(j) Any other provision agreed to by the Tribe and the Department; and
(k) Provisions authorizing the Department to terminate the funding agreement (in whole or in part) and reassume the remaining funding for transfer as appropriate.
At a Tribe's request, the parties may incorporate into a compact or funding agreement any other provision of Title I of the Indian Self-Determination and Education Assistance Act, unless the Department determines there is a conflict between the provision and 23 U.S.C. 207. The Department will make the determination consistent with 23 U.S.C. 207(j).
If the Department and a Tribe agree, a funding agreement will include provisions pertaining to flexible financing and innovative financing. In that event, the Department and Tribe will establish terms and conditions relating to the flexible and innovative financing provisions that are consistent with 23 U.S.C. 207(d)(2)(C).
A Tribe may redesign, consolidate, reallocate, or redirect funds included in the Tribe's funding agreement in any manner it considers to be in the best interest of the Indian community being served, subject to any statutory requirements specific to the funding program, provided that the funds are expended on projects identified in a transportation improvement program approved by the Department, where statutorily required, and used in accordance with the requirements in appropriations acts, title 23 of the U.S. Code, chapter 53 of title 49 of the U.S. Code, and any other applicable law. However, a Tribe must use any discretionary or competitive grant funds or 23 U.S.C. 202(a)(9) funds included in the funding agreement, for the purpose for which the funds were originally authorized.
A funding agreement may be amended by the mutual written agreement of the Department and the Tribe as provided for in the funding agreement. The Department will not revise, amend, or require additional terms in a new or subsequent funding agreement without the consent of the
When the Department and a Tribe execute a subsequent funding agreement, the provisions of such a funding agreement are retroactive to the end of the term of the preceding funding agreement.
A Tribe may elect to include in a funding agreement the following funds:
(a) Funds provided to the Tribe under the Tribal Transportation Program identified in 23 U.S.C. 202 in accordance with the statutory formula set forth in 23 U.S.C. 202(b);
(b) Any transit funds provided to the Tribe under 49 U.S.C. 5311;
(c) Funds for any discretionary and competitive grant administered by the Department awarded to the Tribe for a transportation program under title 23 of the U.S. Code or chapter 53 of title 49 of the U.S. Code;
(d) Funds for any other discretionary and competitive grant for a transportation-related purpose administered by the Department otherwise available to the Tribe; and
(e) Federal-aid funds apportioned to a State under chapter 1 of title 23 of the U.S. Code if the State elects to provide a portion of such funds to the Tribe for a project eligible under 23 U.S.C. 202(a)(9) or formula funds awarded to a State under 49 U.S.C. 5311 that are allocated to the Tribe by the State, and at the election of both the Tribe and State are designated for the direct obligation of funds to the Tribe.
(a) Subject to the terms of a funding agreement, the Department must transfer to a Tribe all the funds provided for in the funding agreement.
(b) The Department must provide funds for periods covered by a joint resolution adopted by Congress making continuing appropriations and authorization extensions, to the extent permitted by such resolutions. The Department will defer payment of funds to the Tribe if the period of continuing appropriations is less than 35 days.
(c) The Department will include funds in a funding agreement in the amount equal to:
(1) The sum of the funds that the Tribe would otherwise receive in accordance with a funding formula or other allocation method set forth in title 23 U.S.C. or 49 U.S.C. chapter 53; and
(2) Such additional amounts as the Department determines equal the amounts that would have been withheld, if any, for the costs of the Bureau of Indian Affairs to administer the program or project on behalf of the Tribe.
The Tribe is responsible for implementing the Tribe's PSFAs using the funds included in a funding agreement and for administering the funds in accordance with this part. In addition, the Tribe must carry out its PSFAs in accordance with the funding agreement, and all applicable statutes and regulations identified in the funding agreement.
When a funding agreement requires an annual transfer of funds to be made by the Department at the beginning of a fiscal year, or requires semiannual or other periodic transfers of funds to be made to the Tribe, the Department will make the first transfer no later than 30 days after the apportionment of such funds by the Office of Management and Budget to the Department, unless the funding agreement provides otherwise.
The Department must transfer any funds that were not paid in the initial lump sum payment (or initial periodic payment) within 30 days after the apportionment of such funds by the Office of Management and Budget to the Department, and the Department has determined any distribution methodologies, as applicable, and made other decisions regarding payment of those funds.
If the Department selects a Tribe for a discretionary or competitive grant, and the Tribe elects to include the grant funds in its funding agreement, the Department will transfer the funds to a Tribe in accordance with the terms of the Notice of Funding Opportunity or as the Department and the Tribe may agree. The Department will transfer these funds no later than 30 days after the Department and the Tribe execute a funding agreement or an amendment covering the grant.
The award of funds for a discretionary or competitive grant does not entitle a Tribe to receive the same amount of funds in subsequent years.
Funds awarded for discretionary and competitive grants do not entitle the Tribe to receive contract support costs, are not part of the amount required to be transferred by the Department pursuant to 25 U.S.C. 5325, and are not subject to the prohibition on the Department's ability to reduce funds in § 29.413(a)(4). However, a Tribe may use grant funds to cover overhead and administrative expenses associated with operation of the grant, as provided in the grant award.
A Tribe may retain interest earned on funds included in a funding agreement to carry out governmental or transportation purposes.
The period of availability for funds transferred to a Tribe in a funding agreement does not lapse, except where the Tribe receives funds pursuant to a discretionary or competitive grant award for which Congress authorizes a defined period of availability. After transfer to the Tribe, such funds will remain available until expended. If a Tribe elects to carry over funds from one fiscal year to the next, such carryover funds will not diminish the amount of formula funds the Tribe is authorized to receive under its funding agreement in that or any subsequent fiscal year.
A Tribe may use remaining funds from a competitive or discretionary grant included in a funding agreement, but only with written approval from the Department. The Department must determine that the use of such funds is consistent with the statutory requirements of the grant program, including purpose and time, and is for the project for which the grant was provided.
Notwithstanding any other provision of law, funds included in a compact and funding agreement are non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.
The Department may increase the funds included in the funding agreement if necessary to carry out the Program. However, the Tribe and the Department must agree to any transfer of funds to the Tribe unless otherwise provided for in the funding agreement.
At the request of a Tribe that has applied for a loan or other credit assistance from a State infrastructure bank or other financial institution to complete an eligible transportation-related project with funds included in a funding agreement, the Department will provide documentation in its possession or control to assist the Tribe.
The Department will not:
(a) Fail or refuse to transfer to a Tribe its full share of funds due under the program, except as required by Federal law;
(b) Withhold portions of such funds for transfer over a period of years;
(c) Reduce the amount of funds identified for transfer in a funding agreement to make funding available for self-governance monitoring or administration by the Department;
(d) Reduce the amount of funds required under the program in subsequent years, except pursuant to:
(1) A reduction in appropriations or change in the funding formula results from the previous fiscal year for the funds included in a funding agreement;
(2) A congressional directive in legislation or accompanying report;
(3) A Tribal authorization;
(4) A change in the amount of pass-through funds included in the funding agreement;
(5) A termination of the funding agreement (or portion thereof) due to a finding of gross mismanagement or imminent jeopardy pursuant to subpart I;
(6) Completion of a project, activity, or program for which competitive or discretionary grant funds were provided or expenditure of all competitive or discretionary grant funds authorized by the Department under separate statutory authorities for an eligible project, activity, or program; or
(7) A final decision by the Department pursuant to subpart I to terminate a compact and funding agreement (or portions thereof) due to gross mismanagement or imminent jeopardy.
(e) Reduce the amount of funds identified in a funding agreement to pay for Federal functions, including Federal pay costs, Federal employee retirement benefits, automated data processing, technical assistance, and monitoring of activities under the program, except that such prohibition is inapplicable when Congress authorizes the Department to set aside a portion of the funds for project monitoring and oversight related functions; or
(f) Reduce the amount of funds required under the Program to pay for costs of Federal personnel displaced by compacts and funding agreements.
The Prompt Payment Act, 39 U.S.C. 3901
(a) A Tribe must invest and manage funds included in a funding agreement as a prudent investor would, in light of the purpose, terms, distribution requirements, and applicable provisions in the compact and funding agreement. This duty requires the exercise of reasonable care, skill, and caution, and is to be applied to investments not in isolation, but in the context of the investment portfolio and as a part of an overall investment strategy, which should incorporate risk and return objectives reasonably suited to the Tribe. In making and implementing investment decisions, the Tribe has a duty to diversify the investments unless, under the circumstances, it is prudent not to do so.
(b) The Tribe must:
(1) Conform to fundamental fiduciary duties of loyalty and impartiality;
(2) Act with prudence in deciding whether and how to delegate authority and in the selection and supervision of agents; and
(3) Incur only costs that are reasonable in amount and appropriate to the investment responsibilities of the Tribe.
A Tribe does not have to continue performance of the Tribal Transportation Program (23 U.S.C. 202(b)) or the Tribal Transit Program (49 U.S.C. 5311(c)(1)) that requires an expenditure of funds in excess of the amount of funds included in a funding agreement. If at any time the Tribe has reason to believe that the total amount included in a funding agreement is insufficient, the Tribe must provide reasonable notice of such insufficiency to the Chief Self-Governance Official. If the Department does not increase the amount of funds included in the funding agreement for the Tribal Transportation Program or Tribal Transit Program, the Tribe may suspend performance of the program activity until such time as the Department transfers additional funds.
(a) A State may elect to provide a portion of Federal-aid funds apportioned to the State under chapter 1 of title 23 of the U.S. Code to an eligible Tribe for a project eligible under 23 U.S.C. 202(a).
(b) If a State provides such funds, the transfer may occur in accordance with 23 U.S.C. 202(a)(9), or the State may transfer the funds back to the Department, and the Department will transfer the funds to the participating Tribe through the Tribe's funding agreement.
(c) If a State provides such funds, the Tribe (and not the State) will be responsible for constructing and maintaining any projects carried out using the funds and for administering and supervising the projects and funds in accordance with 23 U.S.C. 207 during the applicable statute of limitations period related to the construction of the project.
(d) Contract support costs will not be made available to a Tribe in connection with any State funds transferred at the election of a State to the Tribe pursuant to 23 U.S.C. 202(a)(9) or funds awarded to a State pursuant to 49 U.S.C. 5311 that are transferred at the election of a State to FTA for the benefit of a Tribe. However, overhead and administrative expenses may be an eligible use of such funds.
The award of formula funds does not entitle a Tribe to receipt of contract support costs under 25 U.S.C. 5325(a). A funding agreement under this part will not provide additional funds for contract support costs to carry out PSFAs. While a Tribe is not entitled to additional funds for contract support costs, a Tribe may use a portion of its formula funds (§ 29.400(a) and (b)) for overhead and administrative expenses if such costs are reasonable, allowable, and allocable in accordance with 2 CFR part 200 and the applicable statutory and regulatory program requirements.
A Tribe is not entitled to enter into facility leases with the Department and receive facility support costs. A funding agreement under this part will not provide additional funds for facility leases and facility support costs to carry out PSFAs. However, facility leases and facility support costs may be an eligible and allowable use of funds a Tribe receives under a funding agreement.
A Tribe that meets the applicable thresholds under 2 CFR 200.501 must undertake an annual audit pursuant to the regulations set forth in 2 CFR part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, except to the extent that part exempts a Tribe from complying with the audit requirements.
A Tribe must submit any required audits to the Federal Audit Clearinghouse pursuant to the Office of Management and Budget procedures and provide prompt notice to the Department it has done so.
A Tribe must keep books, documents, papers, and records of funding, grants, and State-provided funds for 3 years from the date of submission of the Single Audit Act audit and provide access to the Department or the Comptroller General for audit and examination related to grants, contracts, compacts subcontracts, sub-grants, or other arrangements.
The agency or entity undertaking the examination or audit will be responsible for all costs associated with an audit or examination of Tribal records. Tribes are responsible to make records available during regular business hours, and may prevent removal of the records from Tribal offices. If an agency or entity undertaking the examination or audit requests that the Tribe make copies of records for its use, the Tribe may charge the examining agency reasonable per-page fees for photocopying or scanning of documents and records.
(a)
(1) Any right of action or other remedy (other than those relating to a criminal offense) relating to any disallowance of costs is barred unless the Department provides notice of such a disallowance within 365 days from receiving any required annual audit report. The notice must set forth the right of appeal and hearing in accordance with §§ 29.912 through 29.923.
(2) To calculate the 365-day period, an audit report is deemed received by the Department on the date of electronic submission to the Federal Audit Clearinghouse. The Department has 60 days after receiving the audit report to give notice to the Tribe of its determination to reject an audit report as insufficient due to non-compliance with the applicable provisions of 2 CFR part 200 or any applicable statute.
(b)
(a) A Tribe must apply the applicable cost principles of the Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR part 200, except as modified by:
(1) 25 U.S.C. 5325(k), which sets forth certain categories of allowable uses of funds that a Tribe may include in a funding agreement provided that such use supports implementation of the PSFA.
(2) Other provisions of Federal law; or
(3) Any subsequent exemptions granted by the Office of Management and Budget.
(b) The Department may not require other audit or accounting standards.
(a)
(b)
(c)
(d)
The following general minimum standards apply to a Tribe's financial management systems when carrying out a compact and funding agreement. The fiscal control and accounting procedures of a Tribe must be sufficient to:
(a) Permit preparation of reports required by the compact, funding agreement, and this part; and
(b) Permit the tracing of program funds to a level of expenditure adequate to establish that the funds have not been used in violation of any restrictions or prohibitions contained in any statute or provision of 2 CFR part 200 that applies to the receipt and use of the funds included in the compact and funding agreement.
To meet the general minimum standards of § 29.507, the financial management system of a Tribe must include the following specific minimum requirements:
(a)
(b)
(c)
(d)
(e)
(a) Each contract carried out using funds included in a funding agreement must, at a minimum:
(1) Be in writing;
(2) Identify the interested parties, their respective roles and responsibilities, and the purposes of the contract;
(3) State the work to be performed under the contract;
(4) State the process for making any claim, the payments to be made, and the terms of the contract; and
(5) State that it is subject to 25 U.S.C. 5307(b) to the extent identified in § 29.525.
(b) A Tribe that chooses to use a procurement method that is not provided for in its established procurement management standards in the delivery of a Tribal transportation project must submit the request to deviate from these standards to the Department for review and approval in accordance with § 29.515. The deviation request must specify the procurement method that the Tribe proposes to use and the project to which such method will be applied.
(a)
(1) Where title vests in the Tribe, in accordance with Tribal law and procedures; or
(2) In the case of a consortium, according to the internal property procedures of the consortium.
(b)
(c)
(1) Personal property and rolling stock with an acquisition value in excess of $5,000 per item;
(2) Sensitive personal property, which is all personal property that is subject to theft and pilferage, as defined by the Tribe; and
(3) Real property.
(d)
(e)
(1) Conduct periodic, physical inventories at least once every 2 years and reconcile such inventories with the Tribal internal property and accounting records;
(2) Prevent loss or damage to property; and
(3) Ensure that property is used by the Tribe to carry out activities under a funding agreement until the Tribe declares the property excess to the needs of the PSFAs carried out by the Tribe under the funding agreement, consistent with the property management system of the Tribe.
(f)
(g)
(h)
A Tribe must maintain records and provide Federal agency access to those records as provided in 25 U.S.C. 5386(d) and the statutory requirements of the funds included in a funding agreement.
(a) Except to the extent that a Tribe specifies otherwise in its compact or funding agreement, the records of the Tribe retained by the Tribe will not be considered Federal records for purposes of chapter 5 of title 5, U.S. Code.
(b) Tribal records submitted to the Department are considered Federal records for the purposes of the Freedom of Information Act and Federal Privacy Act. If a Tribe provides information to the Department that the Tribe considers to be trade secret, or confidential commercial or financial information, the Tribe must identify it as such. The Department will not disclose the information to the public, except to the extent required by law. In the event the Department receives a FOIA request for the information, the Department will follow the procedures described in its FOIA regulations at 49 CFR part 7.
After 30 days advance written notice from the Department, a Tribe must provide the Department with reasonable access to such records to enable the Department to meet its minimum legal recordkeeping system and audit requirements.
A Tribe must keep books, documents, papers, and records of funding, grants, and State-provided funds for 3 years from the date of submission of the Single Audit Act audit such that the Department or the Comptroller General may have access to the records for audit and examination related to grants, contracts, compacts subcontracts, sub-grants, or other arrangements.
When procuring property or services with funds included in a funding agreement, a Tribe must have standards that conform to the procurement standards in this subpart. If a Tribe relies upon procurement standards different than those described in § 29.516, it must identify the standards it will use in a proposed waiver in the initial negotiation of a funding agreement or as a waiver request to an existing funding agreement. The Tribe must submit the request to the Department in accordance with § 29.535.
A Tribe must follow the minimum procurement standards set forth below when procuring property or services with funds included in a funding agreement.
(a)
(2) A Tribe must maintain written standards of conduct governing the performance of its employees who award and administer contracts paid for using funds transferred to the Tribe under a funding agreement.
(i) An employee, officer, elected official, or agent of a Tribe must not participate in the selection, award, or administration of a procurement supported by Federal funds if a conflict of interest, real or apparent, as defined in the conflict of interest policies of the Tribe, would be involved.
(ii) Employees, officers, elected officials, or agents of a Tribe, or of a subcontractor of the Tribe, must not solicit or accept gratuities, favors, or anything of monetary value from contractors, potential contractors, or parties to sub-agreements, except that the Tribe may exempt a financial interest that is not substantial or a gift that is an unsolicited item of nominal value.
(iii) The standards must also provide for penalties, sanctions, or other disciplinary actions for violations of the procurement standards.
(3) A Tribe must review proposed procurements to avoid buying unnecessary or duplicative items and ensure the reasonableness of the price. The Tribe should consider consolidating or breaking out procurement to obtain more economical purchases. Tribes are encouraged to realize economies of scale in the procurement of goods, services, and supplies under this part, including the negotiation of cooperative agreements with other public authorities. Where appropriate, the Tribe must compare leasing and purchasing alternatives to determine which is more economical.
(4) A Tribe must conduct all major procurement transactions that exceed the simplified acquisition threshold set forth in 2 CFR 200.88 by providing full and open competition, to the extent necessary to assure efficient expenditure of contract funds and to the extent feasible in the local area.
(i) Consistent with 2 CFR 200.88, a Tribe may develop its own definition for a simplified acquisition threshold.
(ii) A Tribe may apply to any procurement award the Indian preference requirements for wages and grants contained in 25 U.S.C. 5307(b).
(5) A Tribe must make procurement awards only to responsible entities with the ability to perform successfully under the terms and conditions of the proposed procurement. In making this judgment, the Tribe will consider such matters as the contractor's integrity, its compliance with public policy, its record of past performance, and its financial and technical resources.
(6) A Tribe must maintain records on the significant history of all major procurement transactions. These records must include, but are not limited to, the rationale for the method of procurement, the selection of contract type, the contract selection or rejection, and the basis for the contract price.
(7) A Tribe is solely responsible, using good administrative practice and sound business judgment, for processing and settling all contractual and administrative issues arising out of a procurement. These issues include, but are not limited to, source evaluation, protests, disputes, and claims.
(i) The settlement of any protest, dispute, or claim will not relieve the Tribe of any obligations under a funding agreement.
(ii) Violations of law must be referred to the Tribal or Federal authority having proper jurisdiction.
(b)
A Tribe's contractors are responsible for complying with Federal laws and regulations. Contracts between a Tribe and its contractors should inform contractors that the contract is carried out using funds transferred to the Tribe in a funding agreement, and that the contractors and its subcontractors are responsible for identifying and ensuring compliance with applicable Federal laws and regulations. The Department and the Tribe may, through negotiation, identify all or a portion of such requirements in the funding agreement and, if so identified, these requirements should be identified in the contracts the Tribe awards using funds included in a funding agreement.
A Tribe and its employees may use Federal supply sources (including lodging, airline, interagency motor pool vehicles, and other means of transportation) to the same extent as if the Tribe were a Federal agency. The Department will assist the Tribes, to the extent feasible, to resolve any barriers to full implementation.
(a) A Tribe must provide reports mandated by statute associated with the funds included in the funding agreement. In accordance with § 29.307, the funding agreement will list these reporting requirements. A Tribe will cooperate with the Department to assist it in complying with its statutory reporting requirements. No additional reporting will be required.
(b) Notwithstanding paragraph (a) of this section, if the Tribe includes funds for a discretionary or competitive grant in a funding agreement, the parties will negotiate the appropriate reporting requirements to include in the funding agreement.
At the request of a Tribe, the Department will permit a Tribe to use and maintain existing facilities, equipment therein or appertaining thereto, and other personal property, if applicable, owned by the Government within the Department's jurisdiction, subject to terms and conditions agreed to by the Department and the Tribe. The requested facilities, equipment, or property must be used to carry out the Tribe's PSFAs under the compact and funding agreement. Such facilities, equipment, or other personal property will be eligible for replacement, maintenance, and improvement using funds included in a funding agreement, or the Tribe may expend its own funds. The Department does not have any additional funding sources for replacement, maintenance, or improvement of such facilities, equipment, other personal property. The Department will exercise discretion in a way that gives the maximum effect to the request of a Tribe to use such facilities, equipment, or property.
A Tribe may acquire any surplus or excess property for use in the performance of the compact and funding agreement consistent with the procedures established by the General Services Administration. The Tribe must notify the Chief Self-Governance Official of the surplus or excess property it proposes to acquire and the purpose for which it will be used in the performance of the compact or funding agreement. If the Department participates in the acquisition by the Tribe of any excess or surplus Federal property, the Department will expeditiously process the request and assist the Tribe in its acquisition to the extent feasible and exercise discretion in a way that gives maximum effect to the Tribe's request for donation of the excess or surplus Federal property. When the Department's participation is required, the Department should expeditiously request acquisition of the property from General Services Administration or the holding agency, as appropriate, by submitting the necessary documentation prior to the expiration of any “freeze” placed on the property by the Tribe or the Department on the Tribe's behalf. The Tribe must take title to any property acquired pursuant to this section. Such surplus or excess property will be eligible for replacement, maintenance, and improvement using funds included in a funding agreement, or the Tribe may expend its own funds. The Department does not have any additional funding sources for replacement, maintenance, or improvement of such surplus or excess property.
The Tribe must use any property acquired under this section in a manner consistent with the justification submitted at acquisition. The Tribe should notify the Chief Self-Governance Official whenever use of the property changes significantly and upon disposal or sale.
If a compact or funding agreement (or portion thereof) is retroceded, reassumed, terminated, or expires, the Tribe retains title to the property purchased with funds under any compact or funding agreement or excess for surplus Federal property donated under the Program if it is valued at $5,000 or less. If the value of the property is over $5,000 at the time of retrocession, withdrawal, or reassumption, title to such property may revert to the Department at the Department's discretion.
Upon the written request of a Tribe, and to the extent feasible, the Department will provide technical assistance, including periodic program reviews, to assist a Tribe improve its performance in carrying out the Program.
Wage and labor standards of the Davis-Bacon Act do not apply to employees of a Tribe. However, Davis Bacon wage rates apply to all Tribal contractors and subcontractors.
To the greatest extent feasible, any contract, subcontract, grant, or subgrant under a compact and funding agreement must give preference for employment and training, and the award of subcontracts and sub-grants, to Indians, Indian organizations, and Indian-owned economic enterprises, as defined in 25 U.S.C. 1452.
To the extent provided in applicable Federal law, Tribal law governs Indian preference policies in the performance of a compact and funding agreement under the Program. When a compact or funding agreement is intended to benefit one Tribe, the Tribal employment or contract preference laws adopted by such Tribe will govern with respect to the administration of the compact and funding agreement.
(a) The Department must meet the requirements of applicable Federal environmental and cultural resource laws, such as the National Environmental Policy Act and the National Historic Preservation Act, for a proposed project under the Program.
(b) The Secretary has delegated environmental and cultural resource compliance responsibilities to the Operating Administrations, as appropriate. As such, an Operating Administration will serve as the lead agency responsible for final review and approval of environmental documents, and any associated environmental determinations and findings for a proposed project under the Program. The Secretary, as delegated to the Operating Administrations, is also responsible for making determinations and issuing approvals in accordance with Section 4(f) (23 U.S.C. 138 and 49 U.S.C. 303), as applicable. Tribes may consult with the Chief Self-Governance Official to determine which Operating Administration should serve as the lead agency.
(c) If the Department is conducting the environmental review process for a proposed project under the Program, the Tribe must assist the Department to satisfy the requirements of applicable Federal environmental and cultural resource laws.
(d) A Tribe may manage or conduct the environmental review process for a proposed project under the Program and may prepare drafts of the appropriate environmental review documents for submission to the Department.
(1) A Tribe may follow its own environmental review procedures if the procedures and documentation also satisfy the Federal environmental review requirements applicable to the project. A Tribe should work with the Operating Administration serving as lead agency to ensure the Tribal process will satisfy all applicable Federal environmental review requirements.
(2) The Operating Administration serving as lead agency must determine that the process and documentation satisfy the applicable Federal environmental review requirements.
(e) As resources permit and at the request of a Tribe, the Department will provide advice and technical assistance to the Tribe to assist in the management of the Federal environmental review process and preparation of environmental documents.
(f) Unless prohibited by law, a Tribe may use funds included in a funding agreement to pay for environmental review activities.
(a) Section 314 of Public Law 101-512 and 25 U.S.C. 5396(a) incorporated by 23 U.S.C. 207(
(b) Contractors, subcontractors, or sub-recipients of a Tribe are not subject to the terms and conditions of FTCA. The Tribe may use the regulations set forth in 25 CFR part 900, subpart M, as guidance on the Tribe's rights and responsibilities under the FTCA. Accordingly, the Tribe must include, in any contract entered into with funds provided under a compact and funding agreement, a requirement that contractors, sub-contractors, or sub-recipients maintain applicable insurance coverage, such as workers compensation, auto, and general liability insurance, consistent with statutory minimums and local industry standards.
(a) Immediately after receiving a claim or a summons and complaint filed under the FTCA, the Tribe must notify the Chief Self-Governance Official at
(b) The Tribe, through a designated tort claims liaison assigned by the Tribe, must assist the Department in preparing a comprehensive and factually based report, which will inform the Department's report to the U.S. Department of Justice.
(c) The Tribe's designated tort claims liaison must immediately provide the following significant details of the event and include, as appropriate and to the extent within their knowledge, possession, or control:
(1) The date, time, and exact place of the accident or incident;
(2) A concise and complete statement of the circumstances of the accident or incident;
(3) The names and addresses of Tribal or Federal employees involved as participants or witnesses;
(4) The names and addresses of all other eyewitnesses;
(5) An accurate description of all Federal, Tribal, and privately owned property involved, and the nature and amount of damage, if any;
(6) A statement as to whether any person involved was cited for violating a Federal, State, or Tribal law, ordinance, or regulation;
(7) The Tribe's determination as to whether any of its employees (including Federal employees assigned to the Tribe) involved in the incident giving rise to the tort claim were acting within the scope of their employment in carrying out the funding agreement at the time the incident occurred;
(8) Copies of all relevant documentation, including available police reports, statements of witnesses, newspaper accounts, weather reports, plats, and photographs of the site or damaged property, that may be necessary or useful for the Department to determine the claim; and
(9) Insurance coverage information, copies of medical bills, and relevant employment records.
(d) The Tribe must cooperate with and provide all necessary assistance to the U.S. Department of Justice and the Department's attorneys assigned to defend the tort claim including, but not limited to, case preparation, discovery, and trial.
(e) If requested by the Department, the Tribe must make an assignment and subrogation of all the Tribe's rights and claims (except those against the Federal Government) arising out of a tort claim against the Tribe.
(f) If requested by the Department, the Tribe must authorize representatives of the Department to settle or defend any claim and to represent the Tribe in or take charge of any action. If the Federal Government undertakes the settlement or defense of any claim or action, the Tribe must provide all reasonable additional assistance in reaching a settlement or asserting a defense.
Terms about FTCA coverage are optional in a compact or funding
Subject to FTCA limitations, the FTCA covers employees of the Tribe who are not paid from compact and funding agreement funds as long as the services out of which the claim arose were performed in carrying out a compact and funding agreement under the Program.
Any aggrieved person may assert claims for alleged torts arising from activities performed in carrying out compacts and funding agreements under the Program.
The year the funding was provided has no effect on the application of the FTCA.
(a) A Tribe may request a waiver of a regulation promulgated under this part with respect to a compact or funding agreement. The Tribe must submit the request in writing to the Chief Self-Governance Official to
(b) Within 10 days of receipt of the waiver request, the Chief Self-Governance Official will send the Tribe an acknowledgement of the waiver request, together with a date-stamped cover sheet that indicates the date on which the Department received the waiver request.
(c) No later than 90 days after the date of receipt of a written request under paragraph (a) of this section, the Department must approve or deny the request in writing. If the application for a waiver is denied, the Department must provide the Tribe with the reasons for the denial as part of the written response.
(d) The Department will consider the following factors in making its decision on a waiver request:
(1) The extent to which the waiver provides flexibility to facilitate the implementation of the Program at the Tribal level;
(2) The extent to which the Tribe will benefit from the waiver;
(3) Whether the waiver is contrary to Federal law; and
(4) Whether the waiver is consistent with Federal transportation policy.
(e) If the Department does not approve or deny a request submitted under paragraph (a) of this section on or before the last day of the 90-day period, the request will be deemed approved by operation of law.
(f) A decision by the Department on a waiver request is a final agency action subject to judicial review under the Administrative Procedure Act.
A Tribe may fully or partially withdraw from a consortium in accordance with any applicable terms and conditions of a consortium agreement with the Tribe. The withdrawing Tribe must provide written notification to the consortium and the Department of its decision to withdraw.
A withdrawal becomes effective within the time frame specified in the resolution that authorizes the Tribe to withdraw from the consortium. In the absence of a specific time frame set forth in the resolution, such withdrawal becomes effective on:
(a) The earlier of 1 year after the date of submission of such request, or the date on which the funding agreement expires; or
(b) Such date as may be mutually agreed upon by the Department, the withdrawing Tribe, and the consortium that has signed the compact and funding agreement.
A withdrawing Tribe that is eligible for the Program under 23 U.S.C. 207(b) and § 29.100 may enter into a compact and funding agreement for its share of funds supporting those PSFAs that the Tribe will carry out, calculated on the same basis as the funds were initially allocated in the funding agreement of the consortium, unless otherwise agreed to by the consortium and the Tribe.
Unless otherwise agreed to by the consortium and the Tribe, the consortium must return to the Department all funds not obligated and expended by the consortium associated with the withdrawing Tribe when the withdrawing Tribe elects not to or is ineligible to enter into a compact under this part.
A Tribe may voluntarily retrocede (fully or partially) its PSFA under a compact and funding agreement under this Part. A Tribe may retrocede for any reason.
(a)
(b)
If the Department of the Interior determines that it provides the transportation services the Tribe intends to retrocede, the Department will notify the Tribe. The Tribe must return all remaining funds, less closeout costs, associated with those transportation services to the Department for transfer to the Department of the Interior.
If the Department of the Interior determines that it does not provide the
The retrocession becomes effective within the timeframe specified in the funding agreement. In the absence of a specified date, the retrocession becomes effective:
(a) On the earlier of 1 year after the date of the Tribe's submission of the request, or the date on which the funding agreement expires; or
(b) Such date mutually agreed upon by the Departments and the retroceding Tribe when the Department of the Interior has agreed to assume a retroceded PSFA.
Provided that a Tribe is eligible under § 29.100, retrocession will not adversely affect any future request by the Tribe to include funds from the same program in a compact or funding agreement.
Retrocession will not adversely affect future funding for the retroceded program. Future funding will be available to the Tribe at the same level of funding as if there had been no retrocession.
The Department may terminate and reassume a compact or funding agreement (or portion thereof) when the Department makes a specific finding, in writing, to a Tribe, that the Department has found that there is:
(a) Imminent jeopardy to a trust asset, natural resources, or public health and safety that is caused by an act or omission of the Tribe and that arises out of a failure by the Tribe to carry out the compact or funding agreement; or
(b) Gross mismanagement with respect to funds transferred to the Tribe under the compact and funding agreement, as determined by the Department in consultation with the Office of the Inspector General, as appropriate. Gross mismanagement means a significant, clear, and convincing violation of compact, funding agreement, or regulatory or statutory requirements applicable to Federal funds included in a compact and funding agreement that results in a significant reduction of funds available for the PSFA carried out by the Tribe.
The Department may reassume a portion of a compact or funding agreement and the associated funds if the Department has sufficient grounds to do so. The Department must identify the narrowest portion of the compact or funding agreement for reassumption.
Except as provided in § 29.805, prior to a termination becoming effective, the Department must:
(a) Notify the Tribe in writing by any method that provides receipt of the findings required under § 29.800;
(b) Request specific corrective action within a reasonable period of time, no less than 45 days, to correct the conditions that may result in the Department's termination of a compact or funding agreement (or portion thereof);
(c) To the extent feasible and if requested, offer and provide technical assistance to assist the Tribe in overcoming the conditions that led to the findings described under paragraph (a) of this section. Technical assistance may take the form of feedback, review, and other assistance requested, as appropriate; and
(d) Provide an opportunity for a hearing on the record in accordance with Subpart J of this part.
(a) If the Department determines that the Tribe has not corrected the conditions that the Department identified in the notice, the Department must provide a second written notice by any method that provides receipt to the Tribe that the Department will terminate the compact or funding agreement, in whole or in part.
(b) The second notice must include:
(1) The effective date of the termination;
(2) The details and facts supporting the termination; and
(3) Instructions that explain the Tribe's right to a hearing pursuant to § 29.925.
Except as provided in§ 29.805, the Department may not reassume until 30 days after the final resolution of the hearing and any subsequent appeals to provide the Tribe with an opportunity to take corrective action in response to any adverse final ruling.
(a) The Department may immediately terminate a compact or funding agreement (or a portion thereof) if:
(1) The Department makes a finding of imminent substantial and irreparable jeopardy to a trust asset, natural resource, or public health and safety; and
(2) The jeopardy arises out of a failure to carry out the compact or funding agreement.
(b) The Department must provide notice of immediate termination by any method that provides receipt. The notice must set forth the findings that support the Department's determination, advise the Tribe whether it will be reimbursed for any closeout costs incurred after the termination, request the return of any property, and advise the Tribe of its right to a hearing pursuant to § 29.925. Concurrently, the Department must notify the Office of Hearings that the Department intends to immediately terminate a compact or funding agreement. Pursuant to § 29.928, the Department has the burden of proof in any hearing or appeal of an immediate termination.
Upon termination, the Department will reassume the remaining funds associated with the terminated portions of the compact or funding agreement. The Department may:
(a) Transfer funds associated with transportation services provided by the Department of the Interior to the Department of the Interior; or
(b) Distribute any funds not transmitted to the Department of the Interior in accordance with applicable law.
This subpart sets forth procedures that a Tribe may use to resolve disputes with the Department arising before or after the execution of a compact or
At any time, a Tribe or the Department may request an informal process or an alternate dispute resolution procedure, such as mediation, conciliation, or arbitration, to resolve disputes. The goal of any such process (which may involve a third party) is to provide an inexpensive and expeditious mechanism to resolve disputes by mutual agreement instead of an administrative or judicial proceeding. The parties should resolve disputes at the lowest possible staff level whenever possible.
The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28 U.S.C. 2414, and the relevant implementing regulations (48 CFR 6101.30 and 6101.31; 49 CFR part 6) will apply if the Tribe's compact or funding agreement make these provisions applicable.
The following determinations may not be appealed under this subpart:
(a)
(b)
(c)
A Tribe may appeal pre-award decisions, which include:
(a) A decision whether to include a Department program in a funding agreement;
(b) A decision whether an activity is an inherent Federal function;
(c) A decision on a final offer before the Department and the Tribe enter into a compact or funding agreement;
(d) A decision on a final offer before the Department and the Tribe execute an amendment modifying the terms of an existing compact or funding agreement; and
(e) An eligibility determination.
A Tribe appeals a pre-award decision to a hearing official, who was not involved in the initial decision, appointed by the General Counsel.
A Tribe must exhaust its administrative remedies before initiating a civil action against the Department in the U.S. District Courts except a Tribe may appeal the rejection of a final offer directly to the U.S. District Courts in lieu of an administrative appeal.
(a) A pre-award decision becomes final 30 days after receipt by the Tribe. To appeal the pre-award decision, a Tribe must submit the written request to the Office of the General Counsel and the official whose decision the Tribe is appealing within 30 days of receiving the decision. The request must include a statement describing the reasons for appeal and any supporting documentation.
(b) The Tribe may request to resolve the dispute using an alternative dispute resolution process before the hearing official issues a decision.
If a Tribe needs additional time, it may request an extension of time to file an appeal of a pre-award decision. Within 30 days of receiving a decision, a Tribe must request the extension from the Office of the General Counsel, which has the discretion to grant the extension. The request must be in writing and give a reason for not filing its administrative appeal within the 30-day period. The Department may accept an appeal after the 30-day period for good cause.
(a) The hearing official must issue a decision in writing within 60 days of the receipt of the appeal. If the Tribe requests an informal hearing, the hearing official must issue a decision within 60 days of the hearing.
(b) All decisions issued by the hearing official must include a statement describing the rights of a Tribe to appeal the decision to the U.S. District Courts. The Department must provide the decision by any method that provides a receipt.
The Department must demonstrate by clear and convincing evidence the validity of a pre-award decision, and that the decision is consistent with 23 U.S.C. 207.
A pending appeal of a pre-award decision will not prevent the Department from negotiating and executing the non-disputed, severable portions of a compact or funding agreement or prevent the Department from awarding funds to the Tribe that may be included in a funding agreement.
A post-award dispute is a claim that arises under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 7101-7109. Such disputes arise once a compact or funding agreement is executed. Post-award disputes include:
(a) Disputed interpretation of a provision of an executed compact or funding agreement;
(b) Disallowance of costs under a funding agreement;
(c) Suspension of payments under a funding agreement;
(d) Allocation, distribution, or reduction of funds when a dispute arises between a consortium and a withdrawing Tribe;
(e) Failure to comply with the terms of a funding agreement; and
(f) Any other claim arising out of a compact or funding agreement.
A Contract Disputes Act claim is a written demand filed by a Tribe that seeks one or more of the following:
(a) Payment of a specific sum of money under the funding agreement;
(b) Adjustment or interpretation of terms in a funding agreement;
(c) Payment that is disputed as to liability or amount;
(d) Payment that the Department has not acted upon in a reasonable time following a demand for payment; or
(e) Any other claim relating to the terms of the compact or funding agreement.
A Tribe must submit its claim in writing to the Chief Self-Governance Official, who serves as the Department's awarding official for the purposes of Contract Disputes Act claims. The Chief Self-Governance Official will document the receipt of the claim.
A Tribe must certify a claim for more than $100,000 in accordance with the Contract Disputes Act. The Tribe must certify that:
(a) The claim is made in good faith;
(b) Supporting documents or data are accurate and complete to the best of the Tribe's knowledge and belief;
(c) The amount claimed accurately reflects the amount the Tribe believes is owed; and
(d) The individual making the certification is authorized to make the claim on behalf of the Tribe and bind the Tribe with respect to the claim.
The Tribe bears the burden of proof to demonstrate, by a preponderance of the evidence, the validity of a Contract Disputes Act claim.
(a) The Department must document the date that the Chief Self-Governance Official received the claim.
(b) The Chief Self-Governance Official must provide the Tribe with an opportunity to resolve the claim informally with assistance from Department officials who have not substantially participated in the disputed matter. Such informal mechanisms may include participating in dispute resolution pursuant to § 29.901.
(c) If the Department and the Tribe do not agree on a settlement, the Chief Self-Governance Official must issue a written decision on the claim by any method that provides a receipt.
(a) The Chief Self-Governance Official's decision must:
(1) Describe the claim or dispute;
(2) Reference the relevant terms of the compact and funding agreement;
(3) Set forth the factual areas of agreement and disagreement; and
(4) Set forth the Chief Self-Governance Official's decision, and provide the facts and reasons that support the decision.
(b) The Chief Self-Governance Official must provide the decision to the Tribe and describe the Tribe's appeal rights in language similar to the following:
This is a final decision. You may appeal this decision to the Civilian Board of Contract Appeals (CBCA), 1800 F Street NW, Washington, DC 20245. If you decide to appeal, you must provide written notice within 90 days of receipt of this decision to the CBCA and provide a copy to the Chief Self-Governance Official. The notice must indicate that an appeal is intended, and refer to the decision and contract number. Instead of appealing to the CBCA, you may bring an action in the U.S. Court of Federal Claims or U.S. District Courts within 12 months of the date you receive this notice. If you do not appeal a decision within one of these time periods, it is not subject to further review.
(a) If the claim is for less than $100,000, the Tribe may request that the Chief Self-Governance Official issue a decision within 60 days of the date of receipt of the claim. If the Tribe does not request that the Chief Self-Governance Official issue a decision within 60 days of the date of receipt of the claim, the Chief Self-Governance Official must issue a decision within a reasonable time, which will depend on the size and complexity of the claim and the adequacy of the information provided in support of the claim. The Tribe must request a decision by the Chief Self-Governance Official before seeking an appeal in accordance with paragraph (c) of this section.
(b) If the claim is for more than $100,000, the Chief Self-Governance Official must issue a decision within 60 days of the date of receipt of the claim or notify the Tribe of the time within which the Chief Self-Governance Official will issue a decision. Such timeframe must be reasonable, which will depend on the size and complexity of the claim and the adequacy of the information provided in support of the claim.
(c) If the Chief Self-Governance Official does not issue a decision within these time frames, a Tribe may treat the delay as a denial and appeal the decision in accordance with § 29.921.
(a) A decision of the Chief Self-Governance Official is final and conclusive, and not subject to review, unless the Tribe timely commences an appeal or suit pursuant to the Contract Disputes Act.
(b) Once the Chief Self-Governance Official issues a decision, the decision may not be changed except by agreement of the parties or under the following limited circumstances:
(1) Evidence is discovered that could not have been discovered through due diligence before the Chief Self-Governance Official issued the decision;
(2) The Chief Self-Governance Official learns that there has been fraud, misrepresentation, or other misconduct by a party;
(3) The decision is beyond the scope of the Chief Self-Governance Official's authority;
(4) The claim has been satisfied, released, or discharged; or
(5) Any other reason justifying relief from the decision.
(c) If the Chief Self-Governance Official withdraws a decision and issues a new decision that is not acceptable to the Tribe, the Tribe may appeal the new decision in accordance with § 29.921. If the Chief Self-Governance Official does not issue a new decision, the Tribe may proceed under § 29.919(c).
(d) If a Tribe files an appeal or suit, the Chief Self-Governance Official may modify or withdraw the final decision before a decision is issued in the pending appeal.
A Tribe may appeal the Chief Self-Governance Official's decision on a Contract Disputes Act claim in one of the following forums:
(a) The Civilian Board of Contract Appeals. The appeal must be in accordance with the Board's implementing regulations in 48 CFR part 6101;
(b) The U.S. Court of Federal Claims; or
(c) The U.S. District Courts.
A party may appeal a decision of the Civilian Board of Contract Appeals within 120 days to the U.S. Court of Appeals for the Federal Circuit.
(a) A Tribe must continue performance in accordance with the compact and funding agreement during the appeal of any claims to the same extent the Tribe would have performed had there been no dispute.
(b) A pending dispute will not affect or prevent the negotiation or award of any subsequent compact or funding
A Tribe may appeal the Department's decision to terminate a compact or funding agreement to the Department's Office of Hearings.
(a) The Department must provide a Tribe with a hearing on the record for a non-immediate termination prior to or in lieu of the corrective action period set forth in the termination notice as described in § 29.802.
(b) The Department must provide a Tribe with a hearing on the record for an immediate termination. The Department and the Tribe will work together to determine a mutually acceptable time and place for the hearing. The hearing on the record must commence no later than 10 days after the date of such termination or a later date upon mutual agreement. If feasible, the hearing may occur virtually or telephonically. If requested by the Tribe, the Department may arrange for an in-person hearing.
(c) The Tribe may decline a hearing in writing.
(a) During the appeal of a termination decision, a Tribe and the Department have the right to:
(1) A designated representative;
(2) Present the testimony of witnesses, orally or in writing, who have knowledge of the relevant issues;
(3) Cross-examine witnesses;
(4) Introduce oral or documentary evidence, or both;
(5) Receive, upon request and payment of reasonable costs, a copy of the transcript of the hearing, and copies of all documentary evidence that is introduced at the hearing;
(6) Take depositions, request the production of documents, serve interrogatories on other parties, and request admissions; and
(7) Any other procedural rights established under the Administrative Procedure Act.
(b) An administrative law judge assigned by the chief administrative law judge of the Department's Office of Hearings must conduct hearings on the record for a termination decision unless the Tribe waives the hearing.
(a) The parties must file each document with U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.
(b) The parties must serve copies of each document with:
(1) The Chief Self-Governance Official; and
(2) The authorized Tribal representative.
The Department must demonstrate by clear and convincing evidence the validity of the grounds for the termination.
After the hearing or any post-hearing briefing schedule established by the Department's Office of Hearings, the administrative law judge must send all parties the decision by any method that provides a receipt. The decision must contain the administrative law judge's findings of fact and conclusions of law on all the issues.
The decision of an administrative law judge is a final agency action subject to judicial review under the Administrative Procedure Act, and a party may appeal it to the U.S. District Courts.
A pending appeal of a termination decision will not affect or prevent the award of another funding agreement or TTP agreement. However, if the Department terminates all or a portion of a compact or funding agreement due to a finding of gross mismanagement or imminent jeopardy, which is sustained on appeal, and the Tribe has not corrected the adverse findings, the Department has discretion to reject a proposal to award the Tribe a new funding agreement or provide new funds in an existing funding agreement.
(a) Committee for the Preservation of the White House; Executive Order 11145, as amended (Department of the Interior).
(b) President's Commission on White House Fellowships; Executive Order 11183, as amended (Office of Personnel Management).
(c) President's Committee on the National Medal of Science; Executive Order 11287, as amended (National Science Foundation).
(d) President's Export Council; Executive Order 12131, as amended (Department of Commerce).
(e) President's Committee on the International Labor Organization; Executive Order 12216, as amended (Department of Labor).
(f) President's National Security Telecommunications Advisory Committee; Executive Order 12382, as amended (Department of Homeland Security).
(g) National Industrial Security Program Policy Advisory Committee; Executive Order 12829, as amended (National Archives and Records Administration).
(h) Trade and Environment Policy Advisory Committee; Executive Order 12905 (Office of the United States Trade Representative).
(i) Governmental Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 (Environmental Protection Agency).
(j) National Advisory Committee to the United States Representative to the North American Commission for Environmental Cooperation; Executive Order 12915 (Environmental Protection Agency).
(k) Good Neighbor Environmental Board; Executive Order 12916, as amended (Environmental Protection Agency).
(l) Presidential Advisory Council on HIV/AIDS; Executive Order 12963, as amended (Department of Health and Human Services).
(m) President's Committee for People with Intellectual Disabilities; Executive Order 12994, as amended (Department of Health and Human Services).
(n) Advisory Board on Radiation and Worker Health; Executive Order 13179 (Department of Health and Human Services).
(o) National Infrastructure Advisory Council; Executive Order 13231, as amended (Department of Homeland Security).
(p) President's Council on Sports, Fitness, and Nutrition; Executive Order 13265, as amended (Department of Health and Human Services).
(q) President's Advisory Commission on Asian Americans and Pacific Islanders; Executive Order 13872 (Department of Commerce).
(r) President's Council of Advisors on Science and Technology; Executive Order 13539, as amended (Department of Energy).
(s) Interagency Task Force on Veterans Small Business Development; Executive Order 13540 (Small Business Administration).
(t) State, Local, Tribal, and Private Sector (SLTPS) Policy Advisory Committee; Executive Order 13549 (National Archives and Records Administration).
(u) President's Advisory Commission on Educational Excellence for Hispanics; Executive Order 13555 (Department of Education).
(v) President's Advisory Commission on Educational Excellence for African Americans; Executive Order 13621 (Department of Education).
(w) President's Advisory Council on Doing Business in Africa; Executive Order 13675, as amended (Department of Commerce).
(x) Commerce Spectrum Management Advisory Committee; initially established pursuant to Presidential Memorandum on Improving Spectrum Management for the 21st Century (November 30, 2004) (Department of Commerce).
(y) National Space-Based Positioning, Navigation, and Timing Advisory Board; National Security Presidential Directive-39, “U.S. National Space-Based Position, Navigation, and Timing Policy” (December 8, 2004) (National Aeronautics and Space Administration).
(z) San Juan Islands National Monument Advisory Committee; Proclamation 8947 of March 25, 2013 (Department of the Interior).
(aa) Bears Ears National Monument Advisory Committee; Proclamation 9558 of December 28, 2016, as amended (Department of the Interior).
(bb) Gold Butte National Monument Advisory Committee; Proclamation 9559 of December 28, 2016 (Department of the Interior).
(cc) Grand Staircase-Escalante National Monument Advisory Committee; Proclamation 9682 of December 4, 2017 (Department of the Interior).
(dd) President's Board of Advisors on Historically Black Colleges and Universities; Executive Order 13779 (Department of Education).