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Commodity Credit Corporation and Farm Service Agency, USDA.
Final rule.
The Agriculture Improvement Act of 2018 (2018 Farm Bill) amends the Agricultural Act of 2014 to make changes to the Supplemental Agricultural Disaster Assistance Programs, which include the Livestock Indemnity Program (LIP), the Livestock Forage Disaster Program (LFP), the Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish Program (ELAP), and the Tree Assistance Program (TAP). The rule includes changes required by the 2018 Farm Bill, as well as discretionary changes intended improve administration of the programs and clarify existing program requirements.
Kimberly Graham; telephone (202) 720-7641, or email
The disaster assistance programs, payment limitations, and payment eligibility provisions in this rule are Commodity Credit Corporation (CCC) funded and are administered by the Farm Service Agency (FSA). This final rule implements specific changes to the programs required by the 2018 Farm Bill (Pub. L. 115-334). This rule also makes minor clarifying amendments and corrections to the regulations in 7 CFR part 1416.
The 2018 Farm Bill removed ELAP from the combined $125,000 per year payment limitation with LFP, effectively removing the annual payment limitation for ELAP. LIP has no annual payment limitation as well because of changes made by the Bipartisan Budget Act of 2018 (Pub. L. 115-123). Accordingly, LFP is the only supplemental disaster program to have a $125,000 per person and legal entity program year payment limitation. However, the average adjusted gross income (AGI) limitation provisions in part 1400 of this chapter relating to limits on payments for persons or legal entities, excluding joint ventures and general partnerships, continue to apply to each applicant for ELAP, LFP, LIP, and TAP. Specifically, a person or legal entity with an AGI that exceeds $900,000 will not be eligible to receive benefits under 7 CFR part 1416. Further, the direct attribution provisions in 7 CFR part 1400 apply to ELAP, LFP, LIP, and TAP.
As required by the 2018 Farm Bill, effective with the 2019 and subsequent program years, direct or indirect payments to a person or legal entity under the LFP are limited to $125,000 per program year. The limitation does not apply to payments issued under ELAP, LIP, and TAP.
The 2018 Farm Bill amends the definition of “eligible producer on a farm” to include an Indian Tribe or Tribal organization. This rule amends the definition in the regulation. Additionally, miscellaneous provisions are being amended to specify that in order to be eligible for benefits, participants must submit an accurate acreage report annually as required by applicable program provisions.
ELAP provides financial assistance to eligible producers of livestock, honeybees, and farm-raised fish for losses due to disease, certain adverse weather events, or loss conditions, including blizzards and wildfires, as determined by the Secretary. ELAP assistance is provided for losses that are not covered by LFP and LIP.
For ELAP, this rule makes mandatory changes to conform with the 2018 Farm Bill to:
• Provide that a veteran farmer or rancher's payment will be calculated based on a national payment rate of 90 percent;
• Add assistance for costs related to inspection for cattle tick fever, regardless of findings from the inspection;
• Remove assistance for livestock death losses due to disease transmitted by vectors that cannot be controlled by vaccination or acceptable management practices, as the 2018 Farm Bill authorizes payments for these losses under LIP; and
• Provide that ELAP payments, beginning with the 2019 program year, are not subject to an annual program payment limitation.
In addition, FSA is making discretionary changes to ELAP for clarity and to improve program integrity. The definition of “eligible winter storm” is amended to be consistent with how this term is used for LIP. In order to be consistent with the LFP and ELAP provisions in § 1416.104 and § 1416.105, the definition of “livestock owner” is amended to specify that an owner must have legal ownership of the livestock for which ELAP benefits are being requested during the 60 calendar days before the eligible adverse weather or eligible loss condition as opposed to only or just on the day of the eligible adverse weather or eligible loss condition. The definition of “grazing animal” is amended to clarify that unweaned livestock are not included in the definition. The program year for ELAP has always run as a fiscal year while the other disaster programs LFP, LIP and TAP had program years that were based on the calendar year. This rule amends the 2019 and subsequent program years for ELAP; for 2019 the ELAP program year is from October 1, 2018, through December 31, 2019; for 2020 and subsequent years, the ELAP program year is the same as the calendar year, January 1 through December 31. This is for ease in program administration and for producers to better understand the program year for ELAP consistent with other similar disaster assistance programs. The change should not impact the extent of any producer's payment eligibility.
This rule amends § 1416.103 to include costs for transporting water for eligible adverse weather, as determined by the Deputy Administrator. Previously, only drought was an eligible condition for costs for transporting water. This change is being made to address the actual loss sustained by producers when an eligible disaster (not just drought) causes a loss for transport of water (water transportation costs that absent that disaster would not have been incurred by the eligible producer). As was the case for drought, the cost of water is not eligible. The program will not pay for transporting water to livestock on land enrolled in CRP.
This rule amends § 1416.104 to remove the eligibility requirement for contract growers that their income be dependent on survival of the livestock, which was sometimes being interpreted to require a contract grower to indemnify owners for livestock deaths. Contract growers have beneficial risk interest in livestock when their compensation is based on their inputs, which are subject to loss and performance of the livestock as specified in the contract grower's contract. While some contracts may make the contract grower liable for death of livestock, such a condition is not required in order for a contract grower to be able to show beneficial risk interest in the livestock. The intent is to specify that eligibility of contract growers is for those persons or legal entities who do not own the livestock, but who derive income from weight gain of livestock, production of livestock products, or number of livestock produced. This rule also removes a provision that eligible livestock must not have been in a feedlot on the beginning date of the eligible adverse weather or loss condition to be eligible under ELAP as the location of an owner's livestock on the beginning date of an eligible disaster is not relevant to whether an eligible loss has occurred for an owner's grazing animals.
For program integrity, this rule specifies that a notice of loss for honeybee colony or honeybee hive losses must be accompanied by acceptable documentation to FSA that demonstrates that an eligible loss occurred and was associated with an eligible loss condition.
This rule removes regulatory provisions that applied only to ELAP for prior program years.
Further, consistent with the 15-day notice of loss period that applies to producers of honey under the Noninsured Crop Disaster Assistance Program, for honeybee losses the rule amends the notice of loss deadline for 2020 and subsequent program years to 15 days of when the loss is first apparent to the producer. For losses other than honeybee and honeybee hive losses, the notice of loss deadline remains at 30 days from the date loss is first apparent to the producer. This rule specifies that, in addition to all other existing eligibility requirements, that in the event a participant was paid for a loss of honeybee colony or honeybee hive in either or both of the previous 2 years, the participant must provide, along with any notice of loss and application for payment in the current year, documentation acceptable to FSA substantiating beginning inventory for that current year for which the notice of loss and application for payment is being submitted. The rule specifies that, in addition to all other existing eligibility requirements, for honeybee colony losses due to Colony Collapse Disorder (CCD), the participant must provide a producer certification that the loss was a direct result of at least 3 of the 5 symptoms of CCD. Further, in addition to the notice of loss required by § 1416.107, this rule clarifies that an application for payment is due within 30 calendar days of the end of the applicable program year. This is not a change; however, with the change in program years, the regulation is amended to tie the application deadline to the program year.
Other than the change made to payment limitations that removed ELAP from the combined $125,000 annual payment limit with LFP therefore making LFP the only supplemental disaster program subject to the $125,000 limit, the 2018 Farm Bill did not make changes to the LFP. However, consistent with other discretionary changes for clarity and program integrity, FSA is making the following changes in this rule.
This rule clarifies § 1416.201 to specify that eligible livestock owners or contract growers of livestock who are eligible producers of grazed forage crop acreage are eligible for LFP payment consideration. Persons or legal entities that are not both an eligible owner or contract grower of livestock and a producer of grazed forage are not eligible. This is not a change to existing policy, rather a clarification. This rule amends the definition of “contract grower” to remove the requirement that the contract grower's income be dependent on survival of the livestock, consistent with the intent of the program as well as with the ELAP provision covering contract growers. This rule amends the definition of “grazing animals” to make clear that unweaned animals are excluded (consistent with ELAP) from this definition and therefore ineligible for payment. This rule adds a definition for “unweaned livestock”.
This rule amends § 1416.203 to clarify that as of the date of the qualifying drought or fire for LFP, the owner or contract grower of grazing animals must provide pastureland or grazing land for covered livestock that is physically located in a county affected by a qualifying drought during the normal grazing period for the specific forage crop acreage in the county. This is not a change in policy, but rather a clarification in the regulatory text. Further, consistent with ELAP, this rule clarifies that livestock excluded from being eligible include livestock intended for consumption by the owner or contract grower. This rule also clarifies provisions in § 1416.205 regarding grazing losses on irrigated land, which are not eligible for payment under LFP unless they are due to a lack of surface water as a result of a qualifying eligible drought condition. Finally, consistent with amendments to other subparts of part 1416, this rule removes provisions that were applicable to only prior program years.
LIP provides benefits to livestock owners and contract growers for livestock deaths in excess of normal mortality or injured livestock sold at a reduced price caused by adverse weather or by attacks by animals reintroduced into the wild by the Federal Government. LIP payments are equal to 75 percent of the average fair market value of the livestock. There is no payment limitation for LIP. The 2018 Farm Bill amends LIP to include coverage for:
1. Death loss resulting from diseases caused by, or transmitted by, a vector that cannot be controlled by vaccination or acceptable management practices; and
2. Death of unweaned livestock due to extreme cold and without regard to management protocols.
FSA is amending the regulations to conform to the mandatory changes under the 2018 Farm Bill changes to:
• Amend eligible livestock losses to include death loss of unweaned livestock due to extreme cold, without regard to management practices, vaccination protocols, or lack of vaccinations by the eligible producer; and
• Amend the definition of “eligible disease” to include disease caused or transmitted by a vector and not be
In addition, this rule makes minor discretionary changes to LIP to improve program integrity. FSA is amending § 1416.302 to remove references to “open range” livestock. The term was previously used where the rule allowed for establishment of beginning inventory of calf and lamb operations based on livestock beginning inventory history (LBIH). The regulation will retain LBIH and its use will be applicable in any livestock operation, not only those that were referred to as “open range,” for establishment of beginning inventory of unweaned livestock of calves, kids, or lambs. Accordingly, corresponding amendments are being made throughout the subpart to remove references to open range and to replace the reference to calves and lambs with unweaned livestock. This rule also amends § 1416.304, where applicable, by replacing the words “adverse weather event or date of the attack by animals reintroduced into the wild by the Federal Government or protected by Federal law, including wolves and avian predators or the transmission by vectors and is not susceptible to control by vaccination or acceptable management practices” with “eligible loss condition,” for ease in reading. This rule amends § 1416.304 to clarify that that eligible livestock includes only those livestock produced and maintained for commercial use for sale of the production of livestock products such as milk or eggs (or livestock). Excluded livestock are the same before including, but not limited to, wild free roaming animals; animals produced or maintained for consumption by the owner or contract grower; livestock used for recreational purposes; and livestock used for pleasure, hunting, roping, pets, or for show.
As is the case for other subparts, this rule amends § 1416.305 to remove provisions that were only applicable to prior program years. However, to relieve the burden some livestock owners may have in qualifying for assistance, § 1416.305 is amended to permit, for losses sustained due to an eligible adverse weather event or eligible disease, as defined in the rule, that the participant must, at a minimum, provide reliable records of inventory and reliable records as proof of death or injury. Finally, consistent with other amendments to 7 CFR part 1416, provisions in § 1416.305 that were applicable only to prior program years (for example, on or after October 1, 2011, and before January 1, 2015) have been removed.
TAP assists eligible orchardists and nursery tree growers that have incurred tree, bush, or vine mortality losses in excess of 15 percent, adjusted for normal mortality, due to natural disaster. TAP is a cost-reimbursement program, which means that payments are calculated based on estimated actual costs to replace or rehabilitate lost or damaged trees, bushes, or vines. The replacement and rehabilitation activities must take place within 12 months after the application is approved, and payment is not made until the activities are completed.
The rule amends § 1416.402 to add the term “commercially viable” for those eligible trees, bushes, or vines, that are damaged but which may rejuvenate and return to a level of expected production through rehabilitation and without planting. The term is added to § 1416.403 to permit eligible trees, bushes, or vines that are determined not commercially viable to be included in order to meet the requisite mortality in § 1416.403(a). This rule also amends the definition of “natural disaster” to specify the included natural occurrences must be extreme, abnormal, and damaging, consistent with the intent of the program.
This rule amends § 1416.405 to remove provisions that applied only to prior program years. It amends § 1416.406 to implement a change required by the 2018 Farm Bill to increase the reimbursement amount for a beginning farmer and rancher and a veteran farmer and rancher from 65 percent to 75 percent for the cost of replanting trees, bushes, or vines lost due to a natural disaster, in excess of 15 percent mortality (adjusted for normal mortality) or, at the option of the Secretary, sufficient seedlings to reestablish a stand. The 2018 Farm Bill also increases the reimbursement amount for beginning farmers and ranchers and veteran farmers and ranchers from 50 percent to 75 percent of the cost of pruning, removal, and other costs incurred for salvaging the existing plants, or in the case of plant mortality, to prepare land for replanting, subject to the maximum allowable FSA rate.
The Administrative Procedure Act (5 U.S.C.553) provides that the notice and comment and 30-day delay in the effective date provisions do not apply when the rule involves specified actions, including matters relating to benefits. This rule governs Supplemental Agricultural Disaster Assistance Programs, which include ELAP, LIP, LFP, and TAP for benefit payments and thus falls within that exemption.
Further, as specified in 7 U.S.C. 9091, the regulations to implement the provisions of the Title I of the 2018 Farm Bill are:
• Exempt from the notice and comment provisions of 5 U.S.C. 553, and
• Exempt from the Paperwork Reduction Act (44 U.S.C. chapter 35.
• To use the authority in 5 U.S.C. 808 related to Congressional review and any potential delay in the effective date.
In addition, 7 U.S.C. 9091(c)(3) directs the Secretary to use the authority provided in 5 U.S.C. 808, which provides that when an agency finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, that the rule may take effect at such time as the agency determines. Due to the mandatory requirements of the 2018 Farm Bill and the need to implement the regulations expeditiously to provide assistance to producers who suffered disaster losses because of adverse weather and other natural disasters, FSA and CCC find that notice and public procedure are contrary to the public interest.
The Office of Management and Budget (OMB) designated this rule as not major under Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore, FSA is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review.
Accordingly, this rule is effective upon publication in the
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” 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
OMB designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule and analysis of the costs and benefits is not required under either Executive Order 12866 and 13563.
Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that in order to manage the private costs required to comply with Federal regulations that for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. As this rule is designated not significant, it is not subject to Executive Order 13771. In a general response to the requirements of Executive Order 13777, USDA created a Regulatory Reform Task Force, and USDA agencies were directed to remove barriers, reduce burdens, and provide better customer service both as part of the regulatory reform of existing regulations and as an ongoing approach. FSA reviewed this regulation and made changes to improve any provision that was determined to be outdated, unnecessary, or ineffective.
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because as noted above, this rule is exempt from notice and comment rulemaking requirements of the APA and no other law requires that a proposed rule be published for this rulemaking initiative.
In general, the environmental impacts of rules are to be considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). Some of the changes being made by the rule were self-enacting and have already been implemented administratively. The rule implements primarily changes required by the 2018 Farm bills for ELAP, LIP and TAP; and the discretionary aspects are to improve administration of the programs and clarify existing program requirements. FSA is providing the disaster assistances, payment limitations, and payment eligibility provisions under the LIP, LFP, ELAP, and TAP to the eligible producers. The discretionary provision would not alter any environmental impacts resulting from implementing the mandatory changes to those programs. Accordingly, these discretionary aspects are coved by the following Categorical Exclusion, found at 7 CFR part 799.31(b)(6)(vi) safety net programs administrated by FSA and no Extraordinary Circumstances (§ 799.33) exist. Therefore, as this rule presents only discretionary clarifications of mandatory requirements that will not have an impact to the human environments, individually or cumulatively, FSA will not prepare an environmental assessment or environmental impact statement for this rule; this rule serves as documentation of the programmatic environmental compliance decision for this federal action.
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities in this rule are excluded from the scope of Executive Order 12372.
This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.
This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
USDA has assessed the impact of this rule on Indian Tribes and determined that this rule has Trial implications that required Tribal consultation under Executive Order 13175. Tribal consultation for this rule was included in the 2018 Farm Bill consultation held on May 1, 2019, at the National Museum of American Indian, in Washington, DC. The portion of the Tribal Consultation relative to this rule was conducted by Bill Northey, USDA Under Secretary for the Farm Production and Conservation mission area, as part of Title I session. If a Tribe requests additional consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided.
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates as defined by Title II of UMRA for State, local, or Tribal governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
The titles and numbers of the Federal assistance programs, listed in the Catalog of Federal Domestic Assistance, to which this rule applies, are:
FSA and CCC are 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.
Administrative practice and procedure, Agriculture, Disaster assistance, Fruits, Livestock, Nursery stock, Seafood.
For the reasons discussed above, CCC amends 7 CFR part 1416 as follows:
Title I, Pub. L. 113-79, 128 Stat. 649; Title I, Pub. L. 115-123; Title VII, Pub. L. 115-141.
The addition reads as follows:
(b) * * *
(5) Indian Tribe or Tribal organization, as defined in section 4(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
The revision reads as follows:
(a) For 2019 and each subsequent program year, a person, legal entity, or member of a joint venture or general partnership, as determined in part 1400 of this chapter, cannot receive, directly or indirectly, more than $125,000 per program year under LFP.
(b) In order to be eligible for benefits, participants in the programs specified in this part must submit an accurate acreage report annually as required by these provisions.
The revisions and additions read as follows:
The revisions read as follows:
(d) * * *
(5) A loss resulting from the additional cost of transporting water to eligible livestock as specified in § 1416.104(a) due to eligible adverse weather, eligible loss condition, or eligible drought, as determined by the Deputy Administrator, including, but not limited to, costs associated with water transport equipment rental fees, labor, and contracted water transportation fees. The cost of the water is not eligible for payment. Transporting water to livestock located on land enrolled in CRP is not an eligible loss under ELAP. To be eligible for additional cost of transporting water to eligible livestock, the livestock must be on eligible grazing lands that meet all of the following:
(i) Physically located in the county where the eligible adverse weather, eligible loss condition, or eligible drought, as determined by the Deputy Administrator, occurred;
(ii) That had adequate livestock watering systems or facilities before the eligible adverse weather, eligible loss condition, or eligible drought occurred; and
(f) For a loss resulting from the additional cost associated with gathering livestock to inspect or treat for cattle tick fever, the livestock gathered for inspection or treatment for cattle tick fever must be considered eligible livestock as specified in § 1416.104(d). To be considered an eligible loss, acceptable records, as determined by the Deputy Administrator, must be on file with APHIS, that provide the number of livestock gathered and inspected or treated for cattle tick fever and the number of treatments given during the program year.
(h) For honeybee colony or honeybee hive losses to be considered eligible, the hive producer must have incurred the loss in the county where the eligible adverse weather or eligible loss condition occurred. The honeybee colony or hive losses must be due to an eligible adverse weather or eligible loss condition, as determined by the Deputy Administrator, including, but not limited to, colony collapse disorder, earthquake, eligible winter storm, as specified in § 1416.102, excessive wind, flood, hurricane, lightning, tornado, volcanic eruption, and wildfire. Drought is not an eligible adverse weather event or eligible loss condition for honeybee hive losses. To be considered eligible for honeybee hive loss as of the beginning date of the eligible adverse weather event or eligible loss condition the honeybee hive must be all the following: Maintained for producing honey, pollinating, or breeding honeybees for commercial use in a farming operation; physically located in the county where the eligible adverse weather or eligible loss conditions occurred; and be a part of a honeybee farming operation in which the applicant has a risk in honey production, pollination, or honeybee breeding. To be considered an eligible honeybee colony loss, the colony loss must be in excess of normal mortality, as established by the Deputy Administrator, and the loss could not have been prevented through reasonable and available measures. The notice of loss must be accompanied by acceptable documentation, as determined by the Deputy Administrator, that demonstrates an eligible loss occurred and was associated with an eligible adverse weather or eligible loss condition, and that generally accepted husbandry and production practices had been followed. For colony collapse disorder, acceptable documentation includes, but is not limited to, proof of beginning inventory and good management practices, and a producer certification that the loss of honeybee colonies was a direct result of at least 3 of the following 5 symptoms:
(1) The loss of live queen or drone bee populations inside the hives;
(2) Rapid decline of adult worker bee population outside the hives, leaving brood poorly or completely unattended;
(3) Absence of dead adult bees inside the hive and outside the entrance of the hive;
(4) Absence of robbing collapsed colonies;
(5) At the time of collapse, varroa mite and Nosema populations are not at levels known to cause economic injury or population decline.
The revision and addition read as follows:
(a) To apply for ELAP, the participant that suffered eligible livestock, honeybee, or farm-raised fish losses must submit, to the FSA county office, the following:
(d) * * * If the participant was paid for a loss of honeybee colony or honeybee hive in either or both of the 2 previous years, the participant must provide documentation that FSA deems acceptable to substantiate how current year honeybee colony and honeybee hive inventory was acquired. * * *
(a) In addition to submitting an application for payment by the deadline in paragraph (b) of this section, the participant that suffered eligible livestock, honeybee, or farm-raised fish losses that create or could create a claim for benefits must:
(1) For losses other than honeybees, provide a notice of loss to FSA within 30 calendar days of when the loss of livestock is first apparent;
(2) For honeybee losses, provide a notice of loss together with documentation required by § 1416.103 to FSA within 15 calendar days of when the loss is first apparent;
(3) Submit the notice of loss required in this paragraph to the FSA county office.
(b) In addition to the notices of loss required in paragraph (a) of this section, a participant seeking payment must also submit a completed application for payment by 30 calendar days after the end of the applicable program year.
(b) Eligible livestock owners or contract growers who are eligible producers of eligible grazed forage crop acreage will be compensated for eligible grazing losses for covered livestock that occur due to a qualifying drought or fire that occurs in the calendar year for which benefits are being requested.
The additions read as follows:
The revision reads as follows:
(c) * * *
(7) Unweaned livestock or animals not meeting the definition of a grazing animal;
The revision reads as follows:
(a) To apply for LFP, the participant that suffered eligible grazing losses for the 2019 and subsequent program years must submit a completed application and required supporting documentation, including some supporting documentation such as an acreage report that may have been required at an earlier date, to the administrative FSA county office no later than 30 calendar days after the end of the calendar year in which the grazing loss occurred.
(a) This subpart establishes the terms and conditions of the Livestock Indemnity Program (LIP).
The revisions and additions read as follows:
The additions and revisions read as follows:
(c) * * *
(1) * * *
(ii) No later than 30 calendar days for livestock, or 7 calendar days for newborn livestock, from the ending date of the eligible loss condition; or
(2) Been injured and sold at a reduced price as a direct result of an eligible adverse weather event or eligible attack no later than 30 calendar days for livestock, or 7 calendar days for newborn livestock, from the ending date of the eligible adverse weather event or eligible attack.
(4) Not be produced or maintained for reasons other than commercial use for livestock sale or for the production of livestock products such as milk or eggs. Livestock excluded from being eligible include, but are not limited to, wild free roaming animals and animals produced or maintained for consumption by the owner or contract grower, livestock used for recreational purposes, livestock used for pleasure, hunting, roping, pets, or for show.
(d) * * *
(14) Chickens, roasters
(15) Chickens, super roasters or parts
(39) Swine, boars, sows, 450 pounds or more;
(e) The following categories of animals are eligible livestock for contract growers and calculations of eligibility for payments will be calculated separately for each producer with respect to each category:
(1) Chickens, broilers, pullets (regular size);
(2) Chickens, chicks;
(3) Chickens, layers;
(4) Chickens, pullets or Cornish hens (small size);
(5) Chickens, roasters;
(6) Chickens, super roasters or parts;
(7) Ducks;
(8) Ducks, ducklings;
(9) Geese, goose;
(10) Swine, boars, sows;
(11) Swine, suckling nursery pigs;
(12) Swine, lightweight barrows, gilts 50 to 150 pounds;
(13) Swine, sows, boars, barrows, gilts 151 to 450 pounds;
(14) Swine, boars and sows 450 pounds or more;
(15) Turkeys, poults; and
(16) Turkeys, toms, fryers, and roasters.
The revisions read as follows:
(a) A notice of loss must be accompanied by documentation acceptable to FSA substantiating that the claimed eligible loss condition occurred and was responsible for eligible losses. For any notice of loss being submitted for disease exacerbated by eligible adverse weather, the notice of loss must be accompanied by a certification referenced in paragraph (g) of this section.
(c) In addition to the notice of loss required in paragraph (b) of this section, a participant must also submit a completed application for payment, by livestock unit for losses apparent in 2019 and subsequent years, by no later than 60 calendar days after the end of the calendar year in which the eligible loss condition occurred.
(f) For losses resulting from an eligible adverse weather event or eligible disease, if adequate verifiable proof of death or injury documentation is not available, the participant may provide reliable records as proof of death or injury. Reliable records may include contemporaneous producer records, dairy herd improvement records, brand inspection records, vaccination records, dated pictures, and other similar reliable documents as determined by FSA.
(g) For livestock death losses due to disease, a licensed veterinarian's certification of livestock deaths may be accepted as proof of death, if reliable beginning inventory data is available, only if the veterinarian provides a written statement containing all of the following:
(h) Certification of livestock deaths or injuries by third parties may be accepted if both of the following conditions are met:
(i) * * *
(2) * * *
(ii) The COC will explain the procedure for the LBIH to unweaned livestock operation. COC will determine the LBIH in accordance with § 1416.305(g).
(4) * * *
(i) If no acceptable livestock beginning inventory records are available for calves, lambs, or kids, calculate the 4 transitional livestock beginning inventory histories by multiplying the approved birthing rate or drop rate percentage for the unweaned livestock operation times the applicable cow, ewe, or nanny LBIH times 65 percent.
(ii) If acceptable livestock beginning inventory records are provided for only one of the most recent 5 calendar years, calculate the 3 transitional livestock beginning inventory histories by multiplying the approved birthing rate or drop rate percentage for the unweaned livestock operation times the applicable cow, ewe, or nanny LBIH times 80 percent.
(iii) If acceptable livestock beginning inventory records are provided for only 2 of the most recent 5 calendar years, calculate the 2 transitional livestock beginning inventory histories by multiplying the approved birthing rate or drop rate percentage for the unweaned livestock operation times the applicable cow, ewe, or nanny LBIH times 90 percent.
(iv) If acceptable livestock beginning inventory records are provided for only
(g) * * * The qualifying mortality loss will be determined based on the eligible trees, bushes, or vines that reached mortality, which means that the tree, bush, or vine died, above and below ground, as a result of an eligible natural disaster event. If an eligible tree, bush, or vine is damaged to such an extent that it is not commercially viable, now or at any time in the future, the tree, bush, or vine can be considered dead in determining if the requisite qualifying mortality loss threshold in paragraph (a) of this section is reached.
In rule document 2019-23472 beginning on page 61776 in the issue of Wednesday, November 13, 2019, make the following correction:
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This correction is effective March 5, 2020.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 5, 2020 (85 FR 5304, January 30, 2020).
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of June 30, 2006 (71 FR 30278, May 26, 2006).
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
You may examine the AD docket on the internet at
Chandraduth Ramdoss, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5239; fax: 562-627-5210; email:
As published, AD 2020-01-18, Amendment 39-19824 (85 FR 5304, January 30, 2020) (“AD 2020-01-18”), requires incorporating a new revision to the Airworthiness Limitations section of the Instructions for Continued Airworthiness to mandate certain repetitive inspections for fatigue cracking of principal structural elements (PSEs), and revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, for all The Boeing Company Model 757 airplanes.
As published, the service information reference for revising the existing maintenance or inspection program specified in the regulatory text is incorrect. The incorrectly specified reference was Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision October 2018, which did not include reference to Subsection B. The correct reference is Subsection B., “Airworthiness Limitations—Structural Inspections,” of Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision October 2018.
The FAA reviewed Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision October 2018. This service information describes procedures for airworthiness limitations for structural inspections, fuel tank systems, safe life limits, and certification maintenance requirements.
This AD also requires the following service information, which the Director of the Federal Register approved for incorporation by reference as of June 30, 2006 (71 FR 30278, May 26, 2006).
• Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, “Airworthiness Limitations and Certification Maintenance Requirements,” Subsection B. of Boeing Document D622N001-9, Revision “May 2003.”
• Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, “Airworthiness Limitations and Certification Maintenance Requirements,” Subsection B. of Boeing Document D622N001-9, Revision “June 2005.”
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This document corrects an error and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, we are publishing the entire rule in the
The effective date of this AD remains March 5, 2020.
Since this action only corrects the service information reference for revising the existing maintenance or inspection program specified in the regulatory text, it has no adverse economic impact and imposes no additional burden on any person. Therefore, the FAA has determined that notice and public comment procedures are unnecessary.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective March 5, 2020.
This AD replaces AD 2006-11-11, Amendment 39-14615 (71 FR 30278, May 26, 2006) (“AD 2006-11-11”).
(1) This AD applies to all The Boeing Company Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category.
(2) Installation of Supplemental Type Certificate (STC) ST01518SE affects the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01518SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is necessary to comply with the requirements of 14 CFR 39.17.
Air Transport Association (ATA) of America Code 28, Fuel; 53, Fuselage; 57, Wings.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address fatigue cracking of various principal structural elements (PSEs); such fatigue cracking could adversely affect the structural integrity of these airplanes.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (h) of AD 2006-11-11, with no changes. Within 36 months after June 30, 2006 (the effective date of AD 2006-11-11), revise Section 9, “Airworthiness Limitations and CMRs” of the Boeing 757 Maintenance Planning Data (MPD) Document to incorporate Subsection B. of Boeing Document D622N001-9, Revision “May 2003;” or Revision “June 2005;” as applicable.
(1) Except for airplanes identified in paragraph (h)(2) of this AD: Within 18 months after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in Subsection B., “Airworthiness Limitations—Structural Inspections,” of Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision October 2018. The initial compliance time for doing the new or updated tasks is at the time specified in Subsection B., “Airworthiness Limitations—Structural Inspections,” of Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision October 2018, or within 18 months after the effective date of this AD, whichever occurs later. The compliance time for doing the unchanged tasks is at the time specified in Subsection B., “Airworthiness Limitations—Structural Inspections,” of Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision October 2018.
(2) For airplanes with STC ST01518SE installed: Within 18 months after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate a supplemental program to address the effect of STC ST01518SE, in accordance with the procedures specified in paragraph (l) of this AD.
Except as required by paragraph (h) of this AD: After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
After the existing maintenance or inspection program has been revised as required by paragraph (h) of this AD, no alternative actions (
Accomplishing the revision required by paragraph (h) of this AD terminates the revision required by paragraph (g) of this AD.
(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (m) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously for AD 2001-20-12, Amendment 39-12460 (66 FR 52492, October 16, 2001), and AD 2006-11-11, are approved as AMOCs for the corresponding provisions of this AD.
For more information about this AD, contact Chandraduth Ramdoss, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5239; fax: 562-627-5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on March 5, 2020 (85 FR 5304, January 30, 2020).
(i) Boeing 757 Maintenance Planning Data (MPD) Document, Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622N001-9, Revision October 2018.
(ii) [Reserved]
(4) The following service information was approved for IBR on June 30, 2006 (71 FR 30278, May 26, 2006).
(i) Boeing 757 Maintenance Planning Data Document, Section 9, “Airworthiness Limitations and Certification Maintenance Requirements,” Subsection B. of Boeing Document D622N001-9, Revision “May 2003.”
(ii) Boeing 757 Maintenance Planning Data Document, Section 9, “Airworthiness Limitations and Certification Maintenance Requirements,” Subsection B. of Boeing Document D622N001-9, Revision “June 2005.”
(5) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
(6) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(6) You may view this service information that is incorporated by reference at the
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for Leonardo S.p.A. Model AW189 helicopters. This AD requires inspecting the hydraulic fluid level on each tail rotor (T/R) damper and depending on the inspection results, removing the T/R damper from service and reporting information or repetitively inspecting the T/R damper. This AD is prompted by reports of major leakage of hydraulic fluid in T/R dampers. This condition could result in degradation of T/R damper performance; multiple leaking T/R dampers could result in T/R damage and subsequent loss control of the helicopter. The actions of this AD are intended to address an unsafe condition on these products.
This AD becomes effective March 12, 2020.
The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of March 12, 2020.
The FAA must receive comments on this AD by April 27, 2020.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this final rule, contact Leonardo S.p.A. Helicopters, Emanuele Bufano, Head of Airworthiness, Viale G.Agusta 520, 21017 C.Costa di Samarate (Va) Italy; telephone +39-0331-225074; fax +39-0331-229046; or at
Kristi Bradley, Aerospace Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
This AD is a final rule that involves requirements affecting flight safety, and the FAA did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, the FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, 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 them only one time. The FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. The FAA will consider all the comments received and may conduct additional rulemaking based on those comments.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2019-0160, dated July 5, 2019, to correct an unsafe condition for Leonardo S.p.A. Model AW189 helicopters, with T/R damper part number (P/N) 4F640V00254 with a serial number (S/N) up to LK1229 inclusive. The EASA AD excludes any T/R damper that is marked with “R” on its S/N and any T/R damper that has accumulated 150 flight hours or more since installation on a helicopter and that has been continuously installed for 12 months or more. EASA advises that occurrences were reported of leakage of the T/R damper hydraulic fluid. EASA advises that the T/R damper hydraulic fluid leakage occurred on newly installed T/R dampers and those that had accumulated less than 150 flight hours. Therefore, the EASA AD requires repetitive visual inspections of the hydraulic fluid level of each T/R damper at intervals not to exceed 10 flight hours until the T/R damper accumulates 150 flight hours since first installation and 10 months after the effective date of the EASA AD. The EASA AD also provides a terminating action and requires a ground run following installation of an affected T/R damper. Additionally, depending on the inspection results, the EASA AD requires replacement of the affected part with a serviceable part, returning T/R dampers for re-work and re-identification, and emailing information and pictures to Leonardo Helicopter Division.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is issuing this AD after evaluating all known
Leonardo Helicopters has issued Emergency Alert Service Bulletin (ASB) No. 189-226, dated July 5, 2019. The ASB specifies visually checking for excess hydraulic fluid in each T/R damper and defines the replacement and reporting criteria. The ASB also specifies performing a ground run and subsequent visual check immediately after installing any affected T/R damper on a helicopter.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This AD requires, within 10 hours time-in-service (TIS) inspecting the hydraulic fluid level of each affected T/R damper and repeating the inspection at intervals not to exceed 10 hours TIS until the T/R damper accumulates 150 total hours TIS and has been installed for 12 or more consecutive months. Depending on the hydraulic fluid level, this AD requires removing from service the affected T/R damper and emailing photographs of the sight window showing the hydraulic fluid level and certain information to Leonardo S.p.A Helicopters.
After the effective date of this AD, following installation of an affected T/R damper, this AD requires performing a ground run for at least 30 minutes, inspecting the hydraulic fluid level, and repeating the hydraulic fluid level inspection at intervals not to exceed 10 hours TIS until the T/R damper accumulates 150 total hours TIS and has been installed for 12 consecutive months.
The EASA AD requires returning removed parts to Leonardo Helicopter Division, while this AD does not. Following installation of an affected T/R damper, the EASA AD requires repeating the hydraulic fluid level inspection until the T/R damper accumulates 150 total hours TIS, has been installed for 12 consecutive months, and has been installed for 10 months after the effective date of the EASA AD. This AD requires repeating the hydraulic fluid level inspection until the T/R damper accumulates 150 total hours TIS and has been installed for 12 consecutive months instead.
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 4 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.
Visually inspecting the hydraulic fluid level on all four T/R dampers requires about 1 work-hour for an estimated cost of $85 per helicopter and $340 for the U.S. fleet per inspection cycle.
If required, replacing a T/R damper requires about 2 work-hours and parts cost about $7,170 for an estimated cost of $7,340 per T/R damper.
Reporting information requires about 1 work-hour for an estimated cost of $85 per helicopter.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour 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. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.
Section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking.
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because some of the corrective actions are required within 10 hours TIS. Therefore, notice and opportunity for prior public comment are impracticable and contrary to public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866, and
2. Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Leonardo S.p.A. Model AW189 helicopters, certificated in any category, with a tail rotor (T/R) damper part number (P/N) 4F6420V00254 with a serial number (S/N) up to LK1229 inclusive, installed, except:
(1) Any T/R damper marked with a final dash “R” on the S/N, or
(2) Any T/R damper that has accumulated 150 or more total hours time-in-service (TIS) and has been installed for 12 or more consecutive months.
This AD defines the unsafe condition as leaking T/R damper hydraulic fluid. This condition could result in degradation of T/R damper performance. Multiple leaking T/R dampers could cause T/R damage and subsequent loss of control of the helicopter.
This AD becomes effective March 12, 2020.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 10 hours TIS, inspect each T/R damper as follows: With the T/R damper in the upper position and the sight window downward at a 45-degree angle, inspect the hydraulic fluid level through the sight window using a T/R damper inspection tool.
(i) If the fluid level is over the pointing line in the red zone, before further flight, remove from service the T/R damper.
(ii) If the fluid level is under the pointing line in the white zone, repeat the inspection per paragraph (e)(1) at intervals not to exceed 10 hours TIS.
(2) Within 10 days after removing any T/R damper from service, as required by paragraph (e)(1)(i) of this AD, send photos of the sight window showing the hydraulic fluid level and a completed Table 1 of Leonardo Helicopters Emergency Alert Service Bulletin No. 189-226, dated July 5, 2019 to
(3) For each T/R damper with less than 150 total hours TIS and that has been installed for less than 12 consecutive months, repeat the actions required by paragraph (e)(1) of this AD within every 10 hours TIS until the T/R damper reaches 150 total hours TIS and has been installed for 12 or more consecutive months.
(4) For each T/R damper with less than 150 total hours TIS and that has been installed for 12 or more consecutive months, repeat the actions required by paragraph (e)(1) of this AD within every 10 hours TIS until the T/R damper reaches 150 total hours TIS.
(5) For each T/R damper with 150 or more total hours TIS and that has been installed for less than 12 consecutive months, repeat the actions required by paragraph (e)(1) of this AD until the T/R damper has been installed for 12 consecutive months.
(6) After the effective date of this AD, do not install a T/R damper P/N 4F6420V00254 with S/N up to LK1229 inclusive on any helicopter, unless you have performed a ground run for at least 30 minutes and perform the actions required by paragraph (e)(1) of this AD.
(7) Repeating the inspection until the T/R damper reaches 150 total hours TIS and has been installed for 12 consecutive months constitutes a terminating action for the repetitive inspection required by paragraphs (e)(1) through (5) of this AD.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour 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. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Kristi Bradley, Aerospace Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, the FAA suggests that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
(1) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2019-0160, dated July 5, 2019. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6400, Tail Rotor System.
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Leonardo Helicopters Emergency Alert Service Bulletin No. 189-226, dated July 5, 2019.
(ii) [Reserved]
(3) For Leonardo Helicopters service information identified in this AD, contact Leonardo S.p.A. Helicopters, Emanuele Bufano, Head of Airworthiness, Viale G.Agusta 520, 21017 C.Costa di Samarate (Va) Italy; telephone +39-0331-225074; fax +39-0331-229046; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call 817-222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. This AD was prompted by reports that main landing gear (MLG) trailing arm assemblies were found with compromised paint finish and corrosion on the axle bore inner diameters due to improper removal of contaminants during manufacturing. This AD requires a one-time inspection to determine if an affected MLG trailing arm assembly is installed, repetitive detailed inspections of the inner diameter of the affected MLG trailing arm assembly axle bore for surface finish discrepancies, corrective actions if necessary, and eventual replacement of primer and paint and application of corrosion preventive compound on the inner diameter of all affected MLG trailing arm assembly axle bores, which terminates the repetitive inspections. The FAA is issuing this AD to address the unsafe condition on these products.
This AD becomes effective March 12, 2020.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of March 12, 2020.
The FAA must receive comments on this AD by April 13, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email
You may examine the AD docket on the internet at
Darren Gassetto, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7323; fax 516-794-5531; email
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2019-33R1, dated January 23, 2020 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. You may examine the MCAI on the internet at
This AD was prompted by reports that MLG trailing arm assemblies were found with compromised paint finish and corrosion on the axle bore inner diameters due to improper removal of contaminants during manufacturing. The FAA is issuing this AD to address possible corrosion on the inner diameter of the MLG trailing arm assembly bore, which, if not detected and corrected, could lead to MLG collapse. See the MCAI for additional background information.
Bombardier has issued the following service information.
• Bombardier Service Bulletin 700-1A11-32-026, Revision 01, dated November 27, 2019.
• Bombardier Service Bulletin 700-32-039, Revision 01, dated November 27, 2019.
• Bombardier Service Bulletin 700-32-5016, Revision 01, dated November 27, 2019.
• Bombardier Service Bulletin 700-32-6016, Revision 01, dated November 27, 2019.
This service information describes procedures for a one-time inspection to determine if an affected MLG trailing arm assembly is installed, repetitive detailed inspections of the inner diameter of the affected MLG trailing arm assembly axle bore for surface finish discrepancies, corrective actions if necessary, and eventual replacement of primer and paint and application of corrosion preventive compound on the inner diameter of all affected MLG trailing arm assembly axle bores, which terminates the repetitive inspections. Surface finish discrepancies include corrosion, paint that is bubbling, loose, flaking, cracked, damaged or missing, or primer or metallic-ceramic coating that is visible. Corrective actions include repair or replacement of the MLG trailing arm assembly. These documents are distinct since they apply to different airplane models and configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to a bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this AD because the agency evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this AD and the MCAI or Service Information.” This AD also requires sending the inspection results to Bombardier.
The MCAI specifies to accomplish the one-time inspection to determine if an affected MLG trailing arm assembly is installed within 3 months from November 27, 2019 (the release date of Revision 01 of the applicable service information specified in the Related Service Information under 1 CFR part 51 paragraph of this AD). The FAA has determined that a compliance time of within 30 days after the effective date of this AD is acceptable to address the unsafe condition.
Most ADs adopt a compliance time relative to the AD's effective date. In this case, however, the FAA is using a fixed compliance date in this AD. The MCAI requires operators to accomplish a detailed inspection of the surface finish of affected MLG trailing arm assemblies at a specified time (which varies according to serial number, with the earliest date being 5/12/2020). That compliance time is necessary to address the unsafe condition and is based on risk analysis requirements, including reports of compromised paint finish and corrosion on the axle bore inner diameters. To support this risk analysis and to provide for coordinated implementation of TCCA's regulations in paragraph (i) of this AD, the FAA is using the same compliance dates in this AD.
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the affected trailing arm assemblies have the potential for improper adhesion between the anti-corrosion layers, which could lead to corrosion on the inner diameter of the MLG trailing arm assembly axle bore and possibly lead to MLG collapse. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.
The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
This AD is a final rule that involves requirements affecting flight safety, and the FAA did not precede it by notice and opportunity for public comment. The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
The FAA will post all comments received, without change, to
The FAA estimates that this AD affects 49 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:
We estimate that it takes about 1 work-hour per product to comply with the on-condition reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of reporting the inspection results on U.S. operators to be $85 per product.
According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective March 12, 2020.
None.
This AD applies to Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes, certificated in any category, serial numbers 9001 through 9879 inclusive and 9998 and serial numbers 60001 and subsequent.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by reports that main landing gear (MLG) trailing arm assemblies were found with compromised paint finish and corrosion on the axle bore inner diameters due to improper removal of contaminants during manufacturing. The FAA is issuing this AD to address possible corrosion on the inner diameter of the MLG trailing arm assembly axle bore, which, if not detected and corrected, could lead to MLG collapse.
Comply with this AD within the compliance times specified, unless already done.
For the purposes of this AD, an affected MLG trailing arm assembly is a MLG trailing arm assembly with part number 21410-107 and a serial number listed in Appendix 4, Table 1 of the applicable Bombardier service information specified in figure 1 to paragraphs (g) through (k) and (m) of this AD.
For airplanes having serial numbers 9001 through 9879 inclusive and 9998: Within 30 days after the effective date of this AD: Inspect the right hand and left hand MLG trailing arm assemblies to determine if an affected MLG trailing arm assembly is installed, in accordance with Part A of the Accomplishment Instructions of the applicable service information specified in figure 1 to paragraphs (g) through (k) and (m) of this AD. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number and serial number of the MLG trailing arm assembly can be conclusively determined from that review.
If, during the inspection or review required by paragraph (h) of this AD, it is determined that an affected MLG trailing arm assembly is installed: Before the applicable “1st Inspection Due by Date (MM/DD/YY)” listed for each affected MLG trailing arm assembly serial number in Appendix 4, Table 1 of the applicable Bombardier service information specified in figure 1 to paragraphs (g) through (k) and (m) of this AD, for each affected MLG trailing arm assembly, do a detailed inspection for surface finish discrepancies on the inner diameter of the affected MLG trailing arm assembly axle bore, and, before further flight, do all corrective actions as applicable, in accordance with Part B of the Accomplishment Instructions of the applicable service information specified in figure 1 to paragraphs (g) through (k) and (m) of this AD. For airplanes on which the actions required by paragraph (k) of this AD are done on all affected MLG trailing arm assemblies, no action is required by this paragraph.
For any affected MLG trailing arm assembly on which the inspection required by paragraph (i) of this AD has been accomplished: Within 33 months from the completion of the initial inspection as required by paragraph (i) of this AD, do a detailed inspection of the affected MLG trailing arm assembly for surface finish discrepancies on the inner diameter of the affected MLG trailing arm assembly axle bore, and, before further flight, do all corrective actions as applicable, in accordance with Part C, and Part B as applicable, of the Accomplishment Instructions of the applicable service information specified in figure 1 to paragraphs (g) through (k) and (m) of this AD. For airplanes on which the actions required by paragraph (k) of this AD are done on all affected MLG trailing arm assemblies, no action is required by this paragraph.
For airplanes having serial numbers 9001 through 9879 inclusive and 9998: Within 120 months of each affected MLG trailing arm assembly entry into service, or within 5 days after the effective date of this AD, whichever occurs later, replace the primer and paint and apply the corrosion preventive compound on the inner diameter of the axle bore on all affected MLG trailing arm assemblies, in accordance with Part D of the Accomplishment Instructions of the applicable service information specified in figure 1 to paragraphs (g) through (k) and (m) of this AD. This constitutes terminating action for the requirements of paragraphs (i) and (j) of this AD.
For all airplanes: As of the effective date of this AD, no person may install an affected MLG trailing arm assembly as a replacement part on any airplane, unless that affected MLG trailing arm assembly is marked “SB700-32-041ABC” on the MLG trailing arm assembly modification plate and near the part number.
At the applicable time specified in paragraph (m)(1) or (2) of this AD, submit a report of positive findings of the inspections required by paragraphs (i) and (j) of this AD. Submit the report to Bombardier in accordance with the applicable service information specified in figure 1 to paragraphs (g) through (k) and (m) of this AD. If operators have reported findings as part of obtaining any corrective actions approved by Bombardier, Inc.'s TCCA Design Approval Organization (DAO), they are not required to report those findings as specified in this paragraph.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 10 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 10 days after the effective date of this AD.
This paragraph provides credit for actions required by paragraphs (h) through (k), if those actions were performed before the effective date of this AD using the applicable service information specified in figure 2 to paragraph (n) of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2019-33R1, dated January 23, 2020, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Darren Gassetto, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7323; fax 516-794-5531; email
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (q)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Bombardier Service Bulletin 700-1A11-32-026, Revision 01, dated November 27, 2019.
(ii) Bombardier Service Bulletin 700-32-039, Revision 01, dated November 27, 2019.
(iii) Bombardier Service Bulletin 700-32-5016, Revision 01, dated November 27, 2019.
(iv) Bombardier Service Bulletin 700-32-6016, Revision 01, dated November 27, 2019.
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This correction is effective March 18, 2020.
The effective date of AD 2020-02-19 remains March 18, 2020.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of March 18, 2020 (85 FR 7857, February 12, 2020).
For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email
You may examine the AD docket on the internet at
Andrea Jimenez, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7330; fax 516-794-5531; email
AD 2020-02-19, Amendment 39-19831 (85 FR 7857, February 12, 2020) (“AD 2020-02-19”), currently requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations; revising the applicability to include additional airplanes; and revising certain compliance times. That AD applies to certain Bombardier, Inc., Model CL-600-2B19 (Regional Jet series 100 & 440) airplanes.
As published, paragraph (h)(2) of AD 2020-02-19 contains a typographical error. Paragraph (h)(2) of the AD incorrectly specifies Bombardier CL-600-2B19 Airworthiness Requirements Temporary Revision 2B-2265, dated July 19, 2018, to Appendix B—
Bombardier has issued Bombardier CL-600-2B19 Temporary Revision 2B-2265, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual; and Bombardier CL-600-2B19 Temporary Revision 2B-2266, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual. These temporary revisions describe airworthiness limitations for inspections of the pressure floor skin. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This document corrects an error and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, the FAA is publishing the entire rule in the
The effective date of this AD remains March 18, 2020.
Since this action only corrects a service information reference for the inspection, it has no adverse economic impact and imposes no additional burden on any person. Therefore, the FAA has determined that notice and public procedures are unnecessary.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective March 18, 2020.
This AD replaces AD 2003-09-04 R1, Amendment 39-13305 (68 FR 54985, September 22, 2003) (“AD 2003-09-04 R1”).
This AD applies to Bombardier, Inc., Model CL-600-2B19 (Regional Jet series 100 & 440) airplanes, certificated in any category, serial numbers 7003 through 8999 inclusive.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a report of fatigue cracks occurring on the pressure floor skin at fuselage stations (FS) 460 and 513. The FAA is issuing this AD to address such fatigue cracks, which could result in failure of the pressure floor skin and consequent rapid decompression of the airplane during flight.
Comply with this AD within the compliance times specified, unless already done.
For airplane serial numbers 7003 through 8079 inclusive: Within 30 days from the effective date this AD, revise the existing maintenance or inspection program, as applicable, by incorporating the information specified in Airworthiness Limitations (AWL) task number 53-41-149 specified in Bombardier CL-600-2B19 Airworthiness Requirements Temporary Revision 2B-2265, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual.
(1) The initial compliance time for doing the task is at the time specified in figure 1 to paragraph (g)(1) of this AD, or within 90 days after the effective date of this AD, whichever occurs later.
(2) For airplanes on which Bombardier Service Bulletin 601R-53-067, Bombardier Service Bulletin 601R-53-077, and AWL task number 53-41-194 have been done, the inspections in AWL task number 53-41-149 are not required in the areas covered by doublers at FS460 and FS513.
(3) For airplanes on which the initial inspection has been accomplished at 18,325 or more total flight cycles, and no cracks were found, as of October 7, 2003 (the effective date of AD 2003-09-04), the repetitive interval of 10,000 flight cycles starts from the completion date of the initial inspection.
(4) For airplanes that were previously inspected using AWL task number 53-41-193, perform an inspection using the information specified in AWL task number 53-41-149, provided in Bombardier CL-600-2B19 Airworthiness Requirements Temporary Revision 2B-2265, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual, within 10,000 flight cycles from the previously accomplished inspection.
(1) For airplane serial numbers 8080 through 8999 inclusive: Within 30 days from the effective date of this AD, revise the existing maintenance or inspection program, as applicable, by incorporating the information specified in AWL task number 53-41-193 specified in Bombardier CL-600-2B19 Airworthiness Limitations Temporary Revision 2B-2266, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual. Except as specified in paragraph (h)(2) of this AD, the initial compliance time for doing the task is at the time specified in Bombardier CL-600-2B19 Airworthiness Requirements Temporary Revision 2B-2266, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual, or within 90 days after the effective date of this AD, whichever occurs later.
(2) For airplanes that were previously inspected using AWL task number 53-41-149, perform an inspection by incorporating the information specified in AWL task number 53-41-193, provided in Bombardier CL-600-2B19 Maintenance Requirements Temporary Revision 2B-2266, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual, within 10,000 flight cycles from the previously accomplished inspection.
If any crack is found during any inspection required by this AD, before further flight, repair using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO), and accomplish any repair instructions, including any new airworthiness limitations and inspection requirements accordingly. If approved by the DAO, the approval must include the DAO-authorized signature.
After the maintenance or inspection program has been revised as required by paragraphs (g), (h), and (i) of this AD, as applicable, no alternative actions (
(1)
(i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(ii) AMOCs approved previously for AD 2003-09-04 R1 are approved as AMOCs for the corresponding provisions of this AD.
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2002-39R2, dated August 15, 2019, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7330; fax 516-794-5531; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on March 18, 2020 (85 FR 7857, February 12, 2020).
(i) Bombardier CL-600-2B19 Maintenance Requirements Temporary Revision 2B-2265, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual.
(ii) Bombardier CL-600-2B19 Maintenance Requirements Temporary Revision 2B-2266, dated July 19, 2018, to Appendix B—Airworthiness Limitations, of Part 2 of the Bombardier Maintenance Requirements Manual.
(4) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email
(5) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the navigable waters of Hilo Harbor, Hawaii. The safety zone is needed to protect personnel, vessels and the marine environment from potential hazards associated with ongoing lightering operations of the vessel MIDWAY ISLAND grounded along the northwest side of Hilo Harbor, particularly through helicopter to shore hoisting ops and swimmers in the water. The USCG is overseeing contractor lightering ops to mitigate the pollution threat from the vessel in this area. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Honolulu.
This rule is effective without actual notice from February 26, 2020 until 8 p.m. on March 12, 2020. For the purposes of enforcement, actual notice will be used from February 12, 2020 through February 26, 2020.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Chief Jason R. Olney, Waterways Management Division, U.S. Coast Guard; telephone 808-522-8265, email
On February 05, 2020, a temporary final rule [USCG-2020-0113] was issued to establish a safety zone around the grounded vessel MIDWAY ISLAND. That rule expired at 8 p.m. on February 12, 2020. The Coast Guard is issuing this rule to establish the termporary safety zone so the lightering operations can continue.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to respond to the potential safety hazards associated with this lightering operation, and therefore publishing an NPRM is impracticable and contrary to public interest.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. On February 03, 2020, the Coast Guard was informed of a vessel that ran aground along the northwest side of Hilo Harbor, Hawaii. The Coast Guard COTP Sector Honolulu has determined that potential hazards associated with the lightering operations constitute a safety concern for anyone within the designated safety zone. This rule is necessary to protect personnel, vessels, and the marine environment within the navigable waters of the safety zone during ongoing salvage operations.
This rule establishes a safety zone from February 12, 2020 through 8 p.m. March 12, 2020 or until the lightering operations are complete, whichever is earlier. If the safety zone is terminated prior to 8 p.m. on March 12, 2020, the Coast Guard will provide notice via a broadcast notice to mariners.
The temporary safety zone encompasses all waters extending 100 yards in all directions around the location of ongoing lightering operations near position: 19°44′41.17″ N; 155°05′24.23″ W. This zone extends from the surface of the water to the ocean floor. The zone is intended to protect personnel, vessels, and the marine environment in these navigable waters from potential hazards associated with the lightering operations of a vessel aground in this area. No vessel or person will be permitted to enter the safety zone absent the express authorization of the COTP or his designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the anticipated short duration of the lightering operations and the need to protect personnel, vessels and the marine environment in these navigable waters from potential hazards associated with the lightering operations of the vessel aground in this area. Moreover, the Coast Guard will issue a broadcast notice to mariners on marine channel 16 about the safety zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zones may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 30 days that will prohibit entry into the area during lightering efforts. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01,
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and Recordkeeping Requirements, Security Measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1) All persons are required to comply with the general regulations governing safety zones found in 33 CFR part 165.
(2) Entry into or remaining in this zone is prohibited unless expressly authorized by the COTP or his designated representative.
(3) Persons desiring to transit the safety zone identified in paragraph (a) of this section may contact the COTP at the Command Center telephone number (808) 842-2600 and (808) 842-2601, fax (808) 842-2642 or on VHF channel 16 (156.8 Mhz) to seek permission to transit the zone. If permission is granted, all persons and vessels must comply with the instructions of the COTP or his designated representative and proceed at the minimum speed necessary to maintain a safe course while in the zone.
(4) The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies.
(c)
(d)
(e)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Washington State Implementation Plan (SIP) that were submitted by the Department of Ecology (Ecology). In 1991, Ecology established source-category regulations for kraft pulp mills, sulfite pulping mills, and primary aluminum plants. These source-category regulations contain requirements specific to these types of facilities. However, the source-category regulations also rely upon cross-references to the general air quality regulations to implement program elements such as new source review permitting. Since 1991, many of the cross-references to the general regulations for air pollution sources have changed. The EPA is approving a revision to the SIP updating the cross-references and other miscellaneous changes.
This final rule is effective March 27, 2020.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2019-0636. All documents in the docket are listed on the
Jeff Hunt, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA 98101, at (206) 553-0256, or
Throughout this document, wherever “we,” “us,” or “our” is used, it means the EPA.
On November 5, 2019, Ecology submitted updated portions of Chapters 173-405, 173-410, and 173-415 Washington Administrative Code (WAC) for approval into the SIP. On December 4, 2019, the EPA proposed to approve the submitted changes (84 FR 66366). The reasons for our proposed approval were stated in the proposed rule and will not be re-stated here. The public comment period for our proposed action ended on January 3, 2020. We received no comments.
We are approving and incorporating by reference into the Washington SIP the revisions to Chapters 173-405, 173-410, and 173-415 WAC, State effective May 24, 2019, submitted by Ecology on November 5, 2019. We are also removing from the SIP the outdated and subsequently repealed provisions of WAC 173-415-045, 173-415-050, 173-415-051, and 173-415-080.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) 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 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 it does not address technical standards; 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).
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 it 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 27, 2020. 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 organic compounds.
42 U.S.C. 7401
For the reasons stated in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to conditionally approve revisions to the Maricopa County Air Quality Department (MCAQD or the County) portion of the Arizona State Implementation Plan (SIP). These revisions concern emissions of volatile organic compounds (VOCs) from organic liquid and gasoline storage and transfer operations. We are conditionally approving local rules that regulate these emission sources under the Clean Air Act (CAA or the Act). We are also conditionally approving the County's Reasonably Available Control Technology (RACT) demonstration for the source categories associated with these rules.
This rule will be effective on March 27, 2020.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2019-0493. All documents in the docket are listed on the
Rebecca Newhouse, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3004 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
On September 23, 2019 (84 FR 49699), the EPA proposed to conditionally approve the following rules into the Arizona SIP.
We proposed to conditionally approve these rules pursuant to CAA section 110(k)(4) because, although rule deficiencies preclude full SIP approval pursuant to section 110(k)(3), the rules largely comply with the relevant CAA requirements, and because the MCAQD and the Arizona Department of Environmental Quality (ADEQ) have committed to provide the EPA with a SIP submission within one year of this final action that will include specific rule revisions that would adequately address the deficiencies.
The EPA's proposed action provided a 30-day public comment period. During this period, we received two comments. One member of the public expressed support for our proposed action, stating that “[t]he EPA should approve the revisions contingent on Arizona's submission of further revisions to account for the deficiencies of its SIP.”
The second commenter stated that Maricopa County struggles to meet its air quality standards, and described health and welfare impacts of the area's air quality. The commenter wrote that, “I believe it is due time that Maricopa County enforce and meet the regulatory standards mandated by the EPA,” and that the County's feet should be “held to the fire” because existing air quality actions have not been sufficient. Accordingly, the commenter does not support the EPA's proposal to conditionally approve the SIP revisions. The commenter acknowledged that the changes detailed in the commitment letters allow for RACT to be satisfied, but wrote that the proposed action would set a precedent for changing the regulations without changing the practices that jeopardize young people's health. The commenter cautioned against allowing Maricopa County to satisfy RACT without “demonstrated action.”
The EPA understands the commenter's concerns about the impacts of air quality in Maricopa County. The commenter does not appear to contest that the rules at issue would meet the RACT standard once the County's commitments are fulfilled. Instead the EPA understands the commenter's concern to be with the proposed conditional approval. Section 110(k)(4) of the Act allows the Administrator to conditionally approve a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than one year after the date of approval of the plan revision. The EPA believes that Maricopa County and ADEQ have made the necessary commitments to rectify the deficiencies within the statutory timeframe. The commenter does not contest this. Therefore, the EPA does not understand the commenter to have stated that the Administrator is prohibited from conditionally approving Maricopa County's submission; they have instead asked the EPA to exercise its discretion
Because the commenter does not suggest that the County has not met the statutory requirements for a conditional approval, and a conditional approval would allow the SIP-strengthening provisions in the submittal to go into effect quickly, the EPA is finalizing the conditional approval as proposed.
No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(4) of the Act, the EPA is conditionally approving into the Arizona SIP, Rules 350, 351, 352, and 353, and MCAQD's RACT demonstrations for the 2008 8-hr ozone NAAQS with respect to the following six Control Techniques Guidelines (CTGs), as described in our proposal: Control of Volatile Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof Tanks (EPA-450/2-77-036); Control of Volatile Organic Emissions from Petroleum Liquid Storage in External Floating Roof Tanks (EPA-450/2-78-047); Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals (EPA-450/2-77-026); Control of Volatile Organic Emissions from Bulk Gasoline Plants (EPA-450/2-77-035); Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems (EPA-450/2-78-051); and Design Criteria for Stage I Vapor Control Systems—Gasoline Service Stations (EPA-450/R-75-102). If the MCAQD and the ADEQ submit the required rule revisions by the specified deadline, and the EPA approves the submission, then the identified deficiencies will be cured. However, if MCAQD, through the ADEQ, fails to submit these revisions within the required timeframe, the conditional approval will be treated as a disapproval for those rules for which the revisions are not submitted (and the associated RACT SIP CTG source categories).
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 the MCAQD rules described in the amendments to 40 CFR part 52 set forth below. 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.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action is not an Executive Order 13771 regulatory action because SIP approvals, including conditional approvals, are exempted under Executive Order 12866.
This action does not impose an information collection burden under the PRA because the conditional approvals will not in-and-of themselves create any new information collection burdens, but will simply conditionally approve certain State requirements for inclusion in the SIP.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because 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, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because the conditional approvals will not in-and-of themselves create any new regulations, but will simply conditionally approve certain State requirements for inclusion in the SIP.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
The EPA lacks the discretionary authority to address environmental justice in this rulemaking.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
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 April 27, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) A plan revision for the Maricopa County Air Quality Department (MCAQD) submitted June 22, 2017, by the Arizona Department of Environmental Quality (ADEQ), the Governor's designee, providing MCAQD's Reasonably Available Control Technology (RACT) demonstration for the 2008 8-hour ozone National Ambient Air Quality Standards, and rule submissions in satisfaction thereof.
(1) The conditional approval is based upon the February 25, 2019 commitment from the State to submit a SIP revision consisting of rule revisions that will cure the identified deficiencies. MCAQD commits to submit these rules to the ADEQ within eleven (11) months after the EPA's conditional approval, and ADEQ commits to make the final submission to the EPA not later than twelve (12) months after the EPA's approval. If the State fails to meet its commitment, the conditional approval will be treated as a disapproval with respect to the rules and CTG categories for which the corrections are not made. The following MCAQD rules and additional materials are conditionally approved:
(i) Rule 350,
(ii) Rule 351,
(iii) Rule 352,
(iv) Rule 353,
(v) The RACT demonstration titled “Analysis of Reasonably Available Control Technology for the 2008 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) State Implementation Plan (RACT SIP),” Only those portions of the document beginning with “Gasoline Bulk Plants, Fixed Roof Petroleum Tanks, External Floating Roof Petroleum Tanks, And Gasoline Loading Terminals” on page 33 through the first full paragraph on page 35, and Appendix C: CTG RACT Spreadsheet, the rows beginning with “Gasoline Bulk Plants” on page 60, through “Service Stations—Stage I” on pages 67-69. This demonstration represents the RACT requirement for the following source categories: Control of Volatile Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof Tanks (EPA-450/2-77-036), Control of Volatile Organic Emissions from Petroleum Liquid Storage in External Floating Roof Tanks (EPA-450/2-78-047); Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals (EPA-450/2-77-026); Control of Volatile Organic Emissions from Bulk Gasoline Plants (EPA-450/2-77-035); Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems (EPA-450/2-78-051); and Design Criteria for Stage I Vapor Control Systems—Gasoline Service Stations (EPA-450/R-75-102).
(2) [Reserved]
The revisions and addition read as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the State Implementation Plan (SIP) revisions submitted by the State of Utah on January 4, 2016, which include revisions to Utah's Division of Administrative Rule (DAR) R307-110-10 and maintenance plans for the Salt Lake County, Utah County, and Ogden City nonattainment areas (NAAs) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 microns (PM
This rule is effective on March 27, 2020.
The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2019-0276. All documents in the docket are listed on the
Crystal Ostigaard, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, (303) 312-6602,
Throughout this document “we,” “us,” and “our” means the EPA.
On November 21, 2019 (84 FR 64245), the EPA proposed to approve the Governor of Utah's January 4, 2016 submission, that contains revisions to R307-110-10 (Control Measures for Area and Point Sources, Part A, Fine Particulate Matter) and the PM
We also proposed approval of R307-110-17 (Control Measures for Area and Point Sources, Part H, Emission Limits and Operating Practices) and revisions for Section IX.H.1 and 2 that were submitted on February 15, 2019, and with non-substantive changes submitted on July 1, 2019, August 20, 2019 and October 15, 2019. Additionally, we proposed approval of the revisions in R307-302 (Solid Fuel Burning Devices) for incorporation into the Utah SIP as submitted by the State of Utah on May 9, 2013, May 20, 2014, September 8, 2015 and February 27, 2017.
The EPA received five comments on the proposed action and the comments can be found in the docket: EPA-R08-OAR-2019-0276. The Center for Biological Diversity (CBD) and Western Resource Advocates (WRA) submitted a request to extend the comment period to January 22, 2020. The EPA carefully reviewed this request and maintained the original December 23, 2019 deadline for submitting comments. The CBD and WRA did not submit any additional comments by the December 23, 2019 deadline.
The other four comments included two anonymous comments in agreement with the EPA's proposed rule. Another comment was from the Utah Petroleum Association in agreement with the EPA's proposed rule. Finally, the last comment was anonymous but only contained a partial docket number and other random information. The EPA reviewed this comment and has determined that it falls outside the scope of our proposed action and fails to identify any material issue necessitating a response.
No comments were submitted that changed our assessment of our proposed action. For the reasons stated in our proposed rule, we are finalizing approval of the Governor of Utah's submittal of January 4, 2016, that contains revisions to R307-110-10 and the PM
We are finalizing this redesignation request, the maintenance plans, and R307-110-10 revisions because the Utah Division of Air Quality (UDAQ) has adequately addressed all of the requirements of the Act for redesignation to attainment applicable to the Salt Lake County, Utah County and Ogden City PM
We are also finalizing approval of R307-110-17 and revisions for Section IX.H.1 and 2 that were submitted on February 15, 2019, and with non-substantive changes submitted on July 1, 2019, August 20, 2019 and on October 15, 2019. Additionally, we are finalizing approval of the revisions in R307-302 for incorporation into the Utah SIP as submitted by the State of Utah on May 9, 2013, May 20, 2014, September 8, 2015 and February 27, 2017. This final rule will complete the EPA's October 19, 2016 (81 FR 71988) conditional approval action on the May 9, 2013, May 20, 2014 and September 8, 2015 submittals for R307-302 from UDAQ. We are also approving the transportation conformity MVEBs, for each of the three maintenance areas, as described in our proposed rule.
In this document, the EPA is finalizing regulatory text that includes
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 affect small governments, 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 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).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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 April 27, 2020. 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, Greenhouse gases, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Air pollution control, National parks, Wilderness areas.
40 CFR parts 52 and 81 are amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(e) * * *
42 U.S.C. 7401,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure of the General category January fishery for 2020.
NMFS closes the Atlantic bluefin tuna (BFT) General category fishery for the January subquota period. The intent of this closure is to prevent overharvest of the adjusted January subquota.
Effective 11:30 p.m., local time, February 24, 2020, through May 31, 2020.
Nicholas Velseboer 978-675-2168, Sarah McLaughlin, 978-281-9260, or Larry Redd, 301-427-8503.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
NMFS is required, under regulations at § 635.28(a)(1), to file a closure notice for publication with the Office of the Federal Register when a BFT quota (or subquota) is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year or for a specified period as indicated in the notification, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.
The base quota for the General category is 555.7 mt. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a subquota or portion of the annual General category quota. Although it is called the “January” subquota, the regulations allow the General category fishery under this quota to continue until the subquota is reached or March 31, whichever comes first. The baseline subquotas for each time period are as follows: 29.5 mt for January; 277.9 mt for June through August; 147.3 mt for September; 72.2 mt for October through November; and 28.9 mt for December. Any unused General category quota rolls forward from one time period to the next and is available for use in subsequent time periods within the fishing year. Effective January 1, 2020, NMFS transferred 19.5 mt of the 28.9-mt General category quota allocated for the December 2020 period to the January 2020 period, resulting in an adjusted subquota of 49 mt for the January period and a subquota of 9.4 mt for the December 2020 period (85 FR 17, January 2, 2020). Effective February 5, 2020, NMFS transferred an additional 51 mt from the Reserve category to the General category, in the same notice as NMFS made the annual reallocation of Purse Seine category quota to the Reserve category, resulting in an adjusted subquota of 100 mt for the
Based on the best available General category BFT Landings information (
Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at
NMFS will continue to monitor the BFT fisheries closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing
The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. These fisheries are currently underway and delaying this action would be contrary to the public interest as it could result in BFT landings exceeding the January 2020 subquota, which could result in the need to reduce quota for the General category later in the year and thus could affect later fishing opportunities. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
This action is being taken under § 635.28(a)(1) (BFT fishery closures), and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2020 total allowable catch of pollock for Statistical Area 630 in the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), February 23, 2020, through 1200 hours, A.l.t., March 10, 2020.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2020 total allowable catch (TAC) of pollock in Statistical Area 630 of the GOA is 5,783 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish in the GOA (84 FR 9416, March 14, 2019) and inseason adjustment (84 FR 70436, December 23, 2019).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2020 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 300 mt and is setting aside the remaining 5,483 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.
While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of the Comptroller of the Currency, Treasury, and Federal Deposit Insurance Corporation.
Joint notice of proposed rulemaking: Extension of comment period.
On January 9, 2020, the Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) (collectively, the agencies) published in the
The comment period for the CRA-related NPR published on January 9, 2020 (85 FR 1204),
You may submit comments by any of the following methods:
•
•
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•
You may review comments and other related materials that pertain to this rulemaking action by any of the following methods:
•
•
• Agency Website:
•
•
•
On January 9, 2020, the agencies published in the
The NPR stated that the comment period would close on March 9, 2020. The agencies have received requests to extend the comment period. An extension of the comment period will provide additional opportunity for the public to prepare comments to address the matters raised by the NPR.
Therefore, the OCC and FDIC are extending the comment period for the CRA-related NPR from March 9, 2020 to April 8, 2020.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC is seeking input regarding potential modernization of its sign and advertising rules to reflect that deposit-taking via physical branch, digital, and mobile banking channels continues to evolve since the FDIC last significantly updated its rules in 2006. As banks adjust their business models to innovate and remain competitive, the FDIC is considering how to revise and clarify its sign and advertising rules related to FDIC deposit insurance. The FDIC is issuing this Request for Information (RFI) to inform FDIC efforts to align the policy objectives of its rules and keep pace with how today's banks offer deposit products and services and how consumers connect with banks, including through evolving channels. The FDIC is also seeking input on how to address potential misrepresentations by nonbanks about deposit insurance. In addition, the FDIC requests information about how technological or other solutions could be leveraged to help consumers better distinguish FDIC-insured banks and savings associations from entities that are not insured by the FDIC (nonbanks), particularly across web and digital channels.
Comments must be received by March 19, 2020.
You may submit comments, identified by RIN 3064-ZA14, by any of the following methods:
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All comments received must include the agency name and RIN for this rulemaking.
David Friedman, Senior Policy Analyst, Division of Depositor and Consumer Protection, (202) 898-7168,
The FDIC is an independent federal agency with a mission of maintaining stability and public confidence in the nation's financial system by insuring bank deposits, examining and supervising financial institutions for safety and soundness and consumer protection, making large and complex financial institutions resolvable, and managing
The FDIC's official sign and advertising statement regulations (12 CFR part 328) require banks to continuously display the FDIC sign where insured deposits are usually and normally received in the bank's principal place of business and at all of its branches and to use an official advertising statement, such as “Member FDIC,” when advertising deposit products and services. Sign and advertising statements requirements are set forth in the Banking Act of 1935. The last major changes to the regulations were made in 2006
The FDIC has begun a number of initiatives focused on innovation and technology. For example, the FDIC established the FDIC Tech Lab (“FDiTech”) to foster innovation in the financial services sector, while simultaneously protecting consumers, markets, and the Deposit Insurance Fund. FDiTech is working to lay the foundation for the next chapter of banking by encouraging innovation that meets consumer demand, promotes community banking, reduces compliance burdens, and modernizes the FDIC's supervision of banks.
Technology has advanced the business of banking in many ways, including how and where depositors interface with banks and savings associations when making deposits. The internet, through online and mobile banking, smart phone applications (“apps”), digital wallets, and other tools, has had a profound effect on the way banking and deposit-taking is conducted. Some banks have no physical branches. Remote deposit capture for depositing checks, introduced in the early 2000s, has become a common feature of many banking apps. In addition, some banks have moved away from the traditional branch/bank teller models to electronically-staffed kiosks and pop-up facilities and teller-less cafes where deposits can be accepted on tablets. In addition, some consumers “deposit” funds with prepaid account providers and technologically-focused financial companies (“fintechs”), some of which are not themselves FDIC-insured banks.
Given these banking industry developments, the FDIC is seeking information on its sign and advertising requirements to align with how banks offer products through various deposit-taking channels and how consumers interface with banks.
Consumers may have difficulty distinguishing FDIC-insured banks and savings associations from other entities when they look for deposit products online. The types of potentially confusing, and sometimes misleading, situations consumers may encounter can generally be put into two broad categories: (1) Legitimate third-party business relationships with banks or savings associations; or (2) misrepresentations by certain non-FDIC insured entities.
The first circumstance relates to certain nonbanks (such as fintechs or prepaid account providers) that establish legitimate business relationships with FDIC-insured banks and savings associations. In marketing their services, some nonbanks create websites that prominently display the FDIC logo. Consumers contact the FDIC about such websites, at times under the impression that these websites belong to FDIC-insured banks or savings associations. These nonbank entities typically are not claiming to be banks. Instead, the representation is that they will deposit customer funds at one or more FDIC-insured banks or savings associations, and obtain deposit insurance for customers.
At times, this sort of representation is explicit and clear. However, in other situations, a nonbank may highlight the FDIC logo to communicate safety of funds, while omitting or minimizing significant details about deposit insurance coverage.
In the second type of situation, entities establish websites and falsely claim to be “Member FDIC.” These websites commonly advertise above market interest rates and, by including the FDIC logo or in some other way claiming to be an FDIC-insured bank or savings association, they seek to convey legitimacy. More often than not, these entities are not themselves insured banks or do not have a relationship with an insured bank and do not offer accounts insured by the FDIC. In 2019, the FDIC requested that internet service providers take down over 65 such websites. Consumers who do not realize these websites are fraudulent may divulge personally identifiable information (“PII”) or transfer money, often by wire. In some cases, the amount of money can be significant, and the consumer often cannot recover his/her funds. To assist consumers, the FDIC maintains a database (BankFind
Given the significant changes in the marketplace, technological developments, and rapidly evolving consumer behaviors, the FDIC is issuing this RFI to seek public input regarding modernizing the FDIC's official sign and advertising rules (12 CFR part 328) to reflect the continued evolution of physical branch, digital, and mobile banking channels. The FDIC is also seeking input about how it might address misrepresentations in this area. In addition, this RFI is requesting information about how technological and other solutions could be leveraged to allow consumers to better distinguish FDIC-insured banks or savings associations from nonbanks across digital and mobile channels.
The FDIC encourages comments from all interested parties, including but not limited to insured banks and savings associations, technology companies and fintechs, other financial institutions or companies, depositors and financial consumers (of both FDIC-insured and uninsured institutions), consumer groups, researchers, trade associations, and other members of the financial services industry. In particular, the FDIC requests input on the following topics and questions:
The Federal Deposit Insurance Act (“FDI Act”) requires that insured depository institutions display a sign relating to the insurance of deposits at each place of business maintained by
The FDIC seeks comments on all aspects of the sign regulation, including the following specific questions:
1. Should the rule continue to require the sign be a minimum size and a specific color? Is this needed to ensure consumers understand “deposit insurance?”
2. Should the rule continue to link the placement of the sign to each teller station or window where insured deposits are usually and normally received?
3. Should the rule take into account changes in places where deposits are “usually and normally received” by banks? How?
4. Should the FDIC's current approach of allowing for permissive or optional placement and use of signage be broadened? How?
5. Does the rule's definition of “Remote Service Facility” appropriately reflect current banking practices? For example, should the list of facilities (any automated teller machine, cash dispensing machine, point-of-sale terminal, or other remote electronic facility where deposits are received) be broadened? If so, what other “facilities” should be included?
6. Are FDIC-insured institutions currently displaying a digital representation of the FDIC sign or logo on their websites/mobile apps at account opening? If not, should they do so?
7. Are FDIC-insured institutions currently displaying a digital representation of the FDIC sign or logo on their websites/mobile apps each time a consumer deposits funds? If not, should they do so?
8. Are alternative means of displaying an official FDIC sign, beyond a two-dimensional placard, appropriate in places such as cafes and through digital means? How might this be implemented for different delivery channels (
9. As noted above, the current regulation requires that the official FDIC sign be displayed continuously at each station or window where insured deposits are usually and normally received in the depository institution's principal place of business and at all of its branches. Should the rule continue to require that the sign be displayed continuously, or should it allow for digital displays or representations that are not continuously displayed?
10. To what extent do the existing rules enable consumers to distinguish between FDIC-insured institutions and uninsured entities? Are there data, surveys, and studies on this issue?
The current rule requires bank advertisements
Insured depository institutions may not include the official advertising statement or other statements that imply Federal deposit insurance in any advertisement relating solely to “non-deposit products” or “hybrid products.”
The FDIC seeks comments on all aspects of the official advertising statement regulation, including the following specific questions:
11. Can the regulation be better clarified regarding which types of advertising require the inclusion of the official advertising statement? Should some forms of advertising currently subject to the requirement be made exempt? Are there newer forms of advertising that do not now but should include the official advertising statement?
12. How do banks currently provide the advertising statement when promoting deposit products through non-traditional channels?
13. If a bank is identified in a nonbank's promotion or advertisement for a deposit product or service, should the advertising statement be required, or conversely, should it be prohibited given that the deposit product or service is from an uninsured entity?
The rule seeks to ensure that only insured banks and savings associations use the FDIC sign and advertising statement so consumers can have confidence when deposit accounts are advertised as insured. It is illegal to misuse the FDIC name or make false representations regarding deposit insurance.
The FDIC has not issued specific regulations regarding false representations related to FDIC insurance. The FDIC seeks information regarding misrepresentations in this
14. Are there examples of potential risks related to misrepresentations involving FDIC deposit insurance coverage that the FDIC should address, including those related to deposit products through use of the internet or other emerging technologies?
15. What changes can be made to the FDIC sign and advertising statement requirements that could deal with preventing misrepresentations regarding FDIC deposit insurance?
16. Are there ways that certain nonbanks should be able to advertise or otherwise represent a legitimate business relationship with an FDIC-insured institution that would be clear to consumers and consistent with the provision on misrepresentation?
17. In allowing the use of their name or mark, should banks be responsible for ensuring the proper use of the FDIC's logo, advertising and representations by nonbanks with whom the banks do business?
The FDIC regularly receives reports of fraudulent communications made to consumers that appear to be from FDIC-insured entities, but actually originate from fraudsters. These types of scams may involve a variety of electronic communication channels, including emails, websites, text messages, and social media posts. Some scam messages might ask the recipient to “confirm” or “update” confidential personal financial information, such as bank account numbers, Social Security numbers, dates of birth and other valuable details. Other scams might ask for payments or deposits to be sent, for example, by money order, Automated Clearing House (“ACH”) credit, wire transfer service, peer-to-peer payment service, gift cards, or digital currency. Banks also face risks that fraudsters may be using their names and brands to perpetrate such frauds.
The FDIC is exploring whether technological or other solutions might enable consumers to validate when they are interacting with a FDIC-insured financial institution, and not a fraudster, when visiting websites and using apps on mobile devices. The FDIC seeks comments on how technology might be utilized to allow consumers to distinguish FDIC-insured banks and savings association from nonbanks across various web and digital channels, including the following specific questions:
18. Do consumers look for the FDIC name or logo when using financial institution websites and apps to confirm the validity of insured institutions' authenticity? Do they look for the logo when deciding to open new deposit accounts? During every interaction?
19. What technological options or other approaches could be utilized to allow consumers to distinguish FDIC-insured banks and savings associations from nonbanks across web and digital channels? What are the benefits and drawbacks of each approach? Is it necessary or desirable for the FDIC to try to “solve” this by rule, or can private sector initiatives better address this issue?
20. If the FDIC develops a technological solution to allow consumers to distinguish FDIC-insured banks and savings associations from nonbanks across web and digital channels, what challenges would institutions have in implementing such solutions? How would any solution work with third parties that have established legitimate business relationships with banks or savings associations?
21. If the FDIC develops a technological solution to allow consumers to distinguish FDIC-insured banks and savings associations from nonbanks across web and digital channels, should its use be limited to FDIC-insured banks, or should third parties that market or facilitate access to deposit products (
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 737-8 and 737-9 airplanes. This proposed AD was prompted by a report that certain exterior fairing panels on the top of the engine nacelle and strut (the thumbnail fairing and mid strut fairing panels) may not have the quality of electrical bonding necessary to ensure adequate shielding of the underlying wiring from the electromagnetic effects of lightning strikes or high intensity radiated fields (HIRF), which could potentially lead to a dual engine power loss event from a critical lightning or HIRF exposure event. This proposed AD would require a detailed inspection of the thumbnail fairing panels and mid strut fairing panels for excessive rework of the metallic (aluminum foil) inner surface layer, replacement of any excessively reworked panels, and modification of the thumbnail fairing assembly to ensure adequate bonding. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by March 27, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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•
•
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For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
Christopher Baker, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3552; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Christopher Baker, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3552; email:
The FAA has received a report from Boeing indicating that exterior fairing panels on the top of the engine nacelle and strut (the thumbnail fairing and mid strut fairing panels) may not have the quality of electrical bonding necessary to ensure adequate shielding of the underlying wiring from the electromagnetic effects of lightning strikes or HIRF. Excessive rework of the surface of the metallic (aluminum foil) inner layer of those panels can result in cuts to that layer. This metallic layer functions as part of the shielding for aircraft wiring, including wiring associated with the engine control systems. Cuts to the metallic layer, depending on their size and location, could create the potential for HIRF exposure or lightning attachment to induce spurious signals onto the underlying airplane wiring, including wiring associated with the engine control systems. Such spurious signals could cause a loss of engine thrust control. This loss of thrust control could simultaneously affect both engines in two different ways. The wiring for both engines could be independently exposed to the electromagnetic effects from the same HIRF or lightning event, or the signals induced on one engine's control system could be induced onto the other engine's wiring via common avionics system connections. This condition, if not addressed, could result in a forced off-airport landing or excessive flightcrew workload due to loss of thrust control on both engines.
The FAA reviewed Boeing Special Attention Service Bulletin 737-54-1056, dated December 11, 2019. This service information describes procedures for a detailed inspection of the thumbnail fairing panels and mid strut fairing panels for excessive rework of the metallic (aluminum foil) inner surface layer (resulting in foil cuts), replacement of any excessively reworked panels, and modification of the thumbnail fairing assembly to ensure adequate bonding. Modification actions include doing a form-in-place gasket of the thumbnail land assemblies; preparing the mating surfaces between the thumbnail fairing panel and the left and right thumbnail land assemblies; and doing a bond check of the thumbnail fairing panel and the thumbnail land assemblies on the left and right side of the thumbnail fairing panel on both engines.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA is proposing this AD because the agency evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures, see this service information at
Boeing Special Attention Service Bulletin 737-54-1056, dated December 11, 2019, specifies a compliance time of 6 months to do the actions. However, for this proposed AD, the actions must be done before further flight. The proposed compliance time is based on the potential for a common-cause failure of both engines. The FAA has determined this compliance time is appropriate to address the identified unsafe condition.
Additionally, the effectivity of Boeing Special Attention Service Bulletin 737-54-1056, dated December 11, 2019, lists certain line numbers of Model 737-8 and 737-9 airplanes. However, the FAA is not certain that the service bulletin lists all airplanes affected by the unsafe condition identified in this proposed AD. Thus, the applicability of this proposed AD is expanded to include all line numbers for Model 737-8 and 737-9 airplanes that may be affected by the identified unsafe condition. This will ensure that all potentially affected airplanes are subject to the proposed AD.
The FAA estimates that this proposed AD affects 128 airplanes of U.S. registry.
The FAA estimates the following costs to do any necessary modifications that would be required based on the results of the proposed inspection. The FAA has no way of determining the number of aircraft that might need these modifications:
According to the manufacturer, all of the costs of this proposed AD will be covered under warranty, thereby reducing the cost impact on affected persons. The FAA does not control warranty coverage for affected persons. As a result, the FAA has included all known costs in the cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments by March 27, 2020.
None.
This AD applies to The Boeing Company Model 737-8 and 737-9 airplanes included in line numbers 5602 through 7901, certificated in any category.
Air Transport Association (ATA) of America Code 54, Nacelles/pylons.
This AD was prompted by a report that certain exterior fairing panels on the top of the engine nacelle and strut (the thumbnail fairing and mid strut fairing panels) may not have the quality of electrical bonding necessary to ensure adequate shielding of the underlying wiring from the electromagnetic effects of lightning strikes or high intensity radiated fields (HIRF), which could potentially lead to a dual engine power loss event from a critical lightning or HIRF exposure event. The FAA is issuing this AD to address this condition, which could result in a forced off-airport landing or excessive flightcrew workload due to loss of thrust control on both engines.
Comply with this AD within the compliance times specified, unless already done.
Before further flight, do a detailed inspection of the thumbnail fairing panels and mid strut fairing panels for excessive rework of the metallic (aluminum foil) inner surface layer, and, before further flight, do the modification as applicable in accordance with Steps 4., 6. through 9., inclusive, 11., and 12. of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-54-1056, dated December 11, 2019.
Special flight permits, as described in 14 CFR 21.197 and 21.199, may be issued to operate the airplane to a location where the requirements of this AD can be accomplished, but concurrence by the Manager, Seattle ACO Branch, FAA, is required before issuance of the special flight permit. Requests for a special flight permit
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Christopher Baker, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3552; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Bell Helicopter Textron, Inc. (Bell) Model 214ST helicopters. This proposed AD was prompted by the discovery of bolts with nonconforming external thread root radii. This proposed AD would require removing the affected bolts from service and would prohibit installing an affected bolt on any helicopter. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by April 13, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Bell Helicopter Textron, Inc., P.O. Box 482, Fort Worth, TX 76101; telephone 817-280-3391; fax 817-280-6466; or at
You may examine the AD docket on the internet at
Haytham Alaidy, Aviation Safety Engineer, DSCO Branch, Compliance and Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; phone: 817-222-5224; fax: 817-222-4960; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
The FAA will post all comments received, without change, to
The FAA proposes to adopt a new AD for Bell Model 214ST helicopters with certain serial-numbered spindle to yoke bolts (bolts) part number (P/N) 214-010-262-103 installed. Bell indicates that a former bolt supplier manufactured a number of P/N 214-010-262-103 bolts with nonconforming external thread root radii. This proposed AD would apply to Model 214ST helicopters with a non-conforming bolt installed and would require removing each bolt from service. The proposed AD would also prohibit installing a non-conforming bolt on any helicopter. The proposed actions are intended to prevent the spindle separating from the yoke and subsequent loss of control of the helicopter.
The FAA reviewed Bell Helicopter Textron Alert Service Bulletin 214ST-
The FAA is proposing this AD after evaluating all the relevant information and determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would apply to Model 214ST helicopters with a bolt P/N 214-010-262-103 with S/N BH179163, BH179164, BH179169, BH179170, BH179171, BH179175, BH179176, BH179178, BH224783, BH224751, BH224756, BH224764, BH224765, BH383851, BH383853, BH383855, BH383856, BH383857, BH383858, BH383860, BH383861, BH383862, BH383864, BH383865, BH383868, BH383872, BH383873, BH383878, or BH383879 installed. This proposed AD would require, within 25 hours time-in-service (TIS), removing each affected bolt from service. This proposed AD would also prohibit, after the effective date of this AD, installing an affected bolt on any helicopter.
The service information specifies torque checking the bolt every 25 hours until it is replaced upon reaching its life limit, while this proposed AD would require removing each bolt from service within 25 hours TIS.
The FAA estimates that this proposed AD would affect 16 helicopters of U.S. registry. The FAA estimates that operators may incur the following costs in order to comply with this proposed AD. Labor costs are estimated at $85 per work-hour.
Replacing 1 bolt would take about 8 work-hours and parts would cost about $7,073 for an estimated cost of $7,753 per helicopter.
The FAA has no way of determining the number of bolts that might need to be replaced.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, all costs are included in this cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments by April 13, 2020.
None.
This AD applies to Bell Helicopter Textron, Inc. Model 214ST helicopters, certificated in any category, with a spindle to yoke bolt (bolt) part number (P/N) 214-010-262-103 and serial number (S/N) BH179163, BH179164, BH179169, BH179170, BH179171, BH179175, BH179176, BH179178, BH224783, BH224751, BH224756, BH224764, BH224765, BH383851, BH383853, BH383855, BH383856, BH383857, BH383858, BH383860, BH383861, BH383862, BH383864, BH383865, BH383868, BH383872, BH383873, BH383878, or BH383879 installed.
Joint Aircraft System Component (JASC) Code 6200, Main Rotor.
This AD was prompted by the discovery that bolts have nonconforming external thread root radii. The unsafe condition, if not addressed, could result in the spindle separating from the yoke and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 25 hours time-in-service, remove from service each bolt listed in paragraph (c) of this AD.
(2) After the effective date of this AD, do not install on any helicopter a bolt with a P/N and S/N listed in paragraph (c) of this AD.
(1) The Manager, DSCO Branch, Compliance and Airworthiness Division, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Haytham Alaidy, Aviation Safety Engineer, DSCO Branch, Compliance and Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; phone: 817-222-5224; fax: 817-222-4960; email:
(2) For information about AMOCs, contact
Issued in Fort Worth, Texas, on February 13, 2020.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace extending upward from 700 feet above the surface at Roben-Hood Airport, Big Rapids, MI. The FAA is proposing this action as the result of an airspace review caused by the cancellation and revision of the instrument procedures at this airport. The geographic coordinates of the airport would also be updated to coincide with the FAA's aeronautic database. Airspace design is necessary for the safety and management of instrument flight rules (IFR) operations at this airport.
Comments must be received on or before April 13, 2020.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2020-0142/Airspace Docket No. 20-AGL-7, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11D, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Roben-Hood Airport, Big Rapids, MI, to support IFR operations at this airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2020-0142/Airspace Docket No. 20-AGL-7.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Class E airspace extending upward from 700 feet above the surface within a 6.6-mile radius (decreased from a 6.7-mile
This action is the result of an airspace review caused by the cancellation and revision of the instrument procedures at this airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Roben-Hood Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace extending upward from 700 feet above the surface at Muhlenberg County Airport, Greenville, KY, and Madisonville Regional Airport, Madisonville, KY. The FAA is proposing this action as the result of the decommissioning of the Central City VHF omnidirectional range (VOR) navigation aid, which provided navigation information for the instrument procedures at these airports, as part of the VOR Minimum Operational Network (MON) Program. Additionally, the name of Madisonville Regional Airport and the geographic coordinates of both airports would be updated to coincide with the FAA's aeronautical database.
Comments must be received on or before April 13, 2020.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2020-0140/Airspace Docket No. 20-ASO-5, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11D, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2020-0140/Airspace Docket No. 20-ASO-5.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:
Amending the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius (increased from a 6.4-mile radius) of Muhlenberg County Airport, Greenville, KY; removing the city associated with the airport in the airspace legal description to comply with changes to FAA Order 7400.2M, Procedures for Handling Airspace Matters; and updating the geographic coordinates of the airport to coincide with the FAA's aeronautic database;
And amending the Class E airspace extending upward from 700 feet above the surface at Madisonville Regional Airport, Madisonville, KY, by updating the name (previously Madisonville Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautic database.
This action is the result of an airspace review caused by the decommissioning of the Central City VOR, which provided navigation information for the instrument procedures at these airports, as part of the VOR MON Program.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Muhlenberg County Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Madisonville Regional Airport.
Drug Enforcement Administration, Department of Justice.
Notice of proposed rulemaking.
The Drug Enforcement Administration (DEA) proposes to revise the existing regulations for narcotic treatment programs (NTPs) to allow a mobile component associated with the registered program to be considered a coincident activity. The NTP registrants that operate or wish to operate mobile components (in the state that the registrant is registered in) to dispense narcotic drugs in schedules II-V at a remote location for the purpose of maintenance or detoxification treatment would not be required to obtain a separate registration for a mobile component. This proposed rule would waive the requirement of a separate registration at each principal place of business or professional practice where controlled substances are dispensed for those NTPs with mobile components that fully comply with the requirements of the proposed rule, once finalized. These revisions to the regulations are intended to make maintenance or detoxification treatments more widely available, while ensuring that safeguards are in place to reduce the likelihood of diversion.
Electronic comments must be submitted, and written comments must be postmarked, on or before April 27, 2020. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
To ensure proper handling of comments, please reference “RIN 1117-AB43/Docket No. DEA-459” on all correspondence, including any attachments.
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Scott A. Brinks, Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, Diversion Control Division; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (571) 362-3261.
Please note that all comments received are considered part of the public record. They will, unless reasonable cause is given, be made available by the Drug Enforcement Administration (DEA) for public inspection online at
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify the confidential business information to be redacted within the comment.
Comments containing personal identifying information and confidential business information identified as directed above will generally be made publicly available in redacted form. If a comment has so much confidential business information or personal identifying information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to
An electronic copy of this document and supplemental information to this notice of proposed rulemaking are available in their entirety under the tab “Supporting Documents” of the public docket of this action at
The Controlled Substances Act (CSA) generally provides, with certain exceptions, that all persons who are required to register under the Act must obtain a separate registration “at each principal place of business or professional practice” where such persons manufacture, distribute, or dispense a controlled substance. 21 U.S.C. 822(e)(1). However, the CSA authorizes the Administrator of DEA (by delegation from the Attorney General) to issue regulations waiving the requirement of registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety. 21 U.S.C. 822(d).
Pursuant to this latter provision, DEA is hereby proposing a regulation that would waive the requirement of a separate registration for NTPs that
The impetuses for this notice of proposed rulemaking (NPRM) are the opioid epidemic currently affecting the nation and the desire to design additional ways to curtail this epidemic. During 2017, 70,237 deaths occurred as a result of drug overdoses, including 47,600 deaths (67.8%) that involved an opioid.
In April of 2000, DEA, in association with the American Methadone Treatment Association (now the American Association for the Treatment of Opioid Dependence), developed guidelines for NTPs to follow to ensure greater stability in the treatment process by using the same standard throughout the United States.
There are more than 1,700 NTPs registered with DEA, including opioid treatment programs, detoxification treatment services that utilize methadone, and compounders. Prior to 2007, DEA authorized mobile NTPs on an ad hoc basis. Since then, it has placed a moratorium on further such authorizations, resulting in a gradual decline in the number of mobile NTPs. During the past five years, 19 NTPs have operated a mobile component. Currently, eight NTPs operate mobile units under those agreements.
As indicated above, the CSA generally requires all persons who dispense controlled substances—including NTPs—to be registered at each “principal place of business or professional practice” where they dispense controlled substances. This requirement is reiterated in DEA regulations. 21 CFR 1301.12. While the CSA and DEA regulations do not define the term “principal place of business or professional practice,” in one case, a federal court looked to 21 CFR 1301.12(b)(3) in evaluating this question and focused on whether the practitioner “regularly engaged in the dispensing or administering of controlled substances” at a particular location as determinative of whether a separate registration is required at such location.
It is not necessary for purposes of this proposed rule to attempt to define precisely the meaning of the term “principal place of business or professional practice” or to attempt to examine the various scenarios in which that term might apply to a mobile NTP. It is sufficient to note that there may be circumstances in which a mobile NTP would operate in such a manner that it would be considered to have a “principal place of business or professional practice” at one or more consistent remote locations and, therefore, would need to obtain a separate registration at such remote locations under 21 U.S.C. 822(e)(1). Because DEA has concluded that it is consistent with the public health and safety to allow mobile NTPs to operate without obtaining such separate registrations at remote locations, the agency is hereby proposing to waive this requirement through the promulgation
It should be noted that DEA has always required, with limited exceptions, practitioners to have separate registrations in each state in which they dispense controlled substances.
As indicated, the CSA allows DEA to issue a regulation waiving the requirement of registration for certain categories of registrants where the Administrator finds it consistent with the public health and safety. For the reasons discussed above, DEA concludes that allowing for the use of mobile NTPs under the conditions specified in this proposed rule would increase access to OUD treatment, which will be beneficial to the public health and safety. This conclusion is further supported by DEA's belief that under the conditions specified in the proposed rule, there would be minimal risk of diversion. DEA bases this view about the minimal diversion risk on historical information gathered from mobile components that have operated or are currently operating.
A review of theft and loss reports from 2005 to 2017 shows that NTPs did not distinguish thefts and losses occurring at the registered location from those occurring at mobile facilities. There was only one report that concluded theft or loss occurred at a mobile NTP. However, this mobile NTP is no longer operational as the registrant voluntarily surrendered DEA registration. Furthermore, since 2017, there have not been any additional mobile NTP reports of thefts or losses of controlled substances submitted to DEA.
DEA conducted an analysis of the costs and benefits of this proposed rule, and concludes that its promulgation will result in a net cost savings between $1,297,670 and $1,482,272 over a five-year period. This proposed rule would enable NTPs to expand their treatment availability to patients via mobile units rather than being limited to registering and opening additional brick-and-mortar locations only. DEA's comparative analysis shows that the cost of operating a mobile unit is less than the cost of operating a physical location, yielding the aforementioned savings. A complete discussion of the costs and benefits of this proposed rule can be found in the Regulatory Analyses below.
This proposed rule describes under what circumstances mobile components of NTPs would be able to transport and dispense controlled substances away from their registered locations within the same state as the registered NTP. The rule also sets forth proposed requirements for security, recordkeeping, reporting, and inventory for those mobile components that wish to transport controlled substances away from a registered location for dispensing at a mobile NTP.
It is important to note that these mobile components would not be permitted to share or transfer controlled substances from one mobile component to another while deployed outside of the registered location. Nor would mobile components be permitted to act as reverse distributors.
In section 1300.01, DEA is proposing to add a definition for mobile narcotic treatment programs (mobile NTPs). This definition reflects that a mobile NTP is a motor vehicle that serves as a mobile component of an NTP, which engages in maintenance and/or detoxification treatment with narcotic drugs in schedules II-V, at a location remote from, but within the same state as, the registered NTP, and which operates under the registration of the NTP. Because the proposed mobile NTP definition references a motor vehicle, DEA also proposes to separately define “motor vehicle” as a vehicle propelled under its own motive power and lawfully used on public streets, roads, or highways with more than three wheels in contact with the ground; a motor vehicle does not include a trailer in this context. Therefore, under DEA's proposed rule, a trailer could not serve as a mobile NTP.
DEA regulations have always required that all registrants maintain effective security to guard against theft and diversion of controlled substances.
Also, as indicated, DEA proposes to revise section 1301.13 to make operating a mobile component of an NTP a coincident activity of an existing NTP registration, provided the NTP has obtained prior approval from the local DEA office. DEA intends to lessen the regulatory burden on NTPs by waiving the separate DEA registration requirement, as discussed above, and allowing them to operate a mobile component of an NTP in the same state as the registered NTP, under its existing registration. As a result, the mobile component of an NTP would not have to apply for a separate registration, as it would be considered coincident activity. Furthermore, DEA proposes to specify in the regulations that the records generated during the operations of a mobile component of an NTP shall be maintained at the location of the registered NTP, rather than requiring such records to be stored at the location of the mobile component. This is discussed in part 1304 of the proposed
DEA is proposing to revise section 1301.72 to ensure controlled substances in a mobile component of an NTP are protected against theft and diversion. To achieve this end, DEA is proposing that the security requirements under 21 CFR 1301.72(a)(1) and 21 CFR 1301.72(d) become applicable to the mobile components of an NTP. The storage area for controlled substances in a mobile component of a NTP must not be accessible from outside the vehicle. The proposed requirement to secure the controlled substances in a securely locked safe in the conveyance will assist in adequately securing the controlled substances. Since small quantities of controlled substances will be present in the mobile component, DEA is proposing that the safe used by these mobile components have safeguards against forced entry, lock manipulation, and radiological attacks. The safe must also be bolted or cemented to the floor or wall in such a way that it cannot be readily moved. DEA is also proposing that the safe be equipped with an alarm system that transmits a signal directly to a central protection company or a local or State police agency which has a legal duty to respond, or a 24-hour control station operated by the registrant, or such other protection as the Administrator may approve if there is an attempted unauthorized entry into the safe.
Upon completion of the operation of the conveyance on a given day, the conveyance would need to be immediately returned to the registered location, and all controlled substances removed from the conveyance and secured within the registered location. If the mobile component is disabled for any reason (mechanical failure, accident, fire, etc.), the registrant would be required to have a protocol in place to ensure that the controlled substances on the conveyance are secure and accounted for. If the conveyance is taken to an automotive repair shop, all controlled substances would need to be removed and secured at the registered location.
Under the proposed rule, registrants would not be required to obtain a separate registration for conveyances (mobile components) utilized by the registrant to transport controlled substances away from registered locations for dispensing within the same state at unregistered locations. Vehicles must possess valid county/city and state information (
DEA takes this opportunity to remind authorized persons transporting controlled substances to dispense at an unregistered location that the DEA-approved conveyance they utilize to transport these controlled substances is a controlled premise subject to administrative inspection pursuant to 21 U.S.C. 880. The CSA includes in its definition of controlled premises “conveyances, where persons registered under [21 U.S.C. 823] (or exempt from registration under [21 U.S.C. 822(d)] or by regulation of the Attorney General) . . . may lawfully hold . . . distribute, dispense, administer, or otherwise dispose of controlled substances.” 21 U.S.C. 880(a)(2). Included within this section's scope of inspection for controlled premises, the CSA grants DEA inspectors the right, “[e]xcept as may otherwise be indicated in an applicable inspection warrant . . . to inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished drugs . . . and other substances or materials, containers, and labeling found therein.” 21 U.S.C. 880(b)(3).
DEA is aware that state and federal security requirements for controlled substances may vary. However, it is the responsibility of the registrant to be aware of these requirements and follow both state and federal regulations, or whichever has the stricter requirements. Registrants and practitioners should continue to consult with their State Opioid Treatment Authority or equivalent office to ensure compliance, as referenced in DEA April 2000 Narcotic Treatment Program Best Practice Guide.
DEA is proposing to revise 21 CFR 1301.74 to include mobile components of DEA-registered NTPs, since the existing regulations do not contain such a provision. As described in the proposed revisions to section 1301.74, personnel who are authorized to dispense controlled substances for narcotic treatment must ensure proper security measures and patient dosage. For example, DEA is proposing that persons enrolled in any NTP, including those who received treatment at a mobile NTP, would be required to wait in an area that is physically separated from the narcotic storage and dispensing area by a physical entrance such as a door or other entryway.
Under the proposed revisions, the distribution and delivery of narcotic drugs in schedules II-V to mobile NTPs would only be permitted by the registrant at the registrant's registered location. Persons who are permitted to deliver narcotic drugs in schedules II-V to mobile NTPs will not be able to: Receive narcotic drugs in schedules II-V from other mobile NTPs or any other entity; deliver narcotic drugs in schedules II-V to other mobile NTPs or any other entity; or conduct reverse distribution of controlled substances on a mobile NTP. Any controlled substances being transported for disposal from the dispensing location of the mobile component shall be secured and disposed of in compliance with part 1317 and all other applicable federal, state, tribal, and local laws and regulations.
Finally, the proposed physical security controls of mobile components would need to be implemented by the NTP pursuant to 21 CFR 1301.72 and 1301.74. In the event of a security breach in which controlled substances are lost or stolen, the registrant must determine the significance of the loss and look to the theft and loss reporting requirements in 21 CFR 1301.74(c).
Under the proposed rule, the recordkeeping requirements of 21 CFR 1304 would apply to mobile components of NTPs. DEA is proposing revisions to sections 1304.04 and 1304.24 to include mobile components. As with brick and mortar NTPs, the records of the mobile components would be stored at the registered location of the NTP in a manner that meets all applicable security and confidentiality requirements, and must be readily retrievable.
Currently 21 CFR 1304.24(b) requires that a brick and mortar NTP maintain the records, required by 21 CFR 1304.24(a), in a dispensing log at the NTP site. It is understood that this log is in paper form. As an alternative to maintaining a paper dispensing log, DEA is proposing that an NTP or its mobile component may also use an automated/computerized data processing system for the storage and retrieval of the program's dispensing records, if a number of conditions are met: The automated system maintains the same information required in 21 CFR 1304.24(a) for paper records; the automated system has the capability of producing a hard copy printout of the program's dispensing records; the NTP or its mobile component prints a hard copy of each day's dispensing log, which is then initialed appropriately by each person who dispensed medication
DEA also is proposing that the NTP's computer software program be required to be capable of producing accurate summary reports for the brick and mortar location and its mobile component, for any time-frame selected by DEA personnel during an investigation. Further, if these summary reports are maintained in hard copy form, DEA proposes that they should be kept in a systematically organized file located at the registered site of the NTP. Additionally, DEA is also proposing that the NTP or its mobile component be required to maintain an off-site back-up of all computer generated program information.
Finally, DEA is proposing that NTPs be required to retain all records for the brick and mortar NTP as well as the mobile component two years from the date of execution. This time period is the same period as that required by 21 CFR 1304.04(a). However, because some states require that records be retained for longer than two years, the NTP should contact its State Opioid Treatment Authority for information about state requirements.
DEA examined each of the provisions of the proposed rule to estimate its economic impact. DEA's analytic approach focuses on comparing the costs and/or cost-savings of a “no action” baseline regulatory environment with the costs and/or cost-savings of the regulatory environment that would result from the promulgation of this proposed rule. This is the standard analytic framework codified in the OMB Circular A-4, published on September 17, 2003. This proposed rule is an enabling rule designed to expand access to medication-assisted treatment (MAT) offered by NTPs in underserved communities. Previously, DEA had only authorized mobile NTPs on an ad hoc basis, and had placed a moratorium on further such authorizations in 2007. Thus, DEA compared the costs of delivering MAT services in a baseline regulatory environment in which no new mobile NTPs are authorized, to the costs of delivering an equivalent level of MAT services in the proposed regulatory environment in which a registered NTP may begin to operate a mobile component as a coincident activity. This analysis, detailed below, finds that this proposed rule will result in a cost savings for DEA registered NTPs in the form of reduced startup, labor, and operating costs of MAT services delivered via a mobile component. DEA also recognizes that this proposed rule is likely to result in benefits in the form of economic burden reductions (health care costs, criminal justice costs, and lost productivity costs), as access to treatment for underserved communities is expected to expand. However, DEA does not have a good basis to estimate the totality of this benefit with any accuracy since data on the number of patients treated via existing mobile components are not available. Thus, while these benefits are not quantified, DEA expects that this proposed rule will result in a net benefit to society.
MAT has been shown to be an effective opioid treatment option—a 2014 meta-analysis concluded that MAT has significantly increased treatment retention and decreased illicit opioid use.
Because DEA is not currently authorizing new mobile NTPs, for an NTP registrant to provide MAT services to patient populations with little or no access to an NTP, the registrant would be required to register and open another brick-and-mortar location in the underserved geographic area. The many fixed capital and operating expenses associated with the startup and ongoing operation of a new facility discourage providers from doing this. For example, registrants would be required to obtain another NTP registration at $244 per year and incur the cost of renting additional office space, and ensuring that the new location meets DEA requirements, that it is appropriately licensed by the state, and that it is accredited by an accrediting organization approved by the Substance Abuse and Mental Health Services Administration (SAMHSA). Additionally, opening a new location would entail additional staffing and facilities costs. Under the proposed regulatory environment, registrants would be able to operate a mobile component as a coincident activity of their existing facility, foregoing the expenses of a brick-and-mortar expansion in favor of the comparatively lower cost of operating a mobile component.
DEA believes it is reasonable to assume that in any given geographic region, the fixed capital expenses of opening a new brick-and-mortar location (most significantly office rent) will always exceed the capital expenses of operating a mobile component (most significantly the purchase price of a conveyance to be converted to a mobile NTP). These major capital expenses are discussed and compared in detail in the following paragraph; however, it is important to first set boundaries for this analysis by discussing what costs will not be included and why. DEA assumes that two significant expenses are the same for both activities, and therefore, are excluded from the analysis: The
DEA also recognizes that there are startup costs that will be the same for both activities. This includes the purchase of medical equipment and basic office supplies, and the installation of a section 1301.72(a)(1)(iii)-compliant alarm system. Such startup costs are accordingly also omitted from this analysis. Whether MAT services are being rendered via a mobile conveyance or traditional office environment, the same type and quantity of labor, medical equipment, and security equipment is assumed needed to deliver the same amount of treatment while adhering to DEA regulations.
According to the National Association of Realtors, the average annual price per square foot for office space throughout the United States was $46 in the first quarter of 2017.
There are also several operating expenses that are unique to a mobile conveyance that should be factored into this analysis. The first is the cost of the narcotic safe and associated installation costs. DEA recognizes that while both a mobile conveyance and a traditional NTP office require a safe, the confined space of a mobile conveyance likely requires some amount of customization in the installation process in order to meet the requirements of 21 CFR 1301.72(a)(1). To account for this unique installation cost, DEA doubled the highest quoted price of the safe
Comparing the present value of the costs associated with operating a mobile NTP over a five-year period with the present value of the costs associated with opening a brick-and-mortar NTP over a five-year period yields a net present value of cost savings between $318,855 (at a 7% discount rate) and $359,131 (at a 3% discount rate) for the operation of a mobile NTP. The comparison of costs between the baseline and proposed regulatory environment are summarized in the tables below:
DEA does not have a systematic method for estimating how many NTP registrants that are currently deterred or prevented from opening additional brick-and-mortar sites due to costs might take advantage of this enabling rule to begin operating a mobile NTP. DEA also recognizes that, because of their fixed locations, brick-and-mortar sites are more limited in the geographic area they can reasonably serve than are mobile units. DEA conservatively estimates, however, that this number would at least equal the number of NTP registrants that operated mobile components at some point in the previous five years under ad hoc agreements with DEA field offices. There have been 19 such NTP registrants, and there are currently eight with mobile components still in operation.
For the reasons outlined in the comparative analysis discussed above, DEA concludes that moving from the baseline regulatory environment to the regulatory environment of the proposed rule results in a cost reduction for NTP registrants that wish to expand their services to new geographic areas, and will spur an increase in the number of mobile NTPs. Therefore, this proposed rule is a deregulatory action that will result in a net cost savings between $3,507,405 and $3,950,441.
This proposed rule was developed in accordance with the principles of Executive Orders 12866, 13563, and 13771. Executive Order 12866 directs 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). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. DEA expects that this proposed rule will not have an annual effect on the economy of $100 million or more in at least one year and therefore is not an economically significant regulatory action. DEA examined each of the provisions of the proposed rule to estimate its economic impact, comparing the costs and/or cost-savings of a “no action” baseline regulatory environment with the costs and/or cost-savings of the regulatory environment that would result from the promulgation of this proposed rule. This proposed rule is an enabling rule designed to expand the supply of medication-assisted treatment (MAT) providers, and DEA currently has only authorized mobile NTPs on an ad hoc basis, with a present moratorium on further such authorizations. Thus, DEA compared the costs of delivering MAT
For a number of years, DEA has allowed registered NTPs to utilize mobile units as part of their programs through special arrangements with local DEA field offices. The use of these mobile units was in response to the opioid epidemic that is currently affecting the nation. With the number of deaths attributed to overdoses increasing, the demand for access to medication-assisted treatment increased. In many areas, this has resulted in long wait lists and high service fees for services provided by NTPs. Alternative guidelines and methods were sought to increase accessibility to treatment for people with SUD including OUD, especially in rural areas or areas where NTPs are not accessible, or to allow those who have health conditions that prevent them from traveling long distances to receive maintenance or detoxification treatment. Mobile units associated with the registered NTP were seen as an alternative because they increased accessibility to treatment in the areas that needed it.
This NPRM builds on the existing experience and provides additional flexibility for NTPs in operating mobile units, subject to regulatory restrictions put into place to prevent the diversion of controlled substances. DEA is proposing to revise 21 CFR 1301.13 to make operating a mobile component of an NTP a coincident activity of an existing NTP registration, and intends to lessen the regulatory burden on NTPs by waiving the separate DEA registration requirement. These mobile units would be required to maintain effective security to guard against theft and diversion of controlled substances in accordance with 21 CFR 1301.72. The mobile NTPs would also be subject to the recordkeeping requirements in 21 CFR 1304.04 and 1304.24. Many of the current mobile units are already following these regulatory requirements. This proposed rule, once finalized, will ensure that these regulatory requirements can be enforced consistently over any current or future NTP wishing to operate a mobile unit.
Thus, this proposed rule, once promulgated, would enable any NTP registered with DEA to engage in an activity that was previously authorized through special arrangements with DEA field offices. Furthermore, DEA's purpose for allowing registered NTPs to operate a mobile unit as a coincident activity is to expand the availability of MAT in accordance with the priorities outlined in The President's Commission on Combating Drug Addiction and The Opioid Crisis, published on November 1, 2017.
The Office of Information and Regulatory Affairs (OIRA) has determined that the proposed rule is a “significant regulatory action” under Executive Order 12866. Accordingly, this rule has been reviewed by OIRA.
Executive Order 13771 was issued on January 30, 2017, and published in the
This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
This proposed rule does not have federalism implications warranting the application of Executive Order 13132. The proposed rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This proposed rule does not have tribal implications warranting the application of Executive Order 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
In accordance with the Regulatory Flexibility Act (RFA), DEA evaluated the impact of this rule on small entities. DEA's evaluation of economic impact by size category indicates that the rule will not, if promulgated, have a significant economic impact on a substantial number of these small entities.
The RFA requires agencies to analyze options for regulatory relief of small entities unless it can certify that the rule will not have a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. DEA evaluated the impact of this rule on small entities and discussions of its findings are below.
To determine the proposed rule's effect on small entities, DEA must first calculate the total number of affected entities. To do this, DEA must determine the total number of NTP entities in the United States, as those are the entities that are able to take advantage of this enabling rule.
DEA begins with the number of relevant DEA registrations—that is, NTP registrations. The number of NTP entities differs from the number of NTP registrations, however, because NTP entities often hold more than one DEA registration, such as where a registrant handles controlled substances at
To do so, DEA first determined the North American Industry Classification System (NAICS)
DEA then gathered economic data for those codes using the U.S. Census Bureau, Statistics of U.S. Businesses (SUSB). Specifically, DEA used the SUSB data to determine the number of “firms” and the number of “establishments” in the United States that correspond to each relevant NAICS code. (For the purposes of this analysis, the term “firm” as defined in the SUSB is used interchangeably with “entity” as defined in the RFA.) From this, DEA calculated a firm-to-establishment ratio—
Because an
Thus, based on these calculations, DEA estimates that 851 entities could currently make use of the proposed rule, including the eight NTP entities that currently operate mobile NTP components. Of these, DEA estimates that at least an additional 11 entities will choose to operate a mobile NTP as a coincident activity in response to the proposed rule, matching the previous total of 19 mobile NTPs that were in operation over the previous five years. Because the proposed rule is an enabling rule and thus does not affect entities that choose not to change their behavior in response to it, only NTP entities that choose to establish mobile NTP units would be affected by the rule. Therefore, DEA estimates that 1.29% (11 of 851) of total NTP entities in the
To estimate the number of NTP entities that are small entities for RFA purposes, DEA used a process similar to that used to estimate the total number of NTP entities. As described above, U.S. Small Business Administration (SBA)
DEA used SUSB data to estimate the number of small firms for each of these NAICS codes. In 2012, the last year for which the SUSB has published the necessary receipts data,
In consultation with the SBA's Office of Advocacy, DEA has adopted the SBA standard that the amount of small entities affected by a proposed rule is “substantial” if 30% or more of the relevant group of small entities will be affected by the rule. As described in the Summary of Costs and Benefits section, this proposed rule is an enabling rule and a deregulatory action resulting in a total cost savings of at least $3,507,405 over a five-year period. The proposed rule allows NTP registrants another option for expanding the reach of their services, if they so choose, without requiring that current or future NTP registrants change their business practices or incur any costs. DEA estimates that only an additional 11 entities will choose to operate a mobile NTP as a coincident activity in response to the proposed rule. Because the proposed rule is an enabling rule and thus does not affect entities that do not change their behavior in response to it, only these 11 NTP entities and the 8 NTPs currently operating units under ad hoc agreements are affected by the rule. Therefore, DEA estimates that 2.23% (19 of 851) of total NTP entities in the United States are affected by this proposed rule. DEA estimates that 11 NTPs not already operating a mobile NTP (or 1.29% of all NTPs) will choose to operate a mobile unit. DEA has no reason to conclude that the percentage of small NTP entities that begin operating mobile components in response to the rule will differ from the percentage of total NTPs (11 of 851, or 1.29%), especially since most NTP entities are small. Thus, DEA estimates that 1.29% (9 of the 719
The 9 affected small entities are estimated to realize the same cost savings as other affected entities, as calculated above: Between $318,855 (at a 7% discount rate) and $359,131 (at a 3% discount rate) per entity over a five-
The table below summarizes the analysis.
DEA examined the economic impact of the proposed rule for each affected industry for various size ranges. Based on the analysis above, and because of these facts, DEA certifies this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501
This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-3521. This action would not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. Although the proposed rule revises certain recordkeeping and reporting provisions to explicitly apply them to mobile NTPs, these provisions already apply to NTPs in general and thus do not impose any new collection of information requirement.
Chemicals, traffic control.
Administrative practice and procedure, Drug traffic control, Security measures.
Drug traffic control, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, DEA proposes to amend 21 CFR parts 1300, 1301, and 1304 as follows:
21 U.S.C. 802, 821, 822, 829, 871(b), 951, 958(f).
(b) * * *
21 U.S.C. 821, 822, 823, 824, 831, 871(b), 875, 877, 886a, 951, 952, 956, 957, 958, 965 unless otherwise noted.
(e) * * *
(1) * * *
(4) For any narcotic treatment program intending to operate a mobile narcotic treatment program, the registrant must notify the local DEA
(i) Registrants are not required to obtain a separate registration for conveyances (mobile components) utilized by the registrant to transport controlled substances away from registered locations for dispensing at unregistered locations as part of a mobile narcotic treatment program. Vehicles must possess valid county/city and state information (
(ii) A mobile narcotic treatment program is not permitted to reverse distribute, share, or transfer controlled substances from one mobile component to another mobile component while deployed outside of the registered location. Stationary narcotic treatment programs with mobile components are not allowed to modify their registrations to authorize their mobile components to act as collectors under 21 CFR 1301.51 and 1317.40. These mobile components of narcotic treatment programs may not function as hospitals, long-term care facilities, or emergency medical service vehicles, and will not transport patients.
(e)
The revisions and additions are to read as follows:
(j) Persons enrolled in any narcotic treatment program, including those receiving treatment at a mobile narcotic treatment program, will be required to wait in an area that is physically separated from the narcotic storage and dispensing area by a physical entrance such as a door or other entryway. Patients will need to wait outside of a mobile NTP if that unit does not have seating or a reception area that is separated from the narcotic storage and dispensing area. This requirement will be enforced by the program physician and employees.
(k) All narcotic treatment programs, including mobile narcotic treatment programs, must comply with standards established by the Secretary of Health and Human Services (after consultation with the Administration) respecting the quantities of narcotic drugs which may be provided to persons enrolled in a narcotic treatment program or mobile narcotic treatment program, for unsupervised use (
(l) DEA may exercise discretion regarding the degree of security required in narcotic treatment programs, including mobile narcotic treatment programs, based on such factors as the location of a program, the number of patients enrolled in a program and the number of physicians, staff members and security guards. Personnel that are authorized to dispense controlled substances for narcotic treatment must ensure proper security measures and patient dosage. Similarly, such factors will be taken into consideration when evaluating existing security or requiring new security at a narcotic treatment program or mobile narcotic treatment program.
(m) Any controlled substances being transported for disposal from the dispensing location of a mobile narcotic treatment program shall be secured and disposed of in compliance with part 1317, and all other applicable federal, state, tribal, and local laws and regulations.
(n) A conveyance used as part of a mobile NTP may only be supplied with narcotic drugs by the registered NTP that operates such conveyance. Persons permitted to dispense controlled substances to mobile NTPs shall not:
(1) Receive controlled substances from other mobile NTPs or any other entity;
(2) Deliver controlled substances to other mobile NTPs or any other entity; or
(3) Conduct reverse distribution of controlled substances on a mobile NTP.
21 U.S.C. 821, 827, 831, 871(b), 958(e)-(g), and 965, unless otherwise noted.
(a) Each person registered or authorized (by § 1301.22 of this chapter) to maintain and/or detoxify controlled substance users in a narcotic treatment program, including a mobile narcotic treatment program, shall maintain records with the following information for each narcotic controlled substance:
(1) Name of substance;
(2) Strength of substance;
(3) Dosage form;
(4) Date dispensed;
(5) Adequate identification of patient (consumer);
(6) Amount consumed;
(7) Amount and dosage form taken home by patient; and
(8) Dispenser's initials.
(b) The records required by paragraph (a) of this section will be maintained in a dispensing log at the NTP site, or in the case of a mobile NTP, at the registered site of the NTP, and will be maintained in compliance with § 1304.22 without reference to § 1304.03.
(1) As an alternative to maintaining a paper dispensing log, an NTP or its mobile component may also use an automated/computerized data processing system for the storage and retrieval of the program's dispensing records, if the following conditions are met:
(i) The automated system maintains the information required in paragraph (a);
(ii) The automated system has the capability of producing a hard copy printout of the program's dispensing records;
(iii) The NTP or its mobile component prints a hard copy of each day's dispensing log, which is then initialed appropriately by each person who dispensed medication to the program's patients;
(iv) The automated system is approved by DEA;
(v) The NTP or its mobile component maintains an off-site back-up of all computer generated program information; and
(vi) The automated system is capable of producing accurate summary reports for both the registered site of the NTP and any mobile component, for any time-frame selected by DEA personnel during an investigation. If these summary reports are maintained in hard copy form, they must be kept in a systematically organized file located at the registered site of the NTP.
(2) The NTP must retain all records for the NTP as well as any mobile component two years from the date of execution, in accordance with § 1304.04(a). However, if the State in which the NTP is located requires that records be retained longer than two years, the NTP should contact its State Opioid Treatment Authority for information about state requirements.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that provide guidance under section 274 of the Internal Revenue Code (Code) regarding certain statutory amendments made to section 274 by 2017 legislation. Specifically, the proposed regulations address the elimination of the deduction under section 274 for expenditures related to entertainment, amusement, or recreation activities, and provide guidance to determine whether an activity is of a type generally considered to be entertainment. The proposed regulations also address the limitation on the deduction of food and beverage expenses under section 274(k) and (n), including the applicability of the exceptions under section 274(e)(2), (3), (4), (7), (8), and (9). These proposed regulations affect taxpayers who pay or incur expenses for meals or entertainment in taxable years beginning after December 31, 2017. This document also provides notice of a public hearing on these proposed regulations.
Written or electronic comments must be received by April 13, 2020. Outlines of topics to be discussed at the public hearing scheduled for April 7, 2020, at 10 a.m. must be received by April 13, 2020. If no outlines are received by April 13, 2020, the public hearing will be cancelled.
Submit electronic submissions via the Federal Rulemaking Portal at
Concerning the proposed regulations, call Patrick Clinton of the Office of Associate Chief Counsel (Income Tax and Accounting), (202) 317-7005; concerning the submission of comments, the hearing, or to be placed on the building access list to attend the hearing, call Regina Johnson, (202) 317-6901 (not toll-free numbers), or email
This document contains proposed regulations under section 274 of the Code that amend the Income Tax Regulations (26 CFR part 1). Section 274 was added to the Code by section 4 of the Revenue Act of 1962, Public Law 87-834 (76 Stat. 960) and has been amended numerous times over the years. In general, section 274 limits or disallows deductions for certain meal and entertainment expenditures that otherwise would be allowable under chapter 1 of the Code, primarily under section 162(a), which allows a deduction for ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.
On December 22, 2017, section 274 was amended by section 13304 of Public Law 115-97 (131 Stat. 2054), commonly referred to as the Tax Cuts and Jobs Act, (TCJA) to revise the rules for deducting expenditures for meals and entertainment, effective for amounts paid or incurred after December 31, 2017.
Section 274(a)(1)(A) generally disallows a deduction for any item with respect to an activity of a type considered to constitute entertainment, amusement, or recreation
Section 274(a)(1)(B) disallows a deduction for any item with respect to a facility used in connection with an activity referred to in section 274(a)(1)(A). Section 274(a)(2) provides that, for purposes of applying section 274(a)(1), dues or fees to any social, athletic, or sporting club or organization shall be treated as items with respect to facilities. Section 274(a)(3) disallows a deduction for amounts paid or incurred for membership in any club organized for business, pleasure, recreation, or other social purpose.
Prior to amendment by the TCJA, section 274(n)(1) generally limited the deduction of food or beverage expenses and entertainment expenditures to 50 percent of the amount that otherwise would have been allowable. Thus, under prior law, taxpayers could deduct 50 percent of meal expenses and 50 percent of entertainment expenditures that met the directly related or business discussion exception. Distinguishing between meal expenses and entertainment expenditures was unnecessary for purposes of the 50 percent limitation.
Section 13304(a)(1) of the TCJA repealed the directly related and business discussion exceptions to the general prohibition on deducting entertainment expenditures in section 274(a)(1)(A). Also, section 13304(a)(2)(D) of the TCJA amended the 50 percent limitation in section 274(n)(1) to remove the reference to entertainment expenditures. Thus, entertainment expenditures are no longer deductible unless one of the nine exceptions to section 274(a) in section 274(e) applies.
While the TCJA eliminated the deduction for entertainment expenses, Congress did not amend the provisions relating to the deductibility of business meals. Thus, taxpayers generally may continue to deduct 50 percent of the food and beverage expenses associated with operating their trade or business, including meals consumed by employees on work travel. See H.R. Rep. No. 115-466, at 407 (2017) (Conf. Rep.). However, as before the TCJA, no deduction is allowed for the expense of any food or beverages unless (a) the expense is not lavish or extravagant under the circumstances, and (b) the taxpayer (or an employee of the taxpayer) is present at the furnishing of the food or beverages. See section 274(k).
Prior to amendment by the TCJA, section 274(d) provided substantiation requirements for deductions under section 162 or 212 for any traveling expense (including meals and lodging while away from home), and for any item with respect to an activity of a type considered to constitute entertainment, amusement, or recreation or with respect to a facility used in connection with such activity. Section 13304(a)(2)(A) of the TCJA repealed the substantiation requirements for entertainment expenditures. Traveling expenses (including meals and lodging while away from home), however, remain subject to the section 274(d) substantiation requirements. Food and beverage expenses are subject to the substantiation requirements under section 162 and the requirement to maintain books and records under section 6001.
On October 15, 2018, the Treasury Department and the IRS published Notice 2018-76, 2018-42 I.R.B. 599, providing transitional guidance on the deductibility of expenses for certain business meals and requesting comments for future guidance to further clarify the treatment of business meal expenses and entertainment expenditures under section 274. Under the notice, taxpayers may deduct 50 percent of an otherwise allowable business meal expense if: (1) The expense is an ordinary and necessary expense under section 162(a) paid or incurred during the taxable year in carrying on any trade or business; (2) the expense is not lavish or extravagant under the circumstances; (3) the taxpayer, or an employee of the taxpayer, is present at the furnishing of the food or beverages; (4) the food and beverages are provided to a current or potential business customer, client, consultant, or similar business contact; and (5) in the case of food and beverages provided during or at an entertainment activity, the food and beverages are purchased separately from the entertainment, or the cost of the food and beverages is stated separately from the cost of the entertainment on one or more bills, invoices, or receipts. The notice provides that the entertainment disallowance rule may not be circumvented through inflating the amount charged for food and beverages.
The Treasury Department and the IRS received approximately 25 comments in response to Notice 2018-76. All comments were considered and are available at
Section 274(n)(1) generally limits the deduction of food or beverage expenses, including expenses for food or beverages consumed while away from home, to 50 percent of the amount that otherwise would have been allowable, unless one of the six exceptions to section 274(n) in section 274(e) applies. However, no deduction is allowed for the expense of any food or beverages unless (a) the expense is not lavish or extravagant under the circumstances, and (b) the taxpayer (or an employee of the taxpayer) is present at the furnishing of the food or beverages. See section 274(k). Section 274(d) provides substantiation requirements for traveling expenses, including food and beverage expenses incurred while on business travel away from home.
Section 274(m) provides additional limitations on travel expenses. Section 274(m)(1) generally limits the deduction for luxury water transportation expenses to twice the highest federal per diem rate allowable at the time of travel, and section 274(m)(2) generally disallows a deduction for expenses for travel as a form of education. Section 274(m)(3) provides that no deduction is allowed under chapter 1 of the Code (other than section 217) for travel expenses paid or incurred with respect to a spouse, dependent, or other individual accompanying the taxpayer (or an officer or employee of the taxpayer) on business travel, unless: (A) The spouse, dependent, or other individual is an employee of the taxpayer, (B) the travel
Prior to amendment by the TCJA, section 274(n)(1) generally limited the deduction for food or beverage expenses to 50 percent of the amount that otherwise would have been allowable, subject to an exception in section 274(n)(2)(B) in the case of an expense for food or beverages that is excludable from the gross income of the recipient under section 132 by reason of section 132(e), relating to
Section 274(k)(2) and (n)(2)(A) provide that the limitations on the deduction of food or beverage expenses in sections 274(k)(1) and (n)(1), respectively, do not apply if the expense is described in paragraph (2), (3), (4), (7), (8), or (9) of section 274(e). Expenses described in paragraph (1), (5), and (6) of section 274(e) are not exceptions to the limitations on the deduction of food or beverage expenses in section 274(k)(1) and (n)(1). However, they are exceptions to the disallowance on deduction of entertainment expenses in section 274(a).
Section 274(e)(2) applies to expenses for goods, services, and facilities to the extent that the expenses are treated as compensation to the recipient. Section 274(e)(3) applies to expenses incurred by a taxpayer in connection with the performance of services for an employer or other person under a reimbursement or other expense allowance arrangement. Section 274(e)(4) applies to expenses for recreational, social, or similar activities for employees. Section 274(e)(7) applies to expenses for goods, services, and facilities made available to the general public. Section 274(e)(8) applies to expenses for goods or services that are sold by the taxpayer in a bona fide transaction for adequate and full consideration in money or money's worth. Section 274(e)(9) applies to expenses for goods, services, and facilities to the extent that the expenses are treated as income to a person other than an employee.
The proposed regulations describe and clarify the statutory requirements of section 274(a), 274(k), and 274(n), as well as the applicability of certain exceptions under section 274(e) to food or beverage expenses. To implement the TCJA's disallowance of entertainment expenditures under section 274(a), the proposed regulations add a new section at § 1.274-11 (proposed § 1.274-11) for entertainment expenditures paid or incurred after December 31, 2017. The proposed regulations also add a new section at § 1.274-12 (proposed § 1.274-12) to address food or beverage expenses under section 274(k) and 274(n) paid or incurred after December 31, 2017, including the application of the exceptions in section 274(e)(2), (3), (4), (7), (8), and (9). Specifically, proposed § 1.274-12 addresses expenses for business meals as described in Notice 2018-76, as well as expenses for other meals including travel meals and employer-provided meals.
Proposed § 1.274-11 restates the statutory rules under section 274(a), including the application of the entertainment deduction disallowance rule to dues or fees to any social, athletic, or sporting club or organization. The proposed regulations substantially incorporate the existing definition of entertainment in § 1.274-2(b)(1), with minor modifications to remove outdated language. The proposed regulations also confirm that the nine exceptions in section 274(e) continue to apply to entertainment expenditures under section 274(a). Finally, as described further in part I.B. of this Explanation of Provisions, the proposed regulations provide that for purposes of section 274(a), the term “entertainment” does not include food or beverages unless the food or beverages are provided at or during an entertainment activity and the costs of the food or beverages are not separately stated from the entertainment costs.
Taxpayers may continue to rely upon the existing rules in § 1.274-2, to the extent applicable and not superseded by the TCJA, for entertainment expenditures paid or incurred after December 31, 2017.
The proposed regulations substantially incorporate the guidance in Notice 2018-76 to distinguish between entertainment expenditures and food or beverage expenses in the context of business meals provided at or during an entertainment activity. In addition, the proposed regulations generally apply the guidance in Notice 2018-76 to all food or beverages, including travel meals and employer-provided meals, provided at or during an entertainment activity. However, in response to a comment on the notice, the proposed regulations further clarify the rules applicable to food or beverages provided at or during an entertainment activity.
Notice 2018-76 explains that in the case of food and beverages provided during or at an entertainment activity, the taxpayer may deduct 50 percent of an otherwise allowable business expense if the food and beverages are purchased separately from the entertainment, or if the cost of the food and beverages is stated separately from the cost of the entertainment on one or more bills, invoices, or receipts. The notice provides that the entertainment disallowance rule may not be circumvented through inflating the amount charged for food and beverages. Taxpayers may continue to rely on the guidance in Notice 2018-76 until these proposed regulations are finalized.
One commenter asked for clarification of the requirement in the notice that the entertainment disallowance rule may not be circumvented by inflating the amount charged for food and beverages on one or more bills, invoices, or receipts. In response, the proposed regulations provide that the amount charged for food or beverages on a bill, invoice, or receipt must reflect the venue's usual selling cost for those items if they were to be purchased separately from the entertainment, or
As noted earlier in this Explanation of Provisions, the proposed regulations substantially incorporate the guidance in Notice 2018-76 addressing business meals provided during or at an entertainment activity. The proposed regulations also incorporate other statutory requirements taxpayers must meet to deduct 50 percent of an otherwise allowable business meal expense. Specifically, the expense must not be lavish or extravagant under the circumstances and the taxpayer, or an employee of the taxpayer, must be present at the furnishing of the food or beverages.
The proposed regulations also address the general requirement in Notice 2018-76 that the food and beverages be provided to a business contact, which was described in the notice as a “current or potential business customer, client, consultant, or similar business contact.” This requirement is to ensure that the meal expenses are directly connected with or pertaining to the taxpayer's trade or business, as required under section 162. One commenter on Notice 2018-76 requested a definition of “potential business contact,” suggesting that the term could be interpreted broadly to include almost anyone. In response to the comment, and to conform the rule more closely to the trade or business requirement in section 162, the proposed regulations follow the definition of “business associate” as currently provided in § 1.274-2(b)(2)(iii). Thus, the proposed regulations provide that the food or beverages must be provided to a “person with whom the taxpayer could reasonably expect to engage or deal in the active conduct of the taxpayer's trade or business such as the taxpayer's customer, client, supplier, employee, agent, partner, or professional adviser, whether established or prospective.” In addition to clarifying this definition for purposes of determining whether a business meal expense is deductible, the proposed regulations apply this standard to the deduction of food or beverage expenses generally. In particular, the proposed regulations include employees as a type of business associate, making the standard applicable to employer-provided meals as well as to situations in which a taxpayer provides meals to both employees and non-employee business associates at the same event. The Treasury Department and the IRS request comments on this standard.
Although the TCJA did not specifically amend the rules for travel expenses, the proposed regulations are intended to provide comprehensive rules for food and beverage expenses and thus apply the general rules for meal expenses from Notice 2018-76, as revised in these proposed regulations, to travel meals. In addition, the proposed regulations incorporate the substantiation requirements in section 274(d), unchanged by the TCJA, to travel meals. Finally, the proposed regulations apply the limitations in section 274(m)(3) to expenses for food or beverages paid or incurred while on travel for spouses, dependents or other individuals accompanying the taxpayer (or an officer or employee of the taxpayer) on business travel. These limitations do not apply to deductions for moving expenses under section 217. However, the TCJA amended section 217 to suspend the deduction for moving expenses for taxable years beginning after December 31, 2017, and before January 1, 2026, except with respect to certain members of the Armed Forces. Thus, the proposed regulations revise the reference to section 217 to reflect that amendment.
The proposed regulations apply the business meal guidance in Notice 2018-76, as revised in these proposed regulations, to food or beverage expenses generally. Under section 274(n)(1), the deduction for food or beverage expenses generally is limited to 50 percent of the amount that would otherwise be allowable. Prior to the TCJA, under section 274(n)(2)(B), expenses for food or beverages that were excludable from employee income as
Under section 274(k)(1), in order for food or beverage expenses to be deductible the food or beverages must not be lavish or extravagant under the circumstances and the taxpayer or an employee of the taxpayer must be present at the furnishing of the food or beverages. However, as discussed in part E of this Explanation of Provisions, section 274(e) provides six exceptions to the limitations on the deduction of food or beverages in section 274(k)(1) and 274(n)(1) and the proposed regulations explain how those exceptions apply.
In response to comments that the Treasury Department and the IRS received after enactment of the TCJA, the proposed regulations address several scenarios involving the deductibility of food or beverage expenses. For example, commenters requested guidance on the deductibility of expenses for: (i) Food or beverages provided to food service workers who consume the food or beverages while working in a restaurant or catering business; (ii) snacks available to employees in a pantry, break room, or copy room; (iii) refreshments provided by a real estate agent at an open house; (iv) food or beverages provided by a seasonal camp to camp counselors; (v) food or beverages provided to employees at a company cafeteria; and (vi) food or beverages provided at company holiday parties and picnics. The Treasury Department and the IRS considered all comments received and provide examples in proposed § 1.274-12(c) to address many of the factual scenarios raised by commenters.
The proposed regulations provide that the deduction limitation rules generally apply to all food and beverages, whether characterized as meals, snacks, or other types of food or beverage items. In addition, unless one of the six exceptions under section 274(n)(2)(A) applies, the deduction limitations apply regardless of whether the food or beverages are treated as
The proposed regulations define food or beverage expenses to mean the cost of food or beverages, including any delivery fees, tips, and sales tax. In the case of employer-provided meals at an eating facility, food or beverage expenses do not include expenses for the operation of the eating facility such as salaries of employees preparing and serving meals, and other overhead costs.
Section 274(k)(2) and (n)(2)(A) provide that the limitations on deductions in section 274(k)(1) and (n)(1), respectively, do not apply to any expense described in section 274(e)(2), (3), (4), (7), (8), and (9). The proposed regulations, therefore, provide that the deduction limitations are not applicable to expenditures for business meals, travel meals, or other food or beverages that fall within one of these exceptions.
Pursuant to section 274(e)(2), the proposed regulations provide that the limitations in section 274(k)(1) and (n)(1) do not apply to expenditures for food or beverages of an employee of the taxpayer (including food or beverages of a spouse, dependent or other individual accompanying the employee on travel described in section 274(m)(3)), to the extent the taxpayer treats the expenses as compensation to the employee on the taxpayer's income tax return as originally filed, and as wages to the employee for purposes of withholding under chapter 24 of the Code relating to collection of income tax at source on wages.
Pursuant to section 274(e)(9), the proposed regulations provide that the limitations in section 274(k)(1) and (n)(1) do not apply to expenses for food or beverages of a person who is not an employee of the taxpayer to the extent the expenses are includible in the gross income of the recipient of the food or beverages as compensation for services rendered, or as a prize or award under section 74.
The Treasury Department and the IRS are aware that some taxpayers may attempt to claim a full deduction under section 274(e)(2) or (e)(9) by including a value that is less than the amount required to be included under § 1.61-21, which provides the rules for valuation of fringe benefits, or by purportedly including a value of zero, as compensation and as wages to the employee, or as includible in gross income by a person who is not an employee of the taxpayer. The proposed regulations therefore provide that expenses for food or beverages with a value that is less than the amount required to be included in gross income under § 1.61-21, or for which the amount required to be included in gross income is zero, will not be considered as having been treated as compensation and as wages to the employee, or as includible in gross income by a recipient of the food or beverages who is not an employee of the taxpayer for purposes of section 274(e)(2) and (e)(9).
Pursuant to section 274(e)(3), the proposed regulations provide that in the case of expenses for food or beverages paid or incurred by one person in connection with the performance of services for another person (whether or not the other person is an employer) under a reimbursement or other expense allowance arrangement, the limitations on deductions in section 274(k)(1) and (n)(1) apply either to the person who makes the expenditure or to the person who actually bears the expense, but not to both. Section 274(e)(3)(B) provides that if the services are performed for a person other than an employer, such as by an independent contractor, the exception in section 274(e)(3) applies only if the taxpayer, in this case, the independent contractor, accounts, to the extent provided by section 274(d), to such person. The proposed regulations therefore provide that the deduction limitations in section 274(k)(1) and (n)(1) apply to an independent contractor unless, under a reimbursement or other expense allowance arrangement, the contractor accounts to the client or customer with substantiation that satisfies the requirements of section 274(d).
Pursuant to section 274(e)(4), the proposed regulations provide that any food or beverage expense paid or incurred by a taxpayer for a recreational, social, or similar activity, primarily for the benefit of the taxpayer's employees, is not subject to the deduction limitations in section 274(k)(1) and (n)(1). However, activities that discriminate in favor of highly compensated employees, officers, shareholders or others who own a 10-percent or greater interest in the business are not considered paid or incurred primarily for the benefit of employees.
The Treasury Department and the IRS have received several questions and comments on the deductibility of food or beverage expenses for recreational, social and similar activities for employees. Many commenters requested confirmation that food or beverage expenses for company holiday parties and picnics that do not discriminate in favor of highly compensated employees are not subject to the deduction limitations in section 274(k)(1) and (n)(1) because the exception in section 274(e)(4) applies. Commenters also suggested that expenses for snacks and beverages available to all employees in a pantry, break room, or copy room are not subject to the deduction limitations in section 274(k)(1) and (n)(1) because the exception in section 274(e)(4) applies.
In response to the questions and comments received, the proposed regulations confirm the rules in the existing regulations that the exception in section 274(e)(4) applies to food or beverage expenses for company holiday parties, annual picnics, or summer outings that do not discriminate in favor of highly compensated employees. However, an example in the proposed regulations demonstrates the section 274(e)(4) exception does not apply to free food or beverages provided in a break room because the mere provision or availability of food or beverages is not a recreational, social, or similar activity, despite the fact that employees may incidentally socialize while they are in the break room.
In addition, the proposed regulations provide that the exception in section 274(e)(4) does not apply to food or beverage expenses that are excludable under section 119 as meals provided for the convenience of the employer. Because these food or beverages are, by definition, furnished for the employer's convenience, they cannot also be primarily for the benefit of the employees, even if some social activity occurs during the provision of food or beverages.
Pursuant to section 274(e)(7), the proposed regulations provide that any food or beverage expense of a taxpayer is not subject to the deduction limitations in section 274(k)(1) and (n)(1) to the extent the food or beverages are made available to the general public. In addition, the proposed regulations provide that this exception applies to the entire amount of the expense for food or beverages provided to employees if similar food or beverages are provided by the employer to, and are primarily consumed by, the general public. For this purpose, “primarily consumed” means greater than 50 percent of actual or reasonably estimated consumption, and “general public” includes, but is not limited to,
Commenters have requested guidance as to whether the exception in section 274(e)(7) for food or beverages made available by the taxpayer to the general public applies in various situations. The Treasury Department and the IRS considered these comments and included examples in the proposed regulations to illustrate that the exception in section 274(e)(7) generally applies to the entire food or beverage expense if the food or beverages are primarily consumed by the general public.
Pursuant to section 274(e)(8), the proposed regulations provide that any expense for food or beverages that are sold to customers in a bona fide transaction for an adequate and full consideration in money or money's worth is not subject to the deduction limitations in section 274(k)(1) and (n)(1). The proposed regulations clarify that money or money's worth does not include payment through services provided.
The Treasury Department and the IRS are aware of concerns raised by commenters that it is a common business practice for employers of restaurant and food service workers to provide food or beverages at no cost or at a discount to their employees. The Joint Committee on Taxation's Bluebook on the TCJA explains that amendments made by the TCJA to limit the deduction for expenses of the employer associated with providing food or beverages to employees through an employer-operated eating facility that meets the requirements of section 132(e)(2) do not affect other exceptions to the 50-percent limitation on deductions for food or beverage expenses. For example, a restaurant or catering business may continue to deduct 100 percent of its costs for food or beverage items, purchased in connection with preparing and providing meals to its paying customers, which are also consumed at the worksite by employees who work in the employer's restaurant or catering business. Joint Committee on Taxation,
Finally, the proposed regulations provide that for purposes of the section 274(e)(8) exception to the deduction limitations in section 274(k)(1) and (n)(1), the term “customer” includes anyone who is sold food or beverages in a bona fide transaction for an adequate and full consideration in money or money's worth. For example, employees of the taxpayer are customers when they purchase food or beverages from the taxpayer in a bona fide transaction for arm's length, fair market value prices.
The Treasury Department and the IRS request comments on all aspects of these proposed regulations. Regarding entertainment expenditures under proposed § 1.274-11, comments are specifically requested about the definition of entertainment, including how to distinguish entertainment from advertising and travel; the use of the objective test in defining entertainment activities; the application of the exceptions in section 274(e) to entertainment expenditures; and whether additional issues or examples should be addressed in the regulations. Regarding food or beverage expenses under proposed § 1.274-12, comments are specifically requested about the changes from Notice 2018-76 to the rules for business meals; the application of the exceptions in section 274(e) to food or beverage expenses; and whether additional issues or examples should be addressed in the regulations.
Section 7805(b)(1)(A) and (B) of the Code generally provide that no temporary, proposed, or final regulation relating to the internal revenue laws may apply to any taxable period ending before the earliest of (A) the date on which the regulation is filed with the
Consistent with authority provided by section 7805(b)(1)(A), these regulations are proposed to apply for taxable years that begin on or after the date of publication of a Treasury decision adopting these rules as final regulations in the
These proposed regulations are not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget regarding review of tax regulations.
In accordance with the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this proposed rule will not have a significant economic impact on a substantial number of small entities. Although the rule may affect a substantial number of small entities, the economic impact of the regulations is not likely to be significant. Data are not readily available about the number of taxpayers affected, but the number is likely to be substantial for both large and small entities because the rule may affect entities that incur meal and entertainment expenses. The economic impact of these regulations is not likely to be significant, however, because these proposed regulations substantially incorporate prior guidance and otherwise clarify the application of the TCJA changes to section 274 related to meals and entertainment. The proposed regulations will assist taxpayers in understanding the changes to section 274 and make it easier for taxpayers to comply with those changes. Notwithstanding this certification, the Treasury Department and the IRS welcome comments on the impact of these regulations on small entities.
Pursuant to section 7805(f), these proposed regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a state, local, or tribal government, in the aggregate, or by the private sector, of $100 million (updated annually for inflation). This rule does not include any Federal mandate that may result in expenditures by state, local, or tribal governments, or by the private sector in excess of that threshold.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from
Notices cited in this preamble are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
Before these proposed regulations are adopted as final regulations, consideration will be given to any electronic and written comments that are submitted timely to the IRS as prescribed in this preamble under the
The principal author of this proposed regulation is Patrick Clinton, Office of the Associate Chief Counsel (Income Tax & Accounting). Other personnel from the Treasury Department and the IRS participated in their development.
Income Taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.274-11 also issued under 26 U.S.C. 274.
Section 1.274-12 also issued under 26 U.S.C. 274.
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(i) The expense is not lavish or extravagant under the circumstances;
(ii) The taxpayer, or an employee of the taxpayer, is present at the furnishing of such food or beverages; and
(iii) The food or beverages are provided to a business associate.
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(3)
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(A) The spouse, dependent, or other individual is an employee of the taxpayer;
(B) The travel of the spouse, dependent, or other individual is for a bona fide business purpose of the taxpayer; and
(C) The expenses would otherwise be deductible by the spouse, dependent or other individual.
(D) The following example illustrates the application of paragraph (a)(4)(iii) of this section. Taxpayer E and Taxpayer E's spouse travel from New York to Boston to attend a series of business meetings. E's spouse is not an employee of E, does not travel to Boston for a bona fide business purpose of E, and the expenses would not otherwise be deductible. While in Boston, E and E's spouse go out to dinner. Under section 274(m)(3) and paragraph (a)(4)(iii) of this section, the expenses associated with the food and beverages consumed by E's spouse are not deductible. Therefore, the cost of E's spouse's dinner is not deductible. E may deduct 50 percent of the expense associated with the food and beverages E consumed while on business travel if E meets the requirements in sections 162 and 274, including section 274(k) and (d).
(b)
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(i) For purposes of paragraph (c)(2)(ii)(B) of this section, an arrangement under which an employee receives an advance, allowance, or reimbursement from a payor (the employer, its agent, or a third party) for expenses the employee pays or incurs; and
(ii) For purposes of paragraph (c)(2)(ii)(C) of this section, an arrangement under which an independent contractor receives an advance, allowance, or reimbursement from a client or customer for expenses the independent contractor pays or incurs if either—
(A) A written agreement between the parties expressly states that the client or customer will reimburse the independent contractor for expenses that are subject to the limitations on deductions in paragraph (a) of this section; or
(B) A written agreement between the parties expressly identifies the party subject to the limitations.
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Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to add, delete, and modify the special local regulations for annual recurring marine events and safety zones regulation for firework displays and swim events in Coast Guard Sector Northern New England Captain of the Port Zone. When enforced, these special local regulations and safety zones will restrict vessels from transiting regulated areas during certain annually recurring events. The proposed special local regulations and safety zones are intended to expedite public notification and ensure the protection of the maritime public and event participants from the hazards associated with certain marine events. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before March 27, 2020.
You may submit comments identified by docket number USCG-2019-0951 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Chief Marine Science Technician Thomas Watts, Sector Northern New England Waterways Management Division, U.S. Coast Guard; telephone 207-347-5003, email
Swim events, fireworks displays, and marine events are held on an annual recurring basis on the navigable waters within the Coast Guard Sector Northern New England Captain of the Port (COTP) Zone. The Coast Guard has established special local regulations and safety zones for some of these annual recurring events on a case by case basis to ensure the protection of the maritime public and event participants from potential hazards. In the past, the Coast Guard has not received public comments or concerns regarding the impact to waterway traffic from regulations associated with these annually recurring events. Events were either added or deleted to the table of annual events based on their likelihood to recur in subsequent years. In addition, minor changes to existing events, such as position, date, or title, were made to ensure the accuracy of event details.
The purpose of this rulemaking is to ensure accurate notification of relevant events and protect the maritime public during marine events in the Sector Northern New England COTP Zone. The Coast Guard proposes this rulemaking under its authority in 46 U.S.C. 70034 and 46 U.S.C. 70041.
The proposed rule would update the terminology and tables of annual recurring events in the existing regulations for the Coast Guard Sector Northern New England COTP Zone. The tables provide the event name, sponsor, and type, as well as approximate times, dates, and locations of the events.
The Coast Guard proposes to amend 33 CFR 100.120 “Special Local Regulations; Marine Events Held in the Coast Guard Sector Northern New England Captain of the Port Zone” by replacing language referencing “Patrol Commander” to “Designated Representative” and adding language clarifying only event sponsors, designated participants, and official
The Coast Guard proposes to amend 33 CFR 165.171 “Safety Zones for fireworks displays and swim events held in Coast Guard Sector Northern New England Captain of the Port Zone” by adding language clarifying only event sponsors, designated participants, and official patrol vessels will be allowed to enter regulated areas. Spectators and other vessels not registered as event participants may not enter the safety zones without the permission of the COTP or the Designated Representative. Additionally, the Coast Guard proposes to amend 33 CFR 165.171 “Safety Zones for fireworks displays and swim events held in Coast Guard Sector Northern New England Captain of the Port Zone” by updating the details of one event and deleting 20 events from the TABLE 1 to § 165.171. This rule proposes the following update to the TABLE 1 to § 165.171: Corrected location for 8.2 Islesboro Crossing Swim. Events proposed for removal are obsolete events which have not been held for the past three years or which the sponsor's indicate they have no intention to continue, and events that have been determined to “not present an extra or unusual hazard on the waterway.” The events deleted from the TABLE 1 to § 165.171 will be: (1) 6.1 Waterfront Days Fireworks; (2) 6.2 LaKermesse Fireworks; (3) 7.1 Vinalhaven 4th of July Fireworks; (4) 7.3 The Great Race; (5) 7.4 Bangor 4th of July Fireworks; (6) Eastport 4th of July Fireworks; (7) 7.8 Ellis Short Sand Park Trustee Fireworks; (8) 7.9 Hampton Beach 4th of July Fireworks; (9) 7.12 Main Street Heritage Days 4th of July Fireworks; (10) 7.14 St. Albans Day Fireworks; (11) 7.17 Shelburne Triathlons; (12) 7.18 St. George Days Fireworks; (13) 7.20 Richmond Days Fireworks; (14) 7.24 Bucksport Festival and Fireworks; (15) 7.26 Paul Coulombe Anniversary Fireworks; (16) 8.1 Westerlund's Landing Party Fireworks; (17) 8.2 York Beach Fire Department Fireworks; (18) 8.5 Paul Columbe Party Fireworks; (19) 9.2 Eastport Pirate Festival Fireworks; (20) 9.4 Eliot Festival Day Fireworks.
The regulatory text we are proposing appears at the end of this document. Advanced public notification of specific times, dates, regulated areas, and enforcement periods for each event will be provided through appropriate means, which may include, but are not limited to, the Local Notice to Mariners, Broadcast Notice to Mariners, or 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, duration, and time-of-day of each regulated area. We are adding two new special local regulation, updating existing regulations by removing obsolete events which have not been held for the past three years or which the sponsor's indicate they have no intention to continue, and removing events that have been determined to “not present an extra or unusual hazard on the waterway.” Dates and coordinates have been updated to more accurately reflect the event. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 for any Safety Zone or Special Local Regulation. Additionally, the rule would allow vessels to seek permission to enter the regulated areas.
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 the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this 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, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have 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 special local regulations for various one day marine events and safety zones for fireworks displays and one day swimming events. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
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 and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments 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
Marine safety, Navigation (water), Reporting and record-keeping requirements, Waterways.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 100 and 165 as follows:
46 U.S.C. 70041
The following regulations apply to the marine events listed in the TABLE 1 to § 100.120. These regulations will be enforced for the duration of each event, on or about the dates indicated. Actual notice of the exact dates and times of the effective period of the regulations with respect to each event, the geographical area, and details concerning the nature of the event and the number of participants and type(s) of vessels involved will be published in a Local Notices to Mariners and broadcast over VHF-FM radio. First Coast Guard District Local Notice to Mariners can be found at:
(a) The following definitions apply to this section:
(1)
(2)
(3)
(b) Vessels may not transit the regulated areas without the COTP or Designated Representative approval. Vessels permitted to transit must operate at a no wake speed, in a manner which will not endanger participants or other crafts in the event.
(c) Vessel operators desiring to enter or operate within the regulated areas shall contact the COTP or the Designated Representative via VHF channel 16 or (207) 741-5465 (Coast Guard Sector Northern New England Command Center) to obtain permission to do so.
(d) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, unless authorized by COTP or Designated Representative.
(e) The COTP or Designated Representative may control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(f) The COTP or Designated Representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property.
(g) For all power boat races listed, vessels not participating in this event, swimmers, and personal watercraft of any nature are prohibited from entering or moving within the regulated area unless authorized by the COTP or Designated Representative. Vessels within the regulated area must be at anchor within a designated spectator area or moored to a waterfront facility in a way that will not interfere with the progress of the event.
(h) For all regattas and boat parades listed, spectator vessels operating within the regulated area shall maintain a separation of at least 50 yards from the participants.
(i) For all rowing and paddling boat races listed, vessels not associated with the event shall maintain a separation of at least 50 yards from the participants.
(j) The specific calendar date upon which the listed event falls will be published through a Notice of Enforcement in the
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1)
(2)
(3)
(c) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP or Designated Representative.
(d) Vessel operators desiring to enter or operate within the regulated areas shall contact the COTP or the Designated Representative via VHF channel 16 or (207) 741-5465 (Coast Guard Sector Northern New England Command Center) to obtain permission to do so.
(e) Upon being hailed by a U.S. Coast Guard vessel or the Designated Representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(f) The COTP or Designated Representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property.
(g) The regulated area for all fireworks displays listed in the Table 1 to § 165.171 is that area of navigable waters within a 200 yard radius of the launch platform or launch site for each fireworks display, unless otherwise noted in the Table 1 to § 165.171 or modified in USCG First District Local Notice to Mariners at:
(h) For all swim events listed in the Table 1 to § 165.171, vessels not associated with the event shall maintain a separation of at least 200 feet from the participants.
(i) The specific calendar date upon which the listed event falls will be published Notice of Enforcement in the
Forest Service, USDA.
Proposed rule; request for comment.
The United States Department of Agriculture (USDA), Forest Service is revising regulations to implement certain changes to the Small Tracts Act, enacted in the Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill. These statutory changes create a new category of lands eligible for conveyance outside of the National Forest System under the Small Tracts Act for parcels of 40 acres or less that are physically isolated, inaccessible, or have lost National Forest System character. The statutory changes also create a new category of lands eligible for conveyance involving parcels of ten acres or less that are not eligible for conveyance under previous eligibility conditions and are encroached on by a permanent habitable improvement for which there is no evidence that the encroachment was intentional or negligent. These amendments to the Small Tracts Act are expected to provide the Forest Service with more flexibility for resolving property conflicts with private landowners, reduce the time and expense arising from a protracted boundary dispute, and alleviate management burden and expense to the Forest Service.
Comments must be received in writing by April 27, 2020.
Written comments concerning this notice should be addressed to Greg Smith, USDA, Forest Service, 201 14th Street SW, Washington, DC 20250. Comments also may be submitted by following the instructions at the Federal eRulemaking portal at
Brad Tait, by phone at 971-806-2199, or via email at
Public Law 97-465, commonly known as the Small Tracts Act (16 U.S.C. 521c-521i), was enacted in 1983 to help the Forest Service resolve land disputes and boundary mangement problems for parcels that generally were small in scale (less than ten acres) with land values that did not exceed $150,000. Eligible lands for sale, exchange, or interchange included National Forest System lands encumbered by an encroachment like a shed, house, or fence; roads or road rights-of-way in excess of Forest Service transportation needs; and “mineral survey fractions,” small parcels of National Forest System lands interspersed with or adjacent to lands transferred out of Federal ownership under the mining laws.
The Small Tracts Act was amended by Section 8621 of the Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill (Pub. L. 115-334). The Agriculture Improvement Act of 2018 changes to the Small Tracts Act are being implemented in two phases. The first phase, implementing statutory revisions that are self-executing, was accomplished by revisions to 36 CFR part 254 by final rule without notice and comment on February 13, 2020 (85 FR 8180). The second phase, implementing changes that may entail agency discretion, would be accomplished by this proposed rule, for which notice and comment are warranted.
The Agriculture Improvement Act of 2018 added two new paragraphs to the Small Tracts Act Section 3 (16 U.S.C. 521e) to resolve by conveyance certain encroachment, trespass, and boundary management problems: Paragraph (4) (16 U.S.C. 521e(4)), adding a limited conveyance authority for parcels of 40 acres or less that are determined by the Secretary to be physically isolated from other Federal lands, to be inaccessible, or to have lost National Forest character; and paragraph (5) (16 U.S.C. 521e(5)), addressing encroachments by permanent habitable improvements on parcels of 10 acres or less. This proposed rule would implement paragraph (4) by adding a new 36 CFR 254.37, and would implement paragraph (5) by adding a new paragraph (b) to 36 CFR 254.32.
Rulemaking is required for these specific amendments because Section 6 of the Small Tracts Act (codified at 16 U.S.C. 521(h)) provides that “[t]he Secretary shall issue regulations to carry out the provisions of this Act, including specification of . . . criteria which shall be used in making the determination as to what constitutes the public interest.” The public interest determination in § 254.36 will apply to the new paragraph 254.32(b) and new § 254.37 created by this proposed rule. Rulemaking, and particularly the solicitation of public comments, is further warranted because both amendments introduce new options to the Forest Service that rely on agency discretion for resolving eligible encroachments.
The final rule published on February 13, 2020 (85 FR 8180), added a new paragraph (c) to 36 CFR 254.32. As noted above, this proposed rule would revise 36 CFR 254.32 to add a new paragraph (b); it would accordingly redesignate existing paragraph (b) as paragraph (c), which would in turn redesignate paragraph (c) added by the final rule as paragraph (d). The final rule also added 36 CFR 254.38. This proposed rule would revise the citations to other rule provisions in 36 CFR 254.38(a) from 36 CFR 254.32(c) to 36 CFR 254.32(d), consistent with the revisions to § 254.32 that would be made by this proposed rule, and would revise 36 CFR 254.38(b) to add a subparagraph (3).
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.
The proposed rule has been reviewed in accordance with E.O. 13771 on reducing regulation and controlling regulatory costs, and is considered an E.O. “deregulatory” action.
Pursuant to the Congressional Review Act (5 U.S.C. 801
The Agency has considered the proposed rule under the requirements of the Regulatory Flexibility Act (5 U.S.C. 602
The Agency has considered this proposed rule under the requirements of E.O. 13132
Tribal consultation is not required for the revisions to the Small Tracts Act regulations to be effected in this proposed rule. Tribal consultation on individual proposed projects and local notification requirements to Tribes and other individuals for land adjustment activities will occur as required.
The Agency has analyzed this proposed rule in accordance with the principles and criteria found in E.O. 12630,
This proposed rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or are not already approved for use, and therefore imposes no additional paperwork burden on the public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), and its implementing regulations at 5 CFR part 1320, do not apply.
Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The Agency has concluded that these proposed rules fall within this category of actions and that no extraordinary circumstances exist which would require preparation of an environment assessment or environmental impact statement.
This proposed rule has been reviewed under E.O. 13211,
The Agency has analyzed this rule in accordance with the principles and criteria of E.O. 12988,
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the agency has assessed the effects of this proposed rule on State, local, and Tribal governments and the private sector. This proposed rule does not compel the expenditure of $100 million or more by any State, local, or Tribal governments or anyone in the private sector. Therefore, statements as described under section 202 and 205 of the Act are not required.
Community facilities, National forests.
Therefore, for the reasons set forth in the preamble, the Forest Service proposes to revise part 254 of title 36 of the Code of Federal Regulations as follows:
Pub. L. 97-465; 96 Stat. 2535.
(a) This subpart allows conveyance of parcels of 10 acres or less, which will resolve encroachments by persons on NFS lands:
(1) To whom no advance notice was given that the improvements encroached or would encroach, and
(2) Who in good faith relied on an erroneous survey, title search, or other land description which did not reveal such encroachment.
(b) This subpart also allows conveyance of parcels of 10 acres or less that are not eligible for conveyance under paragraph (a) of this section but are encroached on by a permanent habitable improvement for which there is no evidence that the encroachment was intentional or negligent.
(c) Forest Service officials shall consider the following factors when determining whether to convey lands upon which encroachments exist under paragraphs (a) and (b) of this section:
(1) The location of the property boundaries based on historical location and continued acceptance and maintenance,
(2) Factual evidence of claim of title or color of title,
(3) Notice given to persons encroaching on National Forest System lands,
(4) Degree of development in the encroached upon area, and
(5) Creation of an uneconomic remnant.
(d) This subpart also allows conveyance of parcels that are used as a cemetery (including a parcel of not more than one acre adjacent to the parcel used as a cemetery), a landfill, or a sewage treatment plant under a special use authorization issued or otherwise authorized by a Forest Service official.
This subpart allows conveyance of parcels of 40 acres or less that are determined by Forest Service officials to:
(a) Be physically isolated from other Federal land; or
(b) Be inaccessible; or
(c) Have lost National Forest character.
(a) The net proceeds derived from any sale or exchange of parcels in § 254.32(b) and (d) and § 254.37 shall be deposited in the fund commonly known as the “Sisk Act” account.
(b) * * *
(3) Reimbursement for costs incurred in preparing a sale conducted under § 254.37 if the sale is a competitive sale.
Environmental Protection Agency (EPA).
Proposed rule; reopen comment period.
On December 17, 2019, the Environmental Protection Agency (EPA) proposed a rule titled “National Emission Standards for Hazardous Air Pollutants: Miscellaneous Organic Chemical Manufacturing Residual Risk and Technology Review.” The EPA is reopening the comment period on the proposed rule that originally closed on February 18, 2020. The comment period will reopen until March 19, 2020, to allow additional time for stakeholders to review and comment on the proposal.
The public comment period for the proposed rule published in the
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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 Tegan Lavoie, Sector Policies and Programs Division (E143-01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5110; fax number: (919) 541-0516; and email address:
To allow for additional time for stakeholders to provide comments, the EPA has decided to reopen the public comment period until March 19, 2020.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by March 27, 2020 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725-17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Notice of availability.
We are advising the public that the Animal and Plant Health Inspection Service has prepared an environmental assessment concerning authorization to ship for the purpose of field testing, and then to field test, an unlicensed Bursal Disease-Marek's Disease Vaccine, Serotype 3, Live Marek's Disease Vector. Based on the environmental assessment, risk analysis, and other relevant data, we have reached a preliminary determination that field testing this veterinary vaccine will not have a significant impact on the quality of the human environment. We are making these documents available to the public for review and comment.
We will consider all comments that we receive on or before March 27, 2020.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive may be viewed at
For information regarding the environmental assessment or the risk analysis, or to request a copy of the environmental assessment or the risk analysis with confidential business information removed, contact Dr. Barbara J. Sheppard, Senior Staff Veterinary Medical Officer, Center for Veterinary Biologics, Policy, Evaluation, and Licensing, VS, APHIS, 1920 Dayton Avenue, Ames, IA; phone (515) 337-6100, fax (301) 337-6120.
The alternative contact is Dr. Mathew Erdman, Senior Staff Veterinary Medical Officer, Center for Veterinary Biologics, Policy, Evaluation, and Licensing VS, APHIS, 1920 Dayton Avenue, P.O. Box 844, Ames, IA 50010; phone (515) 337-6100, fax (515) 337-6120.
Under the Virus-Serum-Toxin Act (21 U.S.C. 151
APHIS issues licenses to qualified establishments that produce veterinary biological products and issues permits to importers of such products. APHIS also enforces requirements concerning production, packaging, labeling, and shipping of these products and sets standards for the testing of these products. Regulations concerning veterinary biological products are contained in 9 CFR parts 101 to 124.
A field test is generally necessary to satisfy prelicensing requirements for veterinary biological products. Prior to conducting a field test on an unlicensed product, an applicant must obtain approval from APHIS, as well as obtain APHIS' authorization to ship the product for field testing.
To determine whether to authorize shipment and grant approval for the field testing of an unlicensed veterinary biological product, APHIS considers the potential effects of this product on the safety of animals, public health, and the environment. Based upon a risk analysis and other relevant data, APHIS has prepared an environmental assessment (EA) concerning the field testing of the following unlicensed veterinary biological product:
The above-mentioned vaccine consists of a live Marek's disease, serotype 3, turkey herpesvirus vector containing a gene from an infectious bursal disease virus. The vaccine has been shown to be effective for the vaccination of 18- to 19-day-old embryonated chicken eggs or healthy 1-day-old chickens against infectious bursal disease and Marek's disease.
APHIS' review and analysis of the potential environmental impacts associated with the proposed field tests are documented in detail in an EA entitled “Environmental Assessment For Field Testing of a Bursal Disease—Marek's Disease Vaccine, Serotype 3, Live Marek's Disease Vector” (December 2019). We are making this EA available to the public for review and comment. We will consider all comments that we receive on or before the date listed under the
The EA may be viewed on the
The EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Unless substantial issues with adverse environmental impacts are raised in response to this notice, APHIS intends to issue a finding of no significant impact (FONSI) based on the EA and authorize shipment of the above product for the initiation of field tests following the close of the comment period for this notice.
Because the issues raised by field testing and by issuance of a license are identical, APHIS has concluded that the EA that is generated for field testing would also be applicable to the proposed licensing action. Provided that the field test data support the conclusions of the original EA and the issuance of a FONSI, APHIS does not intend to issue a separate EA and FONSI to support the issuance of the associated product license, and would determine that an environmental impact statement need not be prepared. APHIS intends to issue a veterinary biological product license for this vaccine following completion of the field test provided no adverse impacts on the human environment are identified and provided the product meets all other requirements for licensing.
21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
U.S. Codex Office, USDA.
Notice of public meeting cancellation.
On February 3, 2020, the U.S Codex Office, USDA published a notice that announced a public meeting on February 27, 2020 from 1:00-3:00 p.m. EST at the United States Environmental Protection Agency. The objective of the public meeting was to provide information and receive public comments on agenda items and draft United States (U.S.) positions to be discussed at the 52nd Session of the Codex Committee on Pesticide Residues (CCPR) of the Codex Alimentarius Commission, in Guangzhou, People's Republic of China, originally planned for March 30-April 4, 2020. The U.S. Codex Office is publishing this notice to announce that the 52nd Session of the CCPR has been postponed due to the outbreak of the Coronavirus (COVID-19) and that the public meeting to provide information and receive public
Marie Maratos, U.S. Codex Office, 1400 Independence Avenue SW, Room 4861, South Agriculture Building, Washington, DC 20250. Phone: (202) 690-4795, Fax: (202) 720-3157, Email:
Due to circumstances beyond the control of the USDA, the 52nd Session of the CCPR, which is hosted by the People's Republic of China, has been postponed due to the Coronavirus (COVID-19). The USDA is publishing this notice to announce that the public meeting in advance of the 52nd Session of CCPR has been cancelled and will be rescheduled at a later date. The rescheduled public meeting will be announced in the
U.S. Codex Office, Department of Agriculture.
Notice of public meeting and request for comments.
The U.S Codex Office is sponsoring a public meeting on March 23, 2020. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States (U.S.) positions to be discussed at the 14th Session of the Codex Committee on Contaminants in Foods (CCCF) of the Codex Alimentarius Commission, in Utrecht, the Netherlands, April 20-24, 2020. The U.S. Manager for Codex Alimentarius and the Under Secretary, Office of Trade and Foreign Agricultural Affairs, recognize the importance of providing interested parties the opportunity to obtain background information on the 14th Session of the CCCF and to address items on the agenda.
The public meeting is scheduled for March 23, 2020, from 1:00 p.m. to 4:00 p.m. EST.
The public meeting will take place in Meeting Room 1A-001 at the Center for Food Safety and Applied Nutrition, U.S. Food and Drug Administration, 5001 Campus Drive, HFS-009, College Park, MD 20740-3835. Documents related to the 14th Session of the CCCF will be accessible via the internet at the following address:
Henry Kim, Ph.D., FDA, at
Codex was established in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure fair practices in the food trade.
The CCCF is responsible for
(a) Establishing or endorsing permitted maximum levels and where necessary, revising existing guideline levels, for contaminants and naturally occurring toxicants in food and feed;
(b) Preparing priority lists of contaminants and naturally occurring toxicants for risk assessment by the joint FAO/WHO Expert Committee on Food Additives (JEFCA).
(c) Considering and elaborating methods of analysis and sampling for the determination of contaminants and naturally occurring toxicants in food and feed;
(d) Considering and elaborating standards or codes of practice for related subjects; and
(e) Considering other matters assigned to it by the Commission in relation to contaminants and naturally occurring toxicants in food and feed.
The Committee is chaired by the Netherlands.
The following items on the Agenda for the 14th Session of the CCCF will be discussed during the public meeting:
At the public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to Henry Kim at
Public awareness of all segments of rulemaking and policy development is important. Consequently, the U.S. Codex Office will announce this
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
Commission on Civil Rights.
Announcement of planning meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a meeting of the Colorado Advisory Committee to the Commission will convene by conference call at 12:00 p.m. (MST) on Friday, March 6, 2020. The purpose of the meeting is to discuss next steps for its next civil rights project.
Friday, March 6, 2020, at 12:00 p.m. (MST).
Evelyn Bohor,
Interested members of the public may listen to the discussion by calling the following toll-free conference call number: 1-800-367-2403 and conference call ID: 4470089.
Please be advised that, before being placed into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number provided.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call number: 1-800-367-2403 and conference call 4470089.
Members of the public are invited to make statements during the open comment period of the meeting or email written comments. Written comments may be emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Massachusetts Port Authority, grantee of FTZ 27, requesting subzone status for the facility of Waters Technologies Corporation, located in Milford, Massachusetts. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on February 18, 2020.
The proposed subzone (44.66 acres) is located at 34 Maple Street and 5 Technology Drive, Milford. A notification of proposed production activity has been submitted and is being processed under 15 CFR 400.37 (Doc. B-76-2019). The proposed subzone would be subject to the existing 129-acre activation limit of FTZ 27.
In accordance with the Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Elizabeth Whiteman at
On October 18, 2019, Kubota North America Corporation submitted a notification of proposed production activity to the FTZ Board for its facilities within FTZ 26, in Jefferson and Gainesville, Georgia.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
This is a decision pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5:00 p.m. in Room 3720, U.S. Department of Commerce, 14th and Constitution Ave. NW, Washington, DC.
Docket Number: 19-012. Applicant: University of Minnesota, 116 Union Street SE, Minneapolis, MN 55455. Instrument: Photomultiplier tube. Manufacturer: Hainan Zhanchuange Photonics Technology, China. Intended Use: See notice at 85 FR 3892, January 23, 2020. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as this is intended to be used, that was being manufactured in the United States at the time of order. Reasons: The instrument will be used to study the properties of neutrino oscillation. Neutrinos are very hard to detect and require several thousand tonnes of target material to have any chance of seeing the neutrino interactions. The CHIPS detector is a pilot project which aims to reduce the cost of neutrino experimentation by around a factor of fifty. This is done by reducing the structural engineering and installing the detector in a lake, where students can exploit the buoyancy of the used materials. Photomultipliers are highly sensitive light detectors able to detect light at the single photon level; these will be installed in a large 25 meter diameter cylindrical detector filled with water. This experiment is built employing several physics graduate students and provides work experience for many physics and engineering undergraduates.
Docket Number: 19-013. Applicant: University of Minnesota, 116 Union Street SE, Minneapolis, MN 55455. Instrument: Photomultiplier tube. Manufacturer: Hainan Zhanchuange Photonics Technology, China. Intended Use: See notice at 85 FR 3892, January 23, 2020. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as this is intended to be used, that was being manufactured in the United States at the time of order. Reasons: The instrument will be used to study the properties of neutrino oscillation. Neutrinos are very hard to detect and require several thousand tonnes of target material to have any chance of seeing the neutrino interactions. The CHIPS detector is a pilot project for which aims to reduce the cost of neutrino experimentation by around a factor of fifty. This is done by reducing the structural engineering and installing the detector in a lake, where students can exploit the buoyancy of the used materials. Photomultipliers are highly sensitive light detectors able to detect light at the single photon level; these will be installed in a large 25 meter diameter cylindrical detector filled with water. This experiment is built employing several physics graduate students and provides work experience for many physics and engineering undergraduates.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on certain hot-rolled steel flat products from Brazil for the period of review (POR) October 1, 2018 through September 30, 2019,
Applicable February 26, 2020.
William Langley, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3861.
On October 1, 2019, Commerce published a notice of opportunity to request an administrative review of the antidumping duty order on certain hot-rolled steel flat products (hot-rolled steel) from Brazil for the POR of October 1, 2018 through September 30, 2019.
On December 11, 2019, pursuant to these requests and in accordance with 19 CFR 351.221(c)(1)(i), Commerce published a notice initiating an administrative review of the antidumping order on hot-rolled steel from Brazil with respect to all 18 companies for which a review was requested.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party or parties that requested a review withdraws the request within 90 days of the publication date of the notice of initiation of the requested review. The domestic interested parties withdrew their request for review of all of the Brazilian producers/exporters of hot-rolled steel for which they had requested an administrative review, within 90 days of the publication date of the notice of initiation. No other parties requested an administrative review of the order. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding this review in its entirety.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of hot-rolled steel from Brazil. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after the date of publication of this notice in the
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.42(f)(2) to file a certificate regarding the reimbursement of AD 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 AD duties occurred and the subsequent assessment of doubled AD duties.
This notice also serves as a reminder to all 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. 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 violation which is subject to sanction.
This notice is issues and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and/or exporters of certain hardwood plywood products (hardwood plywood) from the People's Republic of China (China) during the period of review (POR) April 25, 2017 through December 31, 2018.
Applicable February 26, 2020.
Annathea Cook, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0250.
On October 11, 2019, Commerce published the
The merchandise subject to this order is hardwood and decorative plywood, and certain veneered panels.
For each of the subsidy programs we found to be countervailable, we determined that there is a subsidy,
In making these findings, Commerce relied on facts available and, because we found that two companies selected as mandatory respondents for individual examination (Jiangsu High Hope Arser Co., Ltd. (High Hope) and Zhejiang Dehua TB Import & Export Co., Ltd (Zhejiang Dehua)), as well as the Government of China, did not act to the best of their abilities to respond to Commerce's requests for information, we drew an adverse inference, where appropriate, in selecting from among the facts otherwise available.
As no party submitted comments on the methodology used in calculating the adverse facts available subsidy rates assigned in the
Additionally, due to the absence of reviewable entries, in our
The final net countervailable subsidy rates are as follows:
We described the subsidy rate calculations, which were based on adverse facts available, in the Preliminary Decision Memorandum.
Consistent with section 751(a)(1) of the Act, and 19 CFR 351.212(b)(2), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries. Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of the final results of this review.
Pursuant to section 751(a)(2)(C) of the Act, Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount indicated above on shipments of subject merchandise from the above-named companies entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review. For all non-reviewed firms, we will instruct CBP to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.
These final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Michelle Shero, Ph.D., Woods Hole Oceanographic Institution, 266 Woods
Written, telefaxed, or email comments must be received on or before March 27, 2020.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Sara Young or Carrie Hubard, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant requests a permit to take Weddell seals to assess the nature and underlying mechanisms that contribute to the significant heterogeneity observed in reproductive rates and animal fitness that exist within wild animal populations. This project will take a two-stage approach to understanding the causes of observed differences in reproductive output by comparing high- and low-quality females' energy dynamics, aerobic capacity and dive behavior, and fertility (genetics). To achieve project goals, a cohort of 26 female-pup pairs (13 high-quality, 13 low-quality) in Erebus Bay, Antarctica will undergo health assessments across the austral summer. Dive recorders will also be deployed during this time, and instruments will be recovered after the winter (gestational) foraging period. An estimated 52 animals may be taken (although additional animals may sampled if animals do not return to the expected location for recapture) by capture and restraint for drug administration, biological sampling, blood sampling, instrumentation, marking, measuring, ultrasound, and weighing. Up to 36,100 Weddell seals may also be taken by harassment through counting surveys, collection of molt, scat, spew, urine, and unmanned aircraft systems for photogrammetry. Samples collected during research and salvaged from carcasses may be imported or exported. Up to five mortalities of Weddell seal females and five Weddell seal pups are requested annually, not to exceed 15 mortalities across the duration of the permit. Up to 20 crabeater seals (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Tilefish Monitoring Committee will hold a meeting.
The meeting will be held on Tuesday, March 24, 2020, beginning at 9 a.m. and conclude by 1 p.m. For agenda details, see
The meeting will be held via webinar with a telephone-only connection option.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is for the Tilefish Monitoring Committee to recommended annual catch limits, trip limits, discards and other management measures for the blueline and golden tilefish fisheries to the Scientific and Statistical Committee.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
16 U.S.C.1801
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for comments regarding a proposed revision of an approved information collection requirement.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, DoD announces the proposed revision and extension of
DoD will consider all comments received by April 27, 2020.
You may submit comments, identified by OMB Control Number 0704-0477, using any of the following methods:
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Comments received generally will be posted without change to
Ms. Kimberley Bass, at 571-372-6174.
This information collection includes requirements relating to DFARS subpart 209.5, Organizational and Consultant Conflicts of Interest, and the related provision at DFARS 252.209-7008, Notice of Prohibition Relegating to Organizational Conflict of Interest—Major Defense Acquisition Program. DFARS subpart 209.5 implements section 207 of the Weapons system Acquisition Reform Act of 2009 (Pub. L. 111-23). The provision at DFARS 252.209-7008, paragraph (d), requires an offeror to submit a mitigation plan if requesting an exemption from the statutory limitation on future contracting.
Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Uniform Formulary Beneficiary Advisory Panel (UFBAP) will take place.
Open to the public Wednesday, April 1, 2020, from 9:00 a.m. to 12:00 p.m.
The address of the open meeting is the Naval Heritage Center Theater, 701 Pennsylvania Avenue NW, Washington, DC 20004.
Colonel Paul J. Hoerner, U.S. Air Force, 703-681-2890 (Voice), None (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
The UFBAP will review and comment on recommendations made to the Director of the Defense Health Agency, by the Pharmacy and Therapeutics Committee, regarding the Uniform Formulary.
Office of the Under Secretary of Defense for Personnel & Readiness, DoD.
30-day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by March 27, 2020.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Angela James, 571-372-7574, or
Affected Public: Individuals and Houses.
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Requests for copies of the information collection proposal should be sent to Ms. James at
Under Secretary of Defense for Policy, Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Policy Board (DPB) will take place.
Closed to the public Tuesday, March 3, 2020 from 8:00 a.m. to 5:00 p.m. and Wednesday, March 4, 2020 from 8:00 a.m. to 12:15 p.m.
The closed meeting will be held at The Pentagon, 2000 Defense Pentagon, Washington, DC 20301-2000.
Ms. Monica Bacheler, (703) 571-9234 (Voice), 703-697-8606 (Facsimile),
Due to circumstances beyond the control of the Department of Defense (DoD) and the Designated Federal Officer, the Defense Policy Board was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the meeting on March 3 through 4, 2020 of the Defense Policy Board. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C., App.), the Government in the Sunshine Act (“the Sunshine Act”) (5 U.S.C. 552b), and 41 CFR 102-3.140 and 102-3.150.
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by March 27, 2020.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
Office of the General Counsel, Department of Education.
Notice.
Through this notice, the Department announces the existence and location of its guidance portal. This guidance portal is meant to make it easy for the public and our stakeholders to locate the Department's guidance documents through the links within the guidance portal.
Levon Schlichter, U.S. Department of Education, Office of the General Counsel, 400 Maryland Ave. SW, room 6E235, Washington, DC 20202. Telephone: (202) 453-6387. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
Pursuant to Executive Order 13891 and the Office of Management and Budget's implementing guidance at
You may also access documents of the Department published in the
Office of the Secretary (OS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before March 27, 2020.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Alfreida Pettiford, 202-245-6110.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before March 27, 2020.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Institute of Education Sciences (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before April 27, 2020.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Thomas Wei, 646-428-3892.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before April 27, 2020.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela, 202-245-6347 or email
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of the General Counsel, Department of Education.
Notice.
The Department publishes letters, dated February 11, 2020, notifying Yale University and Harvard University of investigations related to the universities' reports of defined gifts and contracts, including restricted and conditional gifts or contracts, from or with a statutorily defined foreign source.
Patrick Shaheen, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW, room 6E300, Washington, DC 20202. Telephone: (202) 453-6339. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
The Department publishes these letters, dated February 11, 2020, notifying Yale University and Harvard University of investigations related to the universities' reports of defined gifts and contracts, including restricted and conditional gifts or contracts, from or with a statutorily defined foreign source. The letter to Yale University is in Appendix A of this notice. The letter to Harvard University is in Appendix B of this notice.
You may also access documents of the Department published in the
Section 117 of the Higher Education Act of 1965, 20 U.S.C. 1011f, requires Yale University to report statutorily defined gifts, contracts, and/or restricted and conditional gifts or contracts from or with a statutorily defined foreign source, to the U.S. Department of Education. These reports are posted at
It appears Yale University failed to report a single foreign source gift or contract in 2014, 2015, 2016, and 2017. However, Yale University says it “has a considerable presence abroad, represented by sites in dozens of cities and countries . . . [some] operated by Yale or a closely affiliated entity”, claims “considerable success” in setting up “jointly run laboratories with Chinese universities . . . funded by Chinese granting agencies . . .”, and has solicited and received directed foreign contributions advancing specific religious and ideological priorities.
Section 117(f), 20 U.S.C. 1011f(f), provides that whenever it appears an institution has failed to comply with the law, the Secretary of Education may request the Attorney General commence an enforcement action to compel compliance and to recover the full costs to the United States of obtaining compliance, including all associated costs of investigation and enforcement. The Department is now concerned Yale University's reporting may not fully capture all gifts, contracts, and/or restricted and conditional gifts or contracts from or with all foreign sources. To meet our statutory duty to verify compliance prior to any potential referral for enforcement action, the Department has opened an administrative investigation of Yale University and requests that you produce the following within sixty days:
As used in this Notice of Investigation and Information Request:
Your record and data preservation obligations are more particularly described at Exhibit A. If you claim attorney-client or attorney-work product privilege for a given record, then you must prepare and submit a privilege log expressly identifying each such record and describing it so the Department may assess your claim's validity. Please note no other privileges apply here. Finally, this investigation will be directed by the Department's Office of the General Counsel with support from Federal Student Aid. To arrange transmission of the requested information, or should you have any other questions, please contact:
Section 117 of the Higher Education Act of 1965, 20 U.S.C. 1011f, requires institutions including Harvard University to report all gifts, contracts and/or restricted and conditional gifts or contracts from or with a foreign source to the U.S. Department of Education, and to make those reports available to the public. These reports are posted at
Section 117(f), 20 U.S.C. 1011f(f), provides that whenever it appears an institution has failed to comply with the law, the Secretary of Education may request the Attorney General commence an enforcement action to compel compliance and to recover the full costs to the United States of obtaining compliance, including all associated costs of investigation and enforcement. The Department is aware of information suggesting Harvard University lacks appropriate institutional controls and, as a result, its statutory Section 117 reporting may not include and/or fully capture all reportable gifts, contracts, and/or restricted and conditional gifts or contracts from or with foreign sources.
As used in this Notice of Investigation and Information Request:
Your record and data preservation obligations are more particularly described at Exhibit A. If you claim attorney-client or attorney-work product privilege for a given record, then you must prepare and submit a privilege log expressly identifying each such record and describing it so the Department may assess your claim's validity. Please note no other privileges apply here. Finally, this
Office of English Language Acquisition (OELA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before March 27, 2020.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Francisco Javier Lopez, 202-401-1433.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, March 18, 2020; 1:00 p.m.-5:15 p.m.
The Lodge at Santa Fe, 720 North St. Francis Drive, Santa Fe, New Mexico 87501.
Menice Santistevan, Northern New Mexico Citizens' Advisory Board (NNMCAB), 94 Cities of Gold Road, Santa Fe, NM 87506. Phone (505) 995-0393; Fax (505) 989-1752 or Email:
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), Nevada. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, March 18, 2020; 4:00 p.m.
Frank H. Rogers Science and Technology Building, 755 East Flamingo, Las Vegas, Nevada 89119.
Barbara Ulmer, Board Administrator, 100 North City Parkway, Suite 1750, Las Vegas, Nevada 89106. Phone: (702) 523-0894; Fax (702) 724-0981 or Email:
1. Briefing and Recommendation Development for Fiscal Year 2022 Baseline Prioritization—Work Plan Item #2
2. Follow-up to Waste Verification Strategy—Work Plan Item #1
3. Overview of DOE Office of Legacy Management
The staff of the Federal Energy Regulatory Commission (FERC or Commission), with the participation of the cooperating agencies listed below, has prepared a final environmental impact statement (EIS) for the Southgate Project (Project) proposed by Mountain Valley Pipeline, LLC. (Mountain Valley) in the above-referenced docket. Mountain Valley requests authorization to construct and operate about 75.1 miles of natural gas transmission pipeline, one new compressor station, and accompanying facilities that would provide about 375 million cubic feet per day of available capacity for transport from the City of Chatham, in Pittsylvania County, Virginia to a delivery point with Dominion Energy North Carolina (DENC), formerly PSNC,
The final EIS assesses the potential environmental effects of the construction and operation of the Southgate Project in accordance with the requirements of the National Environmental Policy Act (NEPA). As described in the final EIS, the FERC staff concludes that approval of the Project would result in some adverse environmental impacts; however, these impacts would be reduced to less-than-significant levels because of the impact avoidance, minimization, and mitigation measures proposed by Mountain Valley and those recommended by staff in the EIS.
The United States Army Corps of Engineers (COE) and the U.S. Department of the Interior Fish and Wildlife Service (FWS) participated as cooperating agencies in preparation of this EIS. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis. The cooperating agencies provided input into the analyses, conclusions, and recommendations presented in the EIS. Following issuance of the final EIS, the cooperating agencies will issue subsequent decisions, determinations, permits, or authorizations for the Project in accordance with each individual agency's regulatory requirements.
The COE would use this EIS in their regulatory process, and to satisfy compliance with NEPA and other related federal environmental laws (
The EIS addresses the potential environmental effects of the construction and operation of the following project facilities:
• About 75.1 miles of new 24-inch and 16-inch diameter natural gas pipeline located in Pittsylvania County, Virginia, and Rockingham and Alamance Counties, North Carolina;
• one new 28,915 horsepower compressor station (Lambert Compressor Station) in Pittsylvania County, Virginia;
• four interconnects or tie-ins with facilities operated by Mountain Valley, East Tennessee Gas, and DENC; and
• ancillary facilities including pig launchers and receivers, mainline block valves (MLV), and cathodic protection beds.
The Commission mailed a copy of the
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Take notice that on February 13, 2020, pursuant to section 292.205(c) of the Federal Energy Regulatory Commission's (Commission) regulations, implementing the Public Utility Regulatory Policies Act of 1978, as amended 18 CFR 292.205(c) (2019), LSP-Whitewater Limited Partnership submitted a request for limited waiver of the operating standard set forth in section 292.205(a)(1) of the Commission's regulations for its topping-cycle cogeneration facility located in Whitewater, Wisconsin, as more fully explained in its request.
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, 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. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
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
This is a supplemental notice in the above-referenced Energia Sierra Juarez U.S. Transmission, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is March 5, 2020.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
On December 16, 2019, North Baja Pipeline, LLC (North Baja) filed an application in Docket No. CP20-27-000 requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the Natural Gas Act to construct and operate certain natural gas pipeline facilities. The proposed project is known as the North Baja Xpress Project (Project), and includes North Baja's installation of additional compression facilities and other modifications on its system to create 495 million cubic feet per day of incremental firm delivery to the U.S./Mexico border.
On December 31, 2019, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
North Baja would construct one new 31,900 ISO horsepower compressor unit and restage two existing 7,700 horsepower compressor units at its existing Ehrenberg Compressor Station in La Paz County, Arizona, as well as install additional flow measurement facilities and piping modifications at its existing El Paso and Ogilby Meter Stations in La Paz County, Arizona and Imperial County, California, respectively.
On January 31, 2020, the Commission issued a
In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system 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:
On January 22, 2020, the Federal Energy Regulatory Commission (Commission) issued a notice that Commission staff will hold a technical workshop on the relational database
Commission staff is hereby supplementing the January 22, 2020 notice with the agenda for discussion. During the meeting Commission staff will provide an overview of the MBR Database, discuss how the MBR Database will fit into the market-based rate program; and answer questions presented live or via email to
Please note that matters pending before the Commission and subject to ex parte limitations cannot be discussed at this meeting. An agenda of the meeting is attached.
Due to the nature of the discussion, those interested in participating are encouraged to attend in person. All interested persons (whether attending in person or via webcast) are asked to register at
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about the technical workshop, please contact Ryan Stertz at 202-502-6473, or send an email to
Take notice that Commission staff will convene a technical conference on June 23, 24, and 25, 2020 to discuss opportunities for increasing real-time and day-ahead market efficiency and enhancing the resilience of the bulk power system through improved software. A detailed agenda with the list of and times for the selected speakers will be published on the Commission's website
Staff has held similar conferences in this proceeding in the past years, focused on enhancing market and planning efficiency and the resilience of the bulk power system. As in past conferences, this conference will bring together experts from diverse backgrounds and experiences, including electric system operators, software developers, and those from government, research centers and academia for the purposes of stimulating discussion, sharing information, and identifying fruitful avenues for research concerning the technical aspects of improved software for increasing efficiency and resilience of the bulk power system.
This conference is intended to build on those previous discussions. Staff will be facilitating discussions to explore research and operational advances with respect to market modeling that appear to have significant promise for potential efficiency or resilience improvements. Broadly, such topics fall into the following categories:
(1) Improvements to the representation of physical constraints that are either not currently modeled or currently modeled using mathematical approximations (
(2) Consideration of uncertainty to better maximize economic efficiency (expected market surplus) and better understand events that could impact resilience of the bulk power system,
(3) Software related to grid-enhancing technologies, such as those described in the notices for Docket No. AD19-19, Grid-enhancing Technologies, and Docket No. AD19-15, Managing Transmission Line Ratings, including optimal transmission switching, dynamic line ratings, distributed energy resources, and software for forecasting and enhancing visibility into changing system conditions.
(4) Improvements to the ability to identify and use flexibility in the existing systems in ways that improve bulk power system resilience and economic efficiency,
(5) Improvements to the duality interpretations of the economic dispatch model, with the goal of enabling the calculation of prices which represent better equilibrium and incentives for efficient entry and exit;
(6) Limitations of current electricity market software due to its interaction with hardware, for example, parallel computing and better cache management;
(7) Other improvements in algorithms, model formulations, or hardware that may allow for increases in market efficiency and enhanced bulk power system resilience.
Within these or related topics, we encourage presentations that discuss best modeling practices, existing modeling practices that need improvement, any advances made, or related perspectives on increasing
The technical conference will be held at the Federal Energy Regulatory Commission headquarters, 888 First Street NE, Washington, DC 20426. All interested participants are invited to attend, and participants with ideas for relevant presentations are invited to nominate themselves to speak at the conference.
Speaker nominations must be submitted on or before April 17, 2020 through the Commission's website
Although registration is not required for general attendance by United States citizens, we encourage those planning to attend the conference to register through the Commission's website.
We strongly encourage attendees who are not citizens of the United States to register for the conference by April 24, 2020, in order to avoid any delay associated with being processed by FERC security.
The Commission will accept comments following the conference, with a deadline of July 31, 2020.
There is an “eSubscription” link on the Commission's website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
WebEx streaming of this conference will be available. Off-site participants interested in listening via teleconference or listening and viewing the presentations through WebEx must register at by 5:00 p.m. EST on June 12, 2020. WebEx and teleconferencing may not be available to those who do not register.
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
For further information about these conferences, please contact:
Environmental Protection Agency (EPA).
Notice.
As required by the Frank R. Lautenberg Chemical Safety for the 21st Century Act amendments to the Toxic Substances Control Act (TSCA) and implementing regulations, EPA is designating 20 chemical substances as Low-Priority Substances for which risk evaluation is not warranted at this time. This document provides the final designation for each of the chemical substances and instructions on how to access the chemical-specific information, analysis and basis used by EPA to make the final designation for each chemical substance.
Additional instructions on visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general and may be of interest to entities that currently or may manufacture (including import) a chemical substance regulated under TSCA (
EPA is designating 20 chemical substances as Low-Priority Substances pursuant to section 6(b) of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2605(b). This document includes the final designation for each of the chemical substances and instructions on how to access the chemical-specific information, analysis and basis used by EPA to make the final designation for each chemical substance.
As required by TSCA section 6(b)(2)(B), EPA is designating 20 chemical substances as Low-Priority Substances. EPA initiated the prioritization process required by TSCA section 6(b) on March 21, 2019 (Ref. 1) and published screening reviews supporting their proposed designation as Low-Priority Substances on August 15, 2019 (Ref. 2).
This document is issued pursuant to TSCA section 6(b).
This document identifies 20 chemical substances as Low-Priority Substances. This document does not establish any requirements on persons or entities outside of the Agency. No incremental impacts are therefore anticipated, and
TSCA section 6(b), as amended in 2016 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. 114-182), requires EPA to prioritize chemical substances for designation as a High-Priority Substance or a Low-Priority Substance. In accordance with TSCA section 6(b) and 40 CFR 702.7, on March 21, 2019 (Ref. 1), EPA initiated the prioritization process for 20 chemical substances identified as candidates for Low-Priority Substance designation and sought public comment on the identified candidates. On August 15, 2019 (Ref. 2), EPA proposed 20 chemical substances as Low-Priority Substances and sought additional public comment on these proposals.
Under TSCA section 6(b)(1)(B) and implementing regulations (40 CFR 702.3), a Low-Priority Substance is defined as a chemical substance that the Administrator concludes, based on information sufficient to establish, without consideration of costs or other non-risk factors, does not meet the standard for a High-Priority Substance. A High-Priority Substance is defined as a chemical substance that the Administrator concludes, without consideration of costs or other non-risk factors, may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator. Designation of a chemical substance as a Low-Priority Substance indicates a risk evaluation is not warranted at that time (TSCA Section 6(b)(1)(A) and 40 CFR 702.15).
This document is intended to fulfill the requirement in TSCA section 6(b)(2)(B) that the Administrator finalize the designation of 20 chemical substances as Low-Priority Substances. The prioritization rule states at 40 CFR 702.11 that EPA will publish such designations in the
As described in the proposal notice (Ref. 2), EPA used reasonably available information to screen each candidate chemical substance against the following criteria and considerations (40 CFR 702.9(a)) and thereby inform the proposed designation:
• The chemical substance's hazard and exposure potential;
• The chemical substance's persistence and bioaccumulation;
• Potentially exposed or susceptible subpopulations;
• Storage of the chemical substance near significant sources of drinking water;
• The chemical substance's conditions of use or significant changes in conditions of use;
• The chemical substance's production volume or significant changes in production volume; and
• Other risk-based criteria that EPA determines to be relevant to the designation of the chemical substance's priority for risk evaluation.
For the final priority designation, EPA considered comments and information submitted by the public during two public comment periods (after initiation and after proposed designation) and incorporated them as appropriate in finalizing the 20 chemical substances designated as Low-Priority Substances, as outlined in the statute (TSCA section 6(b)(1)(A)) and implementing regulations (40 CFR 702.11(a)) and consistent with the scientific standards of TSCA section 26(h) and (i). In addition, as required by TSCA section 6(b)(1)(B)(ii) and 40 CFR 702.11(b), EPA did not consider cost or other non-risk factors in making a priority designation.
The initiation of the prioritization process (Ref. 1) included a 90-day comment period during which interested persons were able to submit relevant information on those chemical substances identified as candidates for Low-Priority Substance designation.
During the 90-day comment period, commenters submitted information on four chemical substances identified as candidates for Low-Priority designation:
EPA incorporated the chemical-specific information submitted during the initiation public comment period in the screening reviews published at proposal.
EPA also received general prioritization comments during the initiation public comment period, as summarized below. A high-level synopsis of comments received during the initiation stage, and Agency responses to those comments, follows. Additional information is included in the Agency's full response to general comments document (Ref. 7) and in its full response to chemical-specific comments document (Ref. 8).
The following provides an overview of public comments received during initiation and EPA's responses.
For prioritization, EPA considered sources of information consistent with the scientific standards in TSCA section 26(h), including the sources listed in EPA's “Approach Document for Screening Hazard Information for Low-Priority Substances under TSCA” (Ref. 10) (also referred to as “Approach Document”).
In response to commenter's specific concerns regarding implementation of the statutory considerations and criteria of TSCA section 6(b)(1)(A), EPA notes that the Agency developed a screening review document for each candidate chemical substance at proposal to identify the information, analysis and basis used to support the proposed designation as a low-priority substance. These documents are available in the respective dockets of each chemical substance with a proposed designation as a Low-Priority Substance (Ref. 2). Each document includes an overview of the requirements in TSCA section
TSCA section 6(b)(1)(A) requires EPA to determine whether a chemical may present unreasonable risk “because of a potential hazard and a potential route of exposure,” indicating that hazard and exposure potential are considerations for the risk-based priority designations.
In the screening reviews conducted for prioritization, EPA considered reasonably available information to identify the relevant potentially exposed or susceptible subpopulations, such as children, workers or consumers. EPA used human health hazard information, the conditions of use, and exposure potential to identify potentially exposed or susceptible subpopulations. These data provide an indication about whether children or other susceptible subpopulations may be potentially exposed to the reported chemical.
Leading up to the nine- to twelve-month statutory window for prioritization, EPA worked diligently to gather stakeholder input on the process for identifying candidates for initiation of prioritization. On December 11, 2017, EPA held a public meeting to discuss possible approaches for identifying potential candidate chemicals for EPA's prioritization process under TSCA (82 FR 51415). EPA described and took comment on a number of possible approaches that could guide the Agency in identification of potential candidate chemicals for prioritization. EPA considered that input and on October 5, 2018, published notice of its release of “A Working Approach for Identifying Potential Candidate Chemicals for Prioritization” and opened a docket for comment (83 FR 50366). When prioritization was actually initiated under the statutory timeline, EPA provided an opportunity for the public to provide information for the chemical substances by publishing the notice initiating the prioritization process (Ref. 1). In the notice with the proposed priority designation (Ref. 2), EPA developed a screening review document for each candidate chemical substance to identify the information, analysis and basis used to support the proposed Low-Priority Substance designation. These documents include linked citations to the Health and Environmental Research Online (HERO) database (Ref. 12) for all references used in the literature review for each of these chemical substances. Those references are accessible to the public via links provided in the HERO database.
Every chemical substance may present risks of one sort or another. A spill of fresh water into a marine environment may present risks to aquatic life, and excessive consumption of water may present a risk of water intoxication to humans. People encounter chemicals in their daily lives that may present some risk. Notably, EPA's role in prioritization and risk evaluation under section 6 of TSCA is to scrutinize chemical substances for
In the final prioritization and risk evaluation rules, EPA retained its discretion by not promulgating a definition of unreasonable risk (82 FR 33726; Ref. 9). Indeed, in the risk evaluation rule's preamble, EPA discussed a non-exhaustive list of factors that the Agency may weigh in considering unreasonable risk: “To account for the number of different risk characterization approaches and for changing science, EPA will not include any specific definition in this final rule. To make a risk determination, EPA may weigh a variety of factors in determining unreasonable risk. The Administrator will consider relevant factors including, but not limited to: The effects of the chemical substance on health and human exposure to such substance under the conditions of use (including cancer and non-cancer risks); the effects of the chemical substance on the environment and environmental exposure under the conditions of use; the population exposed (including any susceptible populations), the severity of hazard (the nature of the hazard, the irreversibility of hazard), and uncertainties” (82 FR 33726 at 33735). In recently issued draft risk evaluations, EPA further elaborated: “EPA also takes into consideration the Agency's confidence in the data used in the risk estimate. This includes an evaluation of the strengths, limitations and uncertainties associated with the information used to inform the risk estimate and the risk characterization.”
The statute tasks the Agency with first teasing apart and designating High-Priority Substances for risk evaluation from Low-Priority Substances that will not proceed to risk evaluation—at least not at the current time based upon EPA's review of reasonably available information. For High-Priority Substances, EPA must proceed to risk evaluation and, upon any determination of unreasonable risk, to risk management.
The statutory framework is thus clear that prioritization is not meant to be a risk evaluation. Nor can it be with the timeline provided under TSCA. The statute required that EPA designate 20 High-Priority Substances and 20 Low-Priority Substances within three and a half years of enactment (TSCA section 6(b)(2)(B)). Yet EPA first had to undertake a notice-and-comment rulemaking to lay out the process for this prioritization process (TSCA section 6(b)(1)(A)). The statute further specified the prioritization timeline: It must include multiple stages (initiation plus opportunity for public comment, with opportunity for extension; proposal plus opportunity for public comment; and final designation), and it must last no longer than one year but no shorter than nine months (TSCA section 6(b)(1)(C)). Between the statutory window of no more than one year for the entire prioritization process, the statutory requirement for EPA to designate 20 Low-Priority Substances by December 2019, and the plain statutory text explaining that EPA is to use a “screening process” to designate “low-priority” substances “for which risk evaluations are not warranted at the time,” the statute is clear that EPA need not perform nearly as exhaustive a review of a chemical substance as a risk evaluation before designating the chemical substance as a Low-Priority Substance.
Moreover, Congress chose not to define “screening process” in the statute, leaving EPA the discretion to create a risk-based screening process according to the considerations expressed in section 6(b)(1)(A). EPA created a transparent literature review method for the purposes of prioritization and screening review under this section. The Approach Document (Ref. 10) includes a description of elements for weight of the scientific evidence and explains how these can be applied in a manner appropriate to screening-level review and Low-Priority Substance designations. The Approach Document (Ref. 10) explains the methods used to ensure comprehensive, objective, transparent and consistent review of reasonably available information.
EPA included exposure and potential changes in exposure through considerations such as conditions of use (including all known, intended or reasonably foreseen uses), significant changes in the conditions of use, production volume, and significant changes in the production volume. The selection of chemical substances with consistently low-hazard characteristics means that an increase in the frequency or magnitude of exposure would not significantly change the outcome of a screening-level review. In compliance with section 26, EPA considered the reasonably available information, including studies and data, on each proposed Low-Priority Substance relevant to the screening criteria and used such information in a manner consistent with best available science. EPA notes the following text from the Procedures for Prioritization of Chemicals for Risk Evaluation Under the Toxic Substances Control Act: “The screening review is not a risk evaluation, but rather a review of reasonably available information on the chemical substance that relates to the screening criteria. EPA expects to review all sources of relevant information, consistent with the scientific standards in 15 U.S.C. 2625(h), while conducting the screening review” (Ref. 9 at 33759).
EPA also kept in mind the nine- to twelve-month deadline to complete the prioritization process, while accommodating and incorporating the statutorily-required cumulative six months of public comment. Congress recognized the important of public input and EPA has considered and incorporated, as appropriate, the comments that were received. The statutory provisions at TSCA sections 6(b)(1)(A) and 6(b)(1)(B)(ii) direct EPA to undertake a limited screening process and to render priority determinations based on sufficient supporting information. Congress's requirement for EPA to designate twenty chemical substances as Low-Priority Substances within three and a half years after the Lautenberg amendments to TSCA, within the nine- to twelve-month process prescribed by the statute, and
Still, the final, yet not permanent, nature of the Low-Priority Substance designation gives EPA the authority to revisit a Low-Priority Substance designation given the ever-changing reality of scientific discovery. EPA notes the following text from the Procedures for Prioritization of Chemicals for Risk Evaluation Under the Toxic Substances Control Act: “Designation of a chemical substance as a Low-Priority Substance under § 702.11 means that a risk evaluation of the chemical substance is not warranted at the time, but does not preclude EPA from later revising the designation pursuant to § 702.13, if warranted” (40 CFR 702.15; Ref. 9). EPA further notes the following text from Senate Report 114-67—Frank R. Lautenberg Chemical Safety for the 21st Century Act: “By including these mandatory criteria in the statute, it is the Committee's intent to require EPA to ensure that important, broad science-based considerations, classifications and designations drive the prioritization screening process, without locking EPA into specific designations based upon ever-changing science” (Ref. 12). EPA's prioritization rule expressly recognizes that EPA may revise a Low-Priority Substance designation based on reasonably available information (40 CFR 702.13).
The proposed designation stage of the prioritization process (Ref. 2) included a 90-day comment period during which interested persons were able to submit relevant information on those chemical substances proposed for Low-Priority Substance designation. All hazard and fate information for these proposed Low-Priority Substances was collected and evaluated in accordance with the methodology laid out in the Approach Document (Ref. 10). Information gathered according to this Approach Document was included in each chemical substance's screening review. EPA considered the information submitted during the screening review and the proposed priority designation public comment period for specific chemical substances, as appropriate, in finalizing the Low-Priority Substance designation. During the public comment period for the proposed designation stage, EPA received 11 submissions from eight different entities, including environmental and health advocacy groups, a trade association, an academic institution, and anonymous commenters. A high-level synopsis of comments received during the proposed designation stage, and Agency responses to those comments, follows. Additional information is included in the Agency's full response to general comments document (Ref. 7) and in its full response to chemical-specific comments document (Ref. 8).
The following provides an overview of public comments received during the proposal and EPA's responses.
One commenter recommended that EPA should consider physical hazards, such as flammability, self-ignition, and explosive properties, when determining whether a substance meets the requirements for low-priority designation. The commenter wrote that TSCA does not define “hazard,” so the ordinary meaning of “a danger or risk” should be applied. The commenter pointed to the dossier for 3-methoxybutyl acetate as an example of EPA not considering or analyzing that substance's moderate flammability.
Low-Priority Substance designations are not determinations that these chemical substances do not present any risks, rather that EPA, through the prioritization process, has determined that sufficient information supports the determination that these chemical substances do not meet the standard provided in TSCA section 6(b)(1)(B)(i) to designate these chemical substances as High-Priority Substances.
EPA used reasonably available information, including public comments received on specific chemical substances during the 90-day comment periods following initiation of the prioritization process and proposal of the designations for Low-Priority Substances, to screen the candidate chemical substances against the criteria and considerations in TSCA section 6(b)(1)(A) and 40 CFR 702.9 (see Unit III.).
Each supporting document for the chemical substances designated as a Low-Priority Substance includes the information, analysis and basis for the
EPA is publishing the final designation for the following 20 chemical substances as Low-Priority Substances for which risk evaluation is not warranted at this time. Using the approach described in Unit IV.A., and including information provided by commentators during comment periods in the designation process, as appropriate, the final designations are based on the conclusion that the chemical substance satisfies the definition of Low-Priority Substance. Under TSCA section 6(b)(1)(B) and implementing regulations (40 CFR 702.3), a Low-Priority Substance is described as a chemical substance that the Administrator concludes does not meet the standard for designation as a High-Priority Substance, based on information sufficient to establish that conclusion, without consideration of costs or other non-risk factors. The chemical substances designated as Low-Priority Substances are listed below:
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The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
Environmental Protection Agency (EPA).
Notice.
EPA is announcing the availability of and soliciting public comment on the draft Toxic Substances Control Act (TSCA) risk evaluation of trichloroethylene (TCE). EPA is also submitting the same document to the TSCA Science Advisory Committee on Chemicals (SACC) for peer review and is announcing that there will be an in-person public meeting of the TSCA SACC to consider and review the draft risk evaluation. Preceding the in-person meeting, there will be a preparatory virtual public meeting for the panel to consider the scope and clarity of the draft charge questions for the peer review. The purpose of conducting risk evaluations under TSCA is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation.
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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 public in general. This action may be of interest to persons who are or may be required to conduct testing and those interested in risk evaluations of chemical substances under TSCA, 15 U.S.C. 2601
TSCA section 6, 15 U.S.C. 2605, requires EPA to conduct risk evaluations to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.” 15 U.S.C. 2605(b)(4)(A). TSCA sections 6(b)(4)(A) through (H) enumerate the deadlines and minimum requirements applicable to this process, including provisions that provide instruction on chemical substances that must undergo evaluation, the minimum components of a TSCA risk evaluation, and the timelines for public comment and completion of the risk evaluation. TSCA also requires that EPA operate in a manner that is consistent with the best available science, make decisions based on the weight of the scientific evidence and consider reasonably available information. 15 U.S.C. 2625(h), (i), and (k).
The statute identifies the minimum components for all chemical substance risk evaluations. For each risk evaluation, EPA must publish a document that outlines the scope of the risk evaluation to be conducted, which includes the hazards, exposures, conditions of use, and the potentially exposed or susceptible subpopulations that EPA expects to consider. 15 U.S.C. 2605(b)(4)(D). The statute further provides that each risk evaluation must also: (1) Integrate and assess available information on hazards and exposures for the conditions of use of the chemical substance, including information that is relevant to specific risks of injury to health or the environment and information on relevant potentially exposed or susceptible subpopulations; (2) describe whether aggregate or sentinel exposures were considered and the basis for that consideration; (3) take into account, where relevant, the likely duration, intensity, frequency, and number of exposures under the conditions of use; and (4) describe the weight of the scientific evidence for the identified hazards and exposures. 15 U.S.C. 2605(b)(4)(F)(i)-(ii) and (iv)-(v). Each risk evaluation must not consider costs or other nonrisk factors. 15 U.S.C. 2605(b)(4)(F)(iii).
The statute requires that the risk evaluation process last no longer than three years, with a possible additional six-month extension. 15 U.S.C. 2605(b)(4)(G). The statute also requires that the EPA allow for no less than a 30-day public comment period on the draft risk evaluation, prior to publishing a final risk evaluation. 15 U.S.C. 2605(b)(4)(H).
EPA is announcing the availability of and seeking public comment on the draft risk evaluation of the chemical substance identified in Unit II. EPA is seeking public comment on all aspects of the draft risk evaluation, including any preliminary conclusions, findings, and determinations, and the submission of any additional information that might be relevant to the draft risk evaluation, including the science underlying the risk evaluation and the outcome of the systematic review associated with the chemical substance. This 60-day comment period on the draft risk evaluation satisfies TSCA section 6(b)(4)(H), which requires EPA to “provide no less than 30 days public notice and an opportunity for comment on a draft risk evaluation prior to publishing a final risk evaluation” and 40 CFR 702.49(a), which states that “EPA will publish a draft risk evaluation in the
EPA is also submitting the draft risk evaluation and associated supported documents to the TSCA SACC for peer review and announcing the meeting for the peer review panel. All comments submitted to the docket on the draft risk evaluation by the deadline identified in the
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The risk evaluation process is the second step in EPA's existing chemical process under TSCA, following prioritization and before risk management. As this chemical is part of the first ten chemical substances undergoing risk evaluation, the chemical substance was not required to go through prioritization (81 FR 91927, December 19, 2016) (FRL-9956-47). The purpose of conducting risk evaluations is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation. As part of this process, EPA must evaluate both hazard and exposure, not consider costs or other nonrisk factors, use reasonably available information and approaches in a
The specific risk evaluation process that EPA has established by rule to implement the statutory process is set out in 40 CFR part 702 and summarized on EPA's website at
Trichloroethylene (TCE) has a wide-range of uses in consumer and commercial products and in industry. An estimated 84% of TCE's annual production volume is used as an intermediate in the manufacture of the hydrofluorocarbon HFC-134a. Another 15% of TCE production volume is used as a degreasing solvent, leaving approximately 1% for other uses. The total aggregate production volume decreased from 220.5 to 171.9 million pounds between 2012 and 2015.
Information about the problem formulation and scope phases of the TSCA risk evaluation for this chemical is available at
The TSCA SACC was established by EPA in 2016 and operates in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix 2
The TSCA SACC is comprised of experts in: Toxicology; human health and environmental risk assessment; exposure assessment; and related sciences (
EPA's background documents, related supporting materials, and draft charge questions to the TSCA SACC are available on the TSCA SACC website and in the docket established for the specific chemical substance. In addition, EPA will provide additional background documents (
After the public meeting, the TSCA SACC will prepare meeting minutes summarizing its recommendations to the EPA. The meeting minutes will be posted on the TSCA SACC website and in the relevant docket.
The focus of the public meetings is to peer review EPA's draft risk evaluation. After the peer review process, EPA will consider peer reviewer comments and recommendations and public comments, in finalizing the risk evaluation. The draft risk evaluation contains: Discussion of chemistry and physical-chemical properties; characterization of conditions of use; environmental fate and transport assessment; human health exposures; environmental hazard assessment; risk characterization; risk determination; and a detailed description of the systematic review process developed by the Office of Pollution Prevention and Toxics to search, screen, and evaluate scientific literature for use in the risk evaluation process.
You may participate in the public meetings by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify the corresponding docket ID number in the subject line on the first page of your request.
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The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreements in this matter settle alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis of Agreement Containing Consent Order to Aid Public Comment describes both the allegations in the complaints and the terms of the consent orders—embodied in the consent agreements—that would settle these allegations.
Comments must be received on or before March 27, 2020.
Interested parties may file comments online or on paper, by following the instructions in the Request for Comment part of the
Joseph Lipinsky (206-220-4473), Federal Trade Commission, 915 Second Avenue, Room 2896, Seattle, WA 98174.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC website (for February 20, 2020), at this web address:
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before March 27, 2020. Write “Rent-to-Own Store Swaps; File No. 191 0074” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the
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 through the
If you prefer to file your comment on paper, write “Rent-to-Own Store Swaps; File No. 191 0074” on your comment and on the envelope, and mail your comment to the following address:
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.
Visit the FTC website at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order with Aaron's, Inc. (“Aaron's”); an Agreement Containing Consent Order with Buddy's Newco, LLC (“Buddy's”); and an Agreement Containing Consent Order with Rent-A-Center, Inc. (“RAC”) (“Consent Agreements”). The proposed Consent Agreements are intended to remedy anticompetitive effects resulting from reciprocal purchase agreements made between Aaron's, Buddy's, and RAC, and certain of their competitors in the brick-and-mortar rent-to-own (“RTO”) industry.
Pursuant to the reciprocal purchase agreements, Aaron's, Buddy's, and RAC sold consumer rental contracts to nearby competitors contingent on Aaron's, Buddy's, or RAC acquiring that competitor's consumer rental contracts in another geographic area. These reciprocal purchase agreements, called swap agreements (“Swap Agreements”) by the RTO industry, also included non-competition agreements whereby Aaron's, Buddy's, or RAC and the nearby competitors each agreed to close stores associated with the consumer rental contacts being sold and to not open new stores within a specified distance for a limited amount of time. Not all swap agreements violate the antitrust laws. Swap agreements between companies in the same industry that generate significant procompetitive benefits for consumers, such as more efficient distribution or creation of a new product, may not violate the law. The Swap Agreements and ancillary non-competition agreements at issue in the present case, however, likely reduced competition between Aaron's, Buddy's, RAC, and their competitors in the RTO industry in several local markets in the United States, reducing consumer choice and depriving consumers of the benefits of price and quality competition.
Under the Consent Agreements, Aaron's and Buddy's agree that they will no longer enter into Swap Agreements and will not take any steps to enforce any non-competition agreements associated with the Swap Agreements. The proposed Decision and Order (“Order”) in each Consent Agreement preserves competition in the RTO industry by prohibiting such Swap Agreements and enforcement of ancillary non-competition agreements.
Aaron's is headquartered in Atlanta, Georgia. As of December 2018, Aaron's, the second largest operator of RTO stores, has 1,689 stores, comprised of 1,312 company-operated stores and 377 independently owned franchised stores operating in 47 states. Aaron's estimates its 2018 fiscal year revenues were roughly $3.8 billion with over $196 million in net earnings.
Buddy's, doing business as Buddy's Home Furnishings, is a limited liability company headquartered in Orlando, Florida. Buddy's operates approximately 300 franchised and corporate stores throughout the Continental United States.
Rent-A-Center, Inc. is a corporation headquartered in Plano, Texas. RAC has approximately 2,800 company-owned stores and 225 RAC franchised stores throughout the United States.
In the RTO business, consumers do not buy merchandise outright, but rather take possession after entering into rental contracts with an RTO company. The contracts are shortterm contracts (typically one week or one month) that renew when the consumer makes the lease payment. The rental contracts are at-will; consumers may terminate the contracts and return the merchandise without penalty. The rental contracts create a recurring revenue stream for the RTO company. If an RTO store closes, the RTO company will either transfer the store's rental contracts to another of its own stores, or sell them to a nearby competitor.
A large percentage of RTO customers travel to the RTO store associated with their rental contract to make their weekly or monthly payments. If an RTO company seeks to close a store and
Between 2015 and 2018, Aaron's, Buddy's, and RAC entered into several Swap Agreements with one another and with other RTO operators. These agreements typically covered stores in multiple different markets. Each Swap Agreement consists of two related transactions. In one transaction, a competitor closes one or more RTO stores and sells the closing stores' consumer rental contracts to Aaron's, Buddy's, or RAC, which have RTO stores near the competitor's soon-to-close stores. In the other transaction, the facts are reversed: Aaron's, Buddy's, or RAC closes one or more of its RTO stores and sells the soon-to-close stores' consumer rental contracts to the competitor which has RTO stores nearby. The sales of the rental contracts by Aaron's, Buddy's, or RAC is explicitly contingent on the purchase of the competitor's rental contracts. Parties to the Swap Agreement also sign non-compete agreements, usually for a three-year period, for the areas in the immediate vicinity of the closed stores.
The evidence indicates that at least some of the Swap Agreements entered into by Buddy's, Aaron's, and RAC, had the purpose and effect of facilitating each party's ability to induce its competitor to exit a market. Such agreements are a form of restraint that reduces competition and creates a clear threat of consumer harm. Consumers in the affected geographic areas lost any benefits of competition resulting from the closing of RTO stores and had fewer options for rental merchandise. Moreover, the evidence indicates that Aaron's, Buddy's, and RAC closed stores that might not have been closed but for the Swap Agreements. As a result, the FTC has issued its Complaints and entered into the Consent Agreements, which remedy the harm to competition.
The proposed Orders fully address Aaron's, Buddy's, and RAC's past actions and contain important fencing in and notification provisions. The Orders prohibit Aaron's, Buddy's, and RAC from entering into any future Swap Agreements and from enforcing any non-compete clauses that are still in effect from past Swap Agreements. The Orders also prohibit any Aaron's or Buddy's representatives from serving on the Board of Directors of any of their competitors, or any competitor's representatives from serving on the Aaron's or Buddy's Board. RAC's Order does not contain this prohibition because, unlike Buddy's and Aaron's, there is no evidence that a RAC representative has previously served on a competitor's Board of Directors. The Orders require Aaron's and Buddy's to establish antitrust compliance programs, while RAC must establish a compliance program related to its Order. Finally, all the Orders impose reporting requirements, and the Orders will terminate in 20 years.
The Commission does not intend this analysis to constitute an official interpretation of the proposed Orders or to modify their terms in any way.
By direction of the Commission.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (DHHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), in the Department of Health and Human Services (DHHS), announces the opening of a docket to obtain comment on the
Written comments must be received on or before April 27, 2020.
You may submit comments, identified by Docket No. CDC-2020-0011, by any of the following methods:
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Kendra Cox, Division of Healthcare Quality Promotion, National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention, 1600 Clifton Road NE, Mailstop H16-2, Atlanta, Georgia, 30329; Telephone: (404) 639-4000.
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data related to the
Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
The
The
Since 2015, the Healthcare Infection Control Practices Advisory Committee (HICPAC) has worked with national partners, academicians, public health professionals, healthcare providers, and other partners to develop this
The updated draft recommendations in this
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended, and the Determination of the Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Request for information.
The National Institute for Occupational Safety and Health (NIOSH), within the Centers for Disease Control and Prevention (CDC), announces an opportunity to provide input on a NIOSH plan to develop resources and conduct research on the topic of
Comments must be received April 27, 2020.
You may submit written comments, identified by docket numbers CDC-2020-0001 and NIOSH-333, by either of the following two methods:
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L. Casey Chosewood, NIOSH, 1600 Clifton Road, NE; Mailstop V24-4, Atlanta, GA 30329; phone: 404-498-2483 (not a toll-free number); email:
The United States is in the midst of a drug overdose epidemic. More than 70,000 Americans died of drug overdoses in 2017, more than any year on record. Two-thirds of drug overdoses involved an opioid.
The effects of substance use and misuse are not isolated to work or home environments, and the potential for developing a substance use disorder may be preceded by injuries that happen in the workplace, with the consequences affecting both an individual's working life as well as their home life. Regardless of the circumstances that may have led to substance misuse, employment is a key goal among individuals in recovery.
In a
Preventing work-related injuries and illnesses;
Promoting the use of alternatives to opioids for pain relief associated with a workplace injury or illness;
Preventing initiation of misuse;
Developing return-to-work plans for employees after medical treatment;
Supporting second chance employment, a process that allows for workers in recovery to rejoin the workforce after a job loss related to drug misuse;
Providing accommodations, including access to medication-based or medication-assisted treatment (MAT) together with individual counseling;
Offering peer support groups; and
Peer coaching.
NIOSH is interested in input related to WSRPs from a variety of stakeholders, including employers, labor unions, workers, researchers, treatment providers, and government agencies at all levels (Federal, state, territorial, local, and tribal). Information and data from interested parties is requested on the following questions:
1. What elements, attributes, activities, and resources should be involved in a
2. How do the elements, attributes, activities, and resources that make up WSRPs vary by industry and establishment size?
3. What WSRPs or related approaches are you aware of? Do any of these programs have evaluation or other outcome measures available?
4. Are you aware of any programs that may help employers fund or otherwise develop WSRPs? If so, what are they?
5. What information is available about possible benefits for employers in hiring and/or retaining workers who are in recovery from substance misuse or a substance use disorder?
6. What are the biggest concerns, fears, or challenges around WSRPs? If available, please provide any data or information to support these concerns.
7. What training related to this effort would be of value to managers/supervisors? To workers?
8. Are you aware of policies that organizations (including yours) have in place to address substance misuse and substance use disorder and, if so, what are they? (
9. Which parts of your organization are involved in issues related to substance misuse or substance use disorders among your workers? (
10. What services are offered as part of the program? Are there any limits or restrictions on these resources (
11. Are any of these services available to employees dealing with the substance use disorder of another person, such as a spouse/partner, child, parent, or close friend? If so, what are they?
12. What major challenges and successes has your program had?
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by April 27, 2020.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
In accordance with Title I, Part 423, Subpart K (§ 423.514), the Act requires each Part D Sponsor to have an effective procedure to provide statistics indicating:
Subsection 423.505 of the MMA regulation establishes as a contract provision that Part D Sponsors must comply with the reporting requirements for submitting drug claims and related information to CMS.
2.
• Provide a source of information from which selected measures could be publicly reported to beneficiaries and their family members as a decision aid for selection of a hospice program;
• Aid hospices with their internal quality improvement efforts and external benchmarking with other facilities; and
• Provide CMS with information for monitoring the care provided.
CAHPS is a standardized family of surveys developed by the Agency for Healthcare Research and Quality (AHRQ) for patients to assess and report the quality of care they receive from their health care providers and health care delivery systems.
CMS announced its intention to implement the CAHPS® Hospice Survey in the FY 2014 Hospice Wage Index and Payment Rate Update; Hospice Quality Reporting Requirements; and Updates on Payment Reform. National implementation of the survey launched on January 1, 2015 with hospices administering the survey for a “dry run” for at least one month in the first quarter of 2015. Starting April 1, 2015 (second quarter), hospices were required to participate on a monthly basis in order to receive the full Annual Payment Update (APU). Implementation is ongoing and there have been no changes to the questionnaire.
Publicly reporting comparative survey results related to patients' perspectives of the care they receive from providers and plans collected through the Consumer Assessment of Healthcare Providers and Systems (CAHPS®) Surveys support CMS's efforts to put patients first and improve the beneficiary experience.
Administration for Community Living (ACL), HHS.
Notice.
The Administration for Community Living is announcing that the proposed collection of information listed above has been submitted to the Office of Management and Budget (OMB) for review and clearance as required under the Paperwork Reduction Act of 1995. This 30-Day notice collects comments on the information collection requirements related to an extension without change and solicits comments on the information collection requirements relating to the National Adult Maltreatment Reporting System (NAMRS).
Submit written comments on the collection of information by March 27, 2020.
Submit written comments on the collection of information by:
(a)
(b) fax to 202.395.5806, Attn: OMB Desk Officer for ACL; or
(c) by mail to the Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW, Rm. 10235, Washington, DC 20503, Attn: OMB Desk Officer for ACL.
Stephanie Whittier Eliason, Administration for Community Living, Washington, DC 20201, at 202-795-7467 or
In compliance with 44 U.S.C. 3507, ACL has submitted the following proposed collection of information to OMB for review and clearance. The National Adult Maltreatment Reporting System authorized under the Elder Justice Act of 2009, which amends Title XX of the Social Security Act [42.U.S.C. 13976
The Elder Justice Coordinating Council (EJCC)
NAMRS is a voluntary system that has been annually collecting since FFY2016 both summary and de-identified case-level data on APS investigations submitted by states. NAMRS consists of three components:
(1) ACL proposes to collect descriptive data on state agency and practices from all states through the “Agency Component,” and
(2) Case-level, non-identifiable data on persons who receive an investigation by APS in response to an allegation of abuse, neglect, or exploitation through “Case Component”, or
(3) For states that are unable to submit a case-level file through the “Case Component,” a “Key Indicators Component” will be available for them to submit data on a smaller set of core items.
ACL provides technical assistance to states to assist in the preparation of their data submissions. Respondents are state APS agencies and APS agencies in the District of Columbia, Puerto Rico, Guam, Northern Mariana Islands, Virgin Islands, and American Samoa (states, hereafter). No personally identifiable information is collected. The proposed form(s) may be found on the ACL website at
ACL estimates the burden associated with this collection of information as follows: 56 States will respond every year. It will take approximately 4 hours for all 56 states to respond to the Agency Component, 20 hours for 17 states to respond to the Key Indicator Component, and 100 hours for 35 states to respond to the Case Component. The total annual burden is estimated to be 4,164 hours. The estimates are based on the amount of time States have previously reported in completing the data collection instruments; continued increase in the number of states reporting on Case Component and Key Indicator Component data; and assumption of modest incremental efficiencies by States in reporting data to NAMRS every year, including, most significantly, minimal need to recode to extract data after the initial year.
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 “Recommendations for Dual 510(k) and CLIA Waiver by Application Studies.” It describes study designs for generating data that may support both 510(k) clearance and Clinical Laboratory Improvement Amendments (CLIA) waiver. Use of the Dual 510(k) and CLIA Waiver by Application pathway is optional; however, FDA believes this pathway is in many instances the least burdensome and fastest approach for manufacturers to obtain a CLIA waiver at the same time as 510(k) clearance for new in vitro diagnostic (IVD) tests. FDA believes increased use of this pathway will speed up the process of bringing simple and accurate IVD tests to CLIA-waived settings, which will better serve patients and providers.
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)).
An electronic copy of the guidance document is available for download from the internet. See the
Peter Tobin, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3435, Silver Spring, MD 20993-0002, 240-402-6169.
Typically, in an application for CLIA waiver (CLIA Waiver by Application) a manufacturer submits evidence to FDA that a previously cleared or approved test, initially categorized as moderate complexity, meets the CLIA statutory criteria for waiver (see 42 U.S.C. 263a(d)(3)) and requests that FDA categorize the test as waived. This means that historically a CLIA Waiver by Application has followed clearance or approval of an IVD test.
While a premarket notification (510(k); 21 U.S.C. 360(k)) and CLIA Waiver by Application each include discrete elements not required in the other, both submissions generally include comparison and reproducibility studies. For a 510(k), such studies are often performed by trained operators (
An applicant may choose to conduct a single set of comparison and reproducibility studies with untrained operators to satisfy certain requirements to establish both substantial equivalence under section 513(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360c(i)) for 510(k) clearance and simplicity and insignificant risk of erroneous results under 42 U.S.C. 263a(d)(3) for CLIA waiver. To streamline the review of such data, the Dual 510(k) and CLIA Waiver by Application (Dual Submission) pathway was established as part of the Medical Device User Fee Amendments of 2012, allowing the review of both a 510(k) and CLIA Waiver by Application within a single submission with a reduced overall review time compared to separate, sequential submissions.
FDA considered comments received on the draft guidance that appeared 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 “Recommendations for Dual 510(k) and CLIA Waiver by Application Studies.” 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.
Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This guidance refers to previously approved collections of information. 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. 3501-3521). The collections of information in the following FDA regulations and guidance have been approved by OMB as listed in the following table:
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 “Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices.” FDA has updated this guidance to implement the waiver improvements section of the 21st Century Cures Act (the Cures Act), which requires FDA to revise “Section V. Demonstrating Insignificant Risk of an Erroneous Result—Accuracy” of the guidance “Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices” (“2008 CLIA Waiver Guidance”) that was issued on January 30, 2008. The remainder of the 2008 CLIA Waiver Guidance, with exception of technical edits for consistency with the newly amended section V, has not been substantively changed. This final guidance provides additional and updated approaches for demonstrating that a test meets the statutory criteria for waiver and includes FDA's revised thinking regarding “the appropriate use of comparable performance between a waived user and a moderately complex laboratory user to demonstrate accuracy.”
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:
• Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• 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)).
An electronic copy of the guidance document is available for download from the internet. See the
Peter Tobin, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3435, Silver Spring, MD 20993-0002, 240-402-6169 or Stephen Ripley, 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.
This final guidance revises the guidance titled “Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices” (“2008 CLIA Waiver Guidance”) that was issued on January 30, 2008, to implement section 3057 of the Cures Act (Pub. L. 114-255), which requires FDA to revise “Section V. Demonstrating Insignificant Risk of an Erroneous Result—Accuracy” of the 2008 CLIA Waiver Guidance. The remainder of the 2008 CLIA Waiver Guidance, with exception of technical edits for consistency with the newly amended section V, has not been substantively changed. This update provides additional approaches for demonstrating that a test meets the criteria in 42 U.S.C. 263a(d)(3)(A) and includes FDA's revised thinking regarding “the appropriate use of comparable performance between a waived user and a moderately complex laboratory user to demonstrate accuracy.”
The Secretary of Health and Human Services has delegated to FDA the authority to determine whether particular tests are “simple” and have “an insignificant risk of an erroneous result” under CLIA and thus are eligible for CLIA waiver (69 FR 22849, April 27, 2004). The Centers for Medicare & and Medicaid Services is responsible for oversight of clinical laboratories, which includes issuing Certificates of Waiver. CLIA requires that clinical laboratories obtain a certificate before accepting materials derived from the human body for laboratory tests (42 U.S.C. 263a(b)).
The 2008 CLIA Waiver Guidance describes recommendations for device manufacturers about study design and analysis for CLIA Waiver by Application to support an FDA determination as to whether the device meets the statutory criteria for waiver.
On November 29, 2017, FDA issued a draft guidance titled “Select Updates for Recommendations for Clinical Laboratory Improvement Amendments of 1988 Waiver Applications for Manufacturers of In Vitro Diagnostic Devices.” This draft guidance proposed additional approaches for demonstrating that a test meets the criteria in 42 U.S.C. 263a(d)(3)(A). On November 29, 2018, FDA issued a revised draft guidance by the same title, which appeared 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 “Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices.” 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.
Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This guidance refers to previously approved collections of information. 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. 3501-3521). The collections of information in the following FDA regulations and guidance have been approved by OMB as listed in the following table:
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Product Labeling for Laparoscopic Power Morcellators.” This draft guidance proposes updated “Contraindications” and “Warnings” in product labeling information to reflect the state of the science and available technology regarding use of laparoscopic power morcellators (LPMs). This draft guidance is not final nor is it in effect at this time.
Submit either electronic or written comments on the draft guidance by April 27, 2020 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance 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)).
An electronic copy of the guidance document is available for download from the internet. See the
Veronica Price, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2659, Silver Spring, MD 20993-0002, 301-796-6538.
Following issuance of the 2014 guidance document entitled “Immediately in Effect Guidance Document: Product Labeling for Laparoscopic Power Morcellators,” (
FDA also considered scientific information pertaining to the risk of spreading benign uterine tissue beyond the uterus during gynecologic surgeries when LPMs are used. Parasitic myomas and disseminated peritoneal leiomyomatosis, while benign, have been associated with the need for additional surgery due to symptoms
For these reasons, FDA is proposing in this draft guidance to update its recommendations, as originally described in the 2014 guidance document, concerning the content and format of certain labeling information for LPMs. Specifically, FDA is recommending that manufacturers incorporate into the labeling for these devices information providing greater specificity regarding the risks of use as it relates to age, information regarding the risk of spreading benign uterine tissue, and information regarding the use of LPM containment systems.
FDA considered comments received on the final guidance document that appeared in the
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Product Labeling for Laparoscopic Power Morcellators.” 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.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This draft guidance refers to previously approved collections of information. 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. 3501-3521). The collections of information in the following FDA regulations have been approved by OMB as listed in the following table:
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than April 27, 2020.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
MUA/P designations are geographic areas, or population groups within geographic areas, that are experiencing a shortage of primary care health care services based on the Index of Medical Underservice. MUAs are designated for the entire population of a particular geographic area. MUA/P designations are limited to particular subset of the population within a geographic area. Both designations were created to aid the federal government in identifying areas with healthcare workforce shortages.
As part of HRSA's cooperative agreement with the State Primary Care Offices (PCOs), the State PCOs conduct needs assessment in their states, determine what areas are eligible for designations, and submit designation applications for HRSA review via the Shortage Designation Management System (SDMS). Requests that come from other sources are referred to the PCOs for their review, concurrence, and submission via SDMS. In order to obtain a federal shortage designation for an area, population, or facility, PCOs must submit a shortage designation application through SDMS for review and approval by HRSA. Both the HPSA and MUA/P application request local, state, and national data on the population that is experiencing a shortage of health professionals and the number of health professionals relative to the population covered by the proposed designation. The information collected on the applications is used to determine which areas, populations, and facilities have qualifying shortages. In addition, interested parties, including the Governor, the State Primary Care Association, state professional associations, etc. are notified of each designation request submitted via SDMS for their comments and recommendations.
Previously, PCOs were required to provide HRSA with Census, American Community Survey, and Centers for Disease Control and Prevention data specific to the intended geographic area for designation known as a rational service area. With the development of the SDMS, PCOs are no longer required to provide this information as it is automatically populated in the system when they select the service area for designation.
HRSA reviews the HPSA applications submitted by the State PCOs, and—if they meet the designation eligibility criteria for the type of HPSA or MUA/P the application is for—designates the HPSA or MUA/P on behalf of the Secretary. HPSAs are statutorily required to be annually reviewed and revised as necessary after initial designation to reflect current data. HPSAs scores, therefore, may and do change from time to time. Currently, MUA/Ps do not have a statutorily mandated review period.
The lists of designated HPSAs are published annually in the
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before April 27, 2020.
Submit your comments to
When submitting comments or requesting information, please include the document identifier 0990-0438-60D, and project title for reference, to Sherrette Funn, the Reports Clearance Officer,
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
OMB No. 0990-0438—OS-Office of Population Affairs
Clearance is requested for three years.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits to conduct activities intended to enhance the propagation or survival of endangered or threatened species under the Endangered Species Act. We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
We must receive your written comments on or before March 27, 2020.
•
•
Robert Krijgsman, via phone at 760-431-9440, via email at
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications for permits under section 10(a)(1)(A) of the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531
With some exceptions, the ESA prohibits activities that constitute take of listed species unless a Federal permit is issued that allows such activity. The ESA's definition of “take” includes such activities as pursuing, harassing,
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered or threatened species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. These activities often include such prohibited actions as capture and collection. Our regulations implementing section 10(a)(1)(A) for these permits are found in the Code of Federal Regulations at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
Proposed activities in the following permit requests are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing these permits. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to these applications. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Written comments we receive become part of the administrative record associated with this action. 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 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. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
If we decide to issue permits to any of the applicants listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability and request for public comment.
We, the U.S. Fish and Wildlife Service, announce the availability of the draft recovery plan for the threatened eastern massasauga rattlesnake. We request review and comment on this draft recovery plan from local, State, and Federal agencies, and the public.
In order to be considered, comments must be received on or before March 27, 2020.
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•
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For additional information about submitting comments, see Availability of Public Comments in
Louise Clemency, by one of the methods in
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft recovery plan for the threatened eastern massasauga rattlesnake (
Section 4(f) of the Endangered Species Act of 1973, as amended (Act), requires the development of recovery plans for listed species, unless such a plan would not promote the conservation of a particular species. Also pursuant to section 4(f) of the Act, a recovery plan must, to the maximum extent practicable, include (1) a description of site-specific management actions as may be necessary to achieve the plan's goals for the conservation and survival of the species; (2) objective, measurable criteria that, when met, would support a determination under section 4(a)(1) that the species should be removed from the List of Endangered and Threatened Species; and (3) estimates of the time and costs required to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal.
The Service has revised its approach to recovery planning. The revised process is intended to reduce the time needed to develop and implement recovery plans, increase recovery plan relevancy over a longer timeframe, and add flexibility to recovery plans so they can be adjusted to new information or circumstances. A recovery plan will include statutorily required elements (objective, measurable criteria, site-specific management actions, and estimates of time and costs), along with a concise introduction and our strategy for how we plan to achieve species recovery. The recovery plan is supported by a separate Species Status Assessment. The essential component to flexible implementation under this recovery process is producing a separate working document called the Recovery Implementation Strategy (implementation strategy). The implementation strategy steps down from the more general description of actions in the recovery plan to detail the specific, near-term activities needed to implement the recovery plan. The implementation strategy will be adaptable by being able to incorporate new information without having to concurrently revise the recovery plan, unless changes to statutory elements are required. The implementation strategy will be developed following publication of the final recovery plan and will be made available on the Service's website at that time.
The EMR is a small pit viper that occurred historically in 10 States (Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania, and Wisconsin) and in Ontario, Canada. It is believed that populations have been extirpated in at least two States (Minnesota and Missouri). The species is impacted by a number of threats. The loss of habitat was historically, and continues to be, the threat with greatest impact to the species, either through loss of habitat to development or through changes in habitat structure due to vegetative succession. Poaching, either by persecution or illegal collection for the pet trade, is also a continuing threat. Disease, new or increasingly prevalent, is another emerging threat to the EMR. Additionally, this species is vulnerable to the effects of climate change through increasing intensity of winter droughts and increasing risk of summer floods,
The recovery strategy for the EMR includes addressing the threats of habitat loss due to development, conversion of habitat to agriculture, changes to land cover due to succession by invasive woody species, persecution or poaching, effects of climate change (flooding or drought), and emerging diseases. Maintaining healthy populations will require protecting sufficient quantity of high-quality habitat and the reduction or management of threats where these populations occur. To maximize use of limited resources, we need to identify, then focus management and protection on, specific populations that will ensure that the species' breadth of adaptive diversity is maintained. The strategy also includes increasing public tolerance and support for EMR conservation by working with landowners, partners, and the public. Lastly, successful recovery will necessitate an adaptive management approach. Using an adaptive management framework and monitoring during recovery implementation will allow us to evaluate how to best manage for suitable habitat conditions, protect against disease epidemics, and lessen the effects of climate change to ensure that the recovery actions are effective in recovering the EMR.
The ultimate recovery goal is to remove the eastern massasauga rattlesnake from the Federal List of Endangered and Threatened Wildlife (delist) by ensuring the long-term viability of the species in the wild. In the recovery plan, we define the following delisting criteria based on the best available information on the species:
1. The probability of continued persistence over 50 years is 95 percent within each of 3 conservation units.
2. An adequate quantity and configuration of land is being managed and is expected to continue to be managed in a way that will support EMR populations such that a probability of persistence of 95 percent over 50 years in each of the 3 conservation units is maintained.
3. Threats from climate change and disease are addressed such that a probability of persistence of 95 percent over 50 years in each of the 3 conservation units is maintained.
The map showing the three species conservation units is available on the internet at
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.
The authority for this action is section 4(f) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
The Bureau of Land Management (BLM) hereby provides constructive notice that it will issue an appealable decision approving conveyance of the surface and subsurface estates in certain lands to Ahtna, Incorporated, an Alaska Native regional corporation, pursuant to the Alaska Native Claims Settlement Act of 1971 (ANCSA).
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the time limits set out in the
You may obtain a copy of the decision from the Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, AK 99513-7504.
Matthew R. Lux, BLM Alaska State Office, 907-271-3176, or
As required by 43 CFR 2650.7(d), notice is hereby given that the BLM will issue an appealable decision to Ahtna, Incorporated. The decision approves conveyance of the surface and subsurface estates in certain lands pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601,
The decision addresses public access easements, if any, to be reserved to the United States pursuant to Sec. 17(b) of ANCSA (43 U.S.C. 1616(b)), in the lands described above.
The BLM will also publish notice of the decision once a week for four consecutive weeks in the “Anchorage Daily News” newspaper.
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until March 27, 2020 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4 shall be deemed to have waived their rights. Notices of appeal transmitted by facsimile will not be accepted as timely filed.
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
The Bureau of Land Management (BLM) hereby provides constructive Notice that it will issue an appealable decision approving conveyance of the surface estate in certain lands to Askinuk Corporation (Askinuk), for the Native village of Scammon Bay, pursuant to the Alaska Native Claims Settlement Act of 1971 (ANCSA). As provided by ANCSA, the BLM will convey a portion of the subsurface estate in the same lands to Calista Corporation when the BLM conveys the surface estate to Askinuk.
Any party claiming a property interest in these lands may appeal the decision in accordance with the requirements of 43 CFR part 4 within the time limits set out in the
You may obtain a copy of the decision from the BLM Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, AK 99513-7504.
Eileen Ford, phone: 907-271-5715, or email at
As required by 43 CFR 2650.7(d), Notice is hereby given that the BLM will issue an appealable decision to Askinuk. The decision approves conveyance of the surface estate in certain lands pursuant to ANCSA (43 U.S.C. 1601,
The decision addresses public access easements, if any, to be reserved to the United States pursuant to Sec. 17(b) of ANCSA (43 U.S.C. 1616(b)), in the lands described above.
The BLM will publish the Notice of the decision once a week for four consecutive weeks in the “The Delta Discovery” newspaper.
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until March 27, 2020 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
3. Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4 shall be deemed to have waived their rights. Notices of appeal transmitted by facsimile will not be accepted as timely filed.
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
The Bureau of Land Management (BLM) hereby provides constructive notice that it will issue an appealable decision approving conveyance of the surface estate in certain lands to Atmautluak Limited, for the Native village of Atmautluak, pursuant to the Alaska Native Claims Settlement Act of 1971 (ANCSA). As provided by ANCSA, the BLM will convey the subsurface estate in the same lands to Calista Corporation when the BLM conveys the surface estate to Atmautluak Limited.
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the time limits set out in the
You may obtain a copy of the decision from the Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13, Anchorage, AK 99513-7504.
Bettie Shelby, BLM Alaska State Office, 907-271-5596, or
As required by 43 CFR 2650.7(d), notice is hereby given that the BLM will issue an appealable decision to Atmautluak Limited. The decision approves conveyance of the surface estate in certain lands pursuant to ANCSA (43 U.S.C. 1601,
The decision addresses public access easements, if any, to be reserved to the United States pursuant to Sec. 17(b) of ANCSA (43 U.S.C. 1616(b)), in the lands described above.
The BLM will also publish notice of the decision once a week for four consecutive weeks in “The Bristol Bay
Any party claiming a property interest in the lands affected by the decision may appeal the decision in accordance with the requirements of 43 CFR part 4 within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until March 27, 2020 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4 shall be deemed to have waived their rights. Notices of appeal transmitted by facsimile will not be accepted as timely filed.
United States International Trade Commission.
Notice.
February 18, 2020.
Kristina Lara ((202) 205-3386), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Effective August 7, 2019, the Commission established a general schedule for the conduct of the final phase of its investigations on carbon and alloy steel threaded rod (“threaded rod”) from China, India, Taiwan, and Thailand,
On February 18, 2020, Commerce issued its final affirmative determinations that imports of threaded rod were being sold in the United States at less than fair value (“LTFV”), and were being subsidized by the governments of China and India.
This supplemental schedule is as follows: The deadline for filing supplemental party comments on Commerce's final antidumping and countervailing duty determinations is February 27, 2020. Supplemental party comments may address only Commerce's final antidumping and countervailing duty determinations regarding imports of threaded rod from China and India. These supplemental final comments may not contain new factual information and may not exceed five (5) pages in length. The supplemental staff report in the final phase of these investigations regarding subject imports from China and India will be placed in the nonpublic record on March 12, 2020; and a public version will be issued thereafter.
For further information concerning these investigations see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the 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.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission instituted this review on July 1, 2019 (84 FR 31341) and determined on October 4, 2019 that it would conduct an expedited review (85 FR 2147, January 14, 2020).
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 February 20, 2020. The views of the Commission are contained in USITC Publication 5019 (February 2020), entitled
By order of the Commission.
United States International Trade Commission.
Notice.
December 10, 2019.
Abu B. Kanu ((202) 205-2597), 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 (
Effective July 29, 2019, the Commission established a general schedule for the conduct of the final phase of its investigations on acetone from Belgium, Korea, Singapore, South Africa, and Spain,
On February 13, 2020, Commerce issued its final affirmative determinations that imports of acetone from Belgium, Korea, and South Africa were being sold at LTFV in the United States.
This supplemental schedule is as follows: The deadline for filing supplemental party comments on Commerce's final antidumping duty determination is February 28, 2020. Supplemental party comments may address only Commerce's final antidumping duty determination regarding imports of acetone from Belgium, Korea, and South Africa. These supplemental final comments may not contain new factual information and may not exceed five (5) pages in length. The supplemental staff report in the final phase of these investigations regarding subject imports from Belgium, Korea, and South Africa will be placed in the nonpublic record on March 10, 2020; and a public version will be issued thereafter.
For further information concerning these investigations see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (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.
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, “Request for State or Federal Workers'
The OMB will consider all written comments that agency receives on or before March 27, 2020.
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
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP, 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 sending an email to
This ICR seeks approval under the PRA for revisions to the Request for State or Federal Workers' Compensation Information. Division of Coal Mine Workers' Compensation (DCMWC) beneficiaries have their monthly benefits reduced dollar for dollar for other benefits that they receive attributable to their black lung disability from State or Federal workers' benefits. The CM-905 request the amount of those workers' compensation benefits. This information collection is a revision, because Minor changes have been made to CM-905. Description of changes: Eliminated requirement for the miner's full social security number and requiring only the last four digits, added two options to file this form (mail or electronically submit through the COAL Mine Portal), provided updated language for the Privacy Act Statement, and provided updated language for the Notice.
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.
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,
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Office of the Assistant Secretary Policy Chief Evaluation Office (OS) sponsored information collection request (ICR) revision titled, “Cascades Job Corps College Career Academy Pilot Evaluation,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before March 27, 2020.
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
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OS, Office of Management and Budget, Room 10235,
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA for revisions to the Cascades Job Corps College and Career Academy Pilot Evaluation. The Chief Evaluation Office of the U.S. Department of Labor (DOL) has commissioned an impact and implementation evaluation of the Cascades Job Corps College and Career Academy Pilot program. More specifically, this ICR is seeking a revision of previously approved ICR (1290-0012) for the data collection activities for the evaluation of the CCCA pilot. The OASP seeks approval in this submission for: (1) A baseline information form to support the impact study, (2) tracking data to support the planned 18-month follow-up survey, and (3) stakeholder interview and student focus group discussion guides to support the implementation study. This information collection is a revision, because this is an extension request with changes. We are requesting to add additional site visits for semi-structured interviews. Some of the data collection activities (
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.
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,
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Employee Benefit Plan Claims Procedure Under the Employee Retirement Income Security Act,” 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 March 27, 2020.
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
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-EBSA, 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
This ICR seeks to extend PRA authority for the “Employee Benefit Plan Claims Procedure Under the Employee Retirement Income Security Act” information collection. Employee Retirement Income Security Act (ERISA) Section 503 and accompanying regulations at 29 CFR 2560.503-1 require employee benefit plans to establish procedures for resolving benefit claims under the plan, including initial claims and appeal of denied claims. The regulation requires specific information to be disclosed at different stages of the claims process. It also requires claims denial notices to be provided within specific time-frames and to include specific information.
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 February 29, 2020. 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 while they undergo review. For additional substantive information about this ICR, see the related notice published in the
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,
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration
The OMB will consider all written comments that agency receives on or before March 27, 2020.
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
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OSHA, 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 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 Walking-Working Surfaces Standard (29 CFR part 1910, subpart D) information collection. OSHA is extending its general industry standards on walking-working surfaces (29 CFR part 1910, subpart D) to prevent and reduce workplace slips, trips, and falls, as well as other injuries and fatalities associated with walking-working surface hazards.
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
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 February 29, 2020. 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 while they undergo review. For additional substantive information about this ICR, see the related notice published in the
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,
44 U.S.C. 3507(a)(1)(D).
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the final decision to expand the scope of recognition for TUV SUD America, Inc., as a Nationally Recognized Testing Laboratory (NRTL).
The expansion of the scope of recognition becomes effective on February 26, 2020.
Information regarding this notice is available from the following sources:
OSHA hereby gives notice of the expansion of the scope of recognition of TUV SUD America, Inc. (TUVAM), as a NRTL. TUVAM's expansion covers the addition of one recognized testing and certification site to their NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products properly approved by the NRTL to meet OSHA standards that require testing and certification.
The agency processes applications by a NRTL for initial recognition, or for expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
TUVAM submitted an application, dated June 29, 2018 (OSHA-2007-0043-0027), to expand the recognition to include the addition of one recognized testing and certification site located at: TUV SUD Certification and Testing (China) Co. Ltd. Shanghai Branch 3-13, No. 151 Heng Tong Road, Shanghai 200070, P.R. China. OSHA staff performed a detailed analysis of the application and other pertinent information. OSHA staff also performed an on-site review of TUV SUD Shanghai's testing and certification facility on April 19-20, 2019 and recommended expansion of TUVAM's recognition to include this one site.
OSHA published the preliminary notice announcing TUVAM's expansion application in the
To obtain or review copies of all public documents pertaining to the TUVAM expansion application, go to
OSHA staff examined TUVAM's expansion application, conducted a detailed on-site assessment, and examined other pertinent information. Based on review of this evidence, OSHA finds that TUVAM meets the requirements of 29 CFR 1910.7 for expansion of recognition, subject to the specified limitation and conditions. OSHA, therefore, is proceeding with this final notice to grant TUVAM's scope of recognition. OSHA limits the expansion of TUVAM's recognition to include the site at Shanghai, China as listed above. OSHA's recognition of this site limits TUVAM to performing product testing and certifications only to the test standards for which the site has the proper capability and programs, and for test standards in TUVAM's scope of recognition. This limitation is consistent with the recognition that OSHA grants to other NRTLs that operate multiple sites.
In addition to those conditions already required by 29 CFR 1910.7, TUVAM also must abide by the following conditions of the recognition:
1. TUVAM must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major change in its operations as a NRTL, and provide details of the change(s);
2. TUVAM must meet all the terms of its recognition and comply with all OSHA policies pertaining to this recognition; and
3. TUVAM must continue to meet the requirements for recognition, including all previously published conditions on TUVAM's scope of recognition, in all areas for which it has recognition.
Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the recognition of TUVAM, subject to these limitations and conditions specified above.
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the Formaldehyde Standard.
Comments must be submitted (postmarked, sent, or received) by April 27, 2020.
Theda Kenney or Seleda Perryman, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The standard protects workers from the adverse health effects from occupational exposure to formaldehyde, including an itchy, runny, and stuffy
The standard specifies a number of collections of information. The following is a brief description of the collection of information contained in the Formaldehyde Standard. The standard requires employers to conduct worker exposure monitoring to determine workers' exposure to formaldehyde, notify workers of their formaldehyde exposures, provide medical surveillance to workers, provide examining physicians with specific information, ensure that workers receive a copy of their medical examination results, maintain workers' exposure monitoring and medical records for specific periods, and provide access to these records by the affected workers, and their authorized representatives.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend the approval of the collection of information (paperwork) requirements contained in the Formaldehyde Standard. The agency is requesting a 1,859 hour adjustment increase (from 238,435 hours to 240,294 burden hours). The agency is using fractions rather than decimals in its calculations, so this accounts for the change in the number of burden hours.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, (TTY (877) 889-5627).
Comments and submissions are posted without change at
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of QAI Laboratories, Ltd., for expansion of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before March 12, 2020.
Submit comments by any of the following methods:
Information regarding this notice is available from the following sources:
OSHA is providing notice that QAI Laboratories, Ltd. (QAI), is applying for expansion of recognition as a NRTL. QAI requests the addition of one test standard to the NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard; and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
QAI currently has two facilities (sites) recognized by OSHA for product testing and certification, with headquarters located at: QAI Laboratories, Ltd., 3980 North Fraser Way, Burnaby, BC, Canada, V5J 5K5. A complete list of QAI's scope of recognition is available at
QAI submitted an application, dated November 8, 2017 (OSHA-2013-0017-0012), to expand recognition to include one additional test standard. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.
Table 1 lists the appropriate test standard found in QAI's application to expand for testing and certification of products under the NRTL Program.
QAI submitted an acceptable application for expansion of the scope of recognition. OSHA's review of the application file, and pertinent documentation, indicates QAI can meet the requirements prescribed by 29 CFR 1910.7 for expanding recognition to include the addition of this one test standard for NRTL testing and certification listed above. This preliminary finding does not constitute an interim or temporary approval of QAI's application.
OSHA welcomes public comment as to whether QAI meets the requirements of 29 CFR 1910.7 for expansion of recognition as a NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. Commenters must submit the written request for an extension by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer period. OSHA may deny a request for an extension if the request is not adequately justified. To obtain or review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office at the above address. These materials also are available online at
OSHA staff will review all comments to the docket submitted in a timely manner. After addressing the issues
OSHA will publish a public notice of the final decision in the
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget (OMB) approval of the information collection requirement contained in the Aerial Lift Standard. Employers who modify an aerial lift for uses other than those provided by the manufacturer must obtain a certificate from the manufacturer or equivalent entity certifying that the modification is in conformance with applicable American National Standards Institute (ANSI) standards and the OSHA Standard, and the equipment is as safe as it was prior to the modification.
Comments must be submitted (postmarked, sent, or received) by April 27, 2020.
Theda Kenney or Seleda Perryman, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
The certification requirement specified in the Aerial Lifts Standard demonstrates that the manufacturer or an equally-qualified entity has assessed a modified aerial lift and found that it was safe for use by, or near, workers; and that it would provide workers with a level of protection at least equivalent to the protection afforded by the lift prior to modification.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
There are no program changes or adjustment associated with this ICR.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, TTY (877) 889-5627.
Comments and submissions are posted without change at
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for nominations to serve on NACOSH.
The Secretary of Labor requests nominations for membership on NACOSH.
Nominations for NACOSH membership must be submitted (postmarked, sent or received) by April 27, 2020.
You may submit nominations for NACOSH, which must include the docket number for this
The Secretary of Labor (Secretary) invites interested individuals to submit nominations for membership on NACOSH.
The Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 656) established NACOSH to advise, consult with, and make recommendations to the Secretary and the Secretary of Health and Human Services (HHS Secretary) on matters relating to the administration of the OSH Act. NACOSH is a continuing advisory committee of indefinite duration.
NACOSH operates in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2), implementing regulations (41 CFR part 102-3), the OSH Act, and OSHA's regulations on NACOSH (29 CFR part 1912a).
NACOSH is comprised of 12 members, all of whom the Secretary appoints. The terms of six NACOSH members expire on July 31, 2020, and the terms of the other six members expire on July 31, 2021. NACOSH members serve staggered terms, unless the member becomes unable to serve, resigns, ceases to be qualified to serve, or is removed by the Secretary. Accordingly, the Secretary will appoint six members to a two-year term. If a vacancy occurs before a term expires, the Secretary may appoint a new member who represents the same interest as the predecessor to serve the remainder of the unexpired term. The Committee shall meet at least two times a year (29 U.S.C. 656(a)(2)).
OSHA invites nominations for the following NACOSH positions:
• Two (2) public representatives;
• One (1) management representative;
• One (1) labor representative;
• One (1) occupational safety professional representative; and
• One (1) occupational health professional representative.
Pursuant to 29 CFR 1912a.2, the HHS Secretary designates both of the occupational health professional representatives and two of the four public representatives for the Secretary's consideration and appointment. OSHA will provide to HHS all nominations and supporting materials for the membership categories the HHS Secretary designates.
Any individual or organization may nominate one or more qualified persons for membership on NACOSH. Nominations must include:
• The nominee's name and contact information;
• The nominee's occupation or current position;
• The categories that the nominee is qualified to represent;
• The nominee's resume or curriculum vitae;
• Membership in relevant organizations and associations;
• A summary of the nominee's background, experience, and qualifications to serve on NACOSH;
• A list of articles or other documents the nominee has authored that indicates the nominee's experience in worker safety and health;
• A statement that the nominee has no conflicts of interest that would preclude membership on NACOSH; and
• A statement that the nominee is aware of the nomination and is willing to serve and regularly attend NACOSH meetings.
The Secretary will appoint NACOSH members on the basis of their experience and competence in the field of occupational safety and health (29 CFR 1912a.2). The information OSHA receives through this nomination process, in addition to other relevant sources of information, will assist the Secretary in appointing members to serve on NACOSH. In appointing NACOSH members, the Secretary will consider individuals nominated in response to this
The U.S. Department of Labor (Department) is committed to equal opportunity in the workplace and seeks a broad-based and diverse NACOSH membership. The Department will conduct a public records check of nominees before their appointment using publicly available sources.
You may submit nominations using one of the methods listed in the
OSHA posts submissions without change at
Electronic copies of this
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by 29 U.S.C. 656; 5 U.S.C. App. 2; 29 CFR part 1912a; 41 CFR part 102-3; and Secretary of Labor's Order No. 1-2012 (77 FR 3912 (1/25/2012)) and 04-2018 (6/1/2018).
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget (OMB) approval of the information collection requirements contained in the Crawler, Locomotive, and Truck Cranes Standard (29 CFR 1910.180).
Comments must be submitted (postmarked, sent, or received) by April 27, 2020.
Theda Kenney or Seleda Perryman, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, telephone: (202) 693-2222.
The Department of Labor, as part of a continuing effort to reduce paperwork and respondent (
The Standard specifies several paperwork requirements. The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of each of these requirements is to prevent workers from using unsafe cranes and ropes, thereby reducing their risk of death or serious injury caused by a crane or rope failure during material handling.
Paragraph 1910.180(d) specifies that employers must prepare a written record to certify that the monthly inspection of critical items in use on cranes (such as brakes, crane hooks, and ropes) has been performed. The certification record must include the inspection date, the signature of the person who conducted the inspection, and the serial number (or other identifier) of the inspected crane. Employers must keep the certificate readily available. The certification record provides employers, workers, and OSHA compliance officers with assurance that critical items on cranes have been inspected, and that the equipment is in good operating condition so that the crane and rope will not fail during material handling. These records also enable OSHA to determine that an employer is complying with the Standard.
This provision requires employers to make available written reports of load-rating tests showing test procedures and confirming the adequacy of repairs or alterations, and to make readily available any rerating test reports. These reports inform the employer, workers, and OSHA compliance officers of a crane's lifting limitations, and provide information to crane operators to prevent them from exceeding these limits and thereby causing crane failure.
Paragraph (g)(1) requires employers to thoroughly inspect any rope in use at least once a month. The authorized person conducting the inspection must observe any deterioration resulting in appreciable loss of original strength and determine whether or not the condition is hazardous. Before reusing a rope that has not been used for at least a month because the crane housing the rope is shut down or in storage, paragraph (g)(2)(ii) specifies that employers must have an appointed or authorized person inspect the rope for all types of deterioration. Employers must prepare a certification record for the inspections required by paragraphs (g)(1) and (g)(2)(ii). These certification records must include the inspection date, the signature of the person conducting the inspection, and the identifier for the inspected rope; paragraph (g)(1) states that employers must keep the certificates “on file where readily available,” while paragraph (g)(2)(ii) requires that certificates “be . . . kept readily available.” The certification records assure employers, workers, and OSHA that the inspected ropes are in good condition.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
There are no adjustments or program changes associated with the information collection requirements in the Standard. The agency is requesting to retain its current burden hours of 30,511. The agency has determined that information collected by the agency during an investigation is not subject to the PRA under 5 CFR 1320.4(a)(2). Therefore, OSHA takes no burden or cost for disclosure of records.
You may submit comments in response to this document as follows: (1) Electronically at
Due to security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350 TTY (877) 889-5627).
Comments and submissions are posted without change at
All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the final decision to expand the scope of recognition for TUV Rheinland of North America, Inc., as a Nationally Recognized Testing Laboratory (NRTL).
The expansion of the scope of recognition becomes effective on February 26, 2020.
Information regarding this notice is available from the following sources:
OSHA hereby gives notice of the expansion of the scope of recognition of TUV Rheinland of North America, Inc. (TUVRNA) as a NRTL. TUVRNA's expansion covers the addition of one recognized testing standard to the NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition, and is not a delegation or grant of government authority. As a result of recognition, employers may use products properly approved by the NRTL to meet OSHA standards that require testing and certification.
The agency processes applications by a NRTL for initial recognition, or for expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
TUVRNA submitted two applications, one dated March 30, 2016 (OSHA-2007-0042-0030) and another dated April 19, 2017 (OSHA-2007-0042-0031), to expand the scope of recognition to include the addition of four recognized testing and certification sites and the addition of two test standards to its scope of recognition. OSHA preliminarily determined that OSHA should grant the applications for expansion.
OSHA published a
OSHA published the preliminary notice announcing TUVRNA's expansion application, reflecting the correct title of the standard in the
To obtain or review copies of all public documents pertaining to TUVRNA's application, go to
OSHA staff examined TUVRNA's expansion application and examined other pertinent information. Based on a review of this evidence, OSHA finds that TUVRNA meets the requirements of 29 CFR 1910.7 for expansion of recognition, subject to the limitation and conditions listed below. OSHA, therefore, is proceeding with this final notice to grant expansion of TUVRNA's scope of recognition. OSHA limits the expansion of TUVRNA's scope of recognition to testing and certification of products for demonstration of conformance to the test standard listed in Table 1.
OSHA's recognition of any NRTL for a particular test standard is limited to equipment or materials for which OSHA standards require third-party testing and certification before using them in the workplace. Consequently, if a test standard also covers any products for which OSHA does not require such testing and certification, a NRTL's scope of recognition does not include these products.
In addition to those conditions already required by 29 CFR 1910.7, TUVRNA must abide by the following conditions of the recognition:
1. TUVRNA must inform OSHA as soon as possible, in writing, of any change of ownership, facilities, or key personnel, and of any major change in its operations as a NRTL, and provide details of the change(s);
2. TUVRNA must meet all the terms of the recognition and comply with all OSHA policies pertaining to this recognition; and
3. TUVRNA must continue to meet the requirements for recognition, including all previously published conditions on TUVRNA's scope of recognition, in all areas for which it has recognition.
Pursuant to the authority in 29 CFR 1910.7, OSHA hereby expands the scope of recognition of TUVRNA, subject to the limitation and conditions specified above.
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements contained in the Cranes and Derricks in Construction Standard.
Comments must be submitted (postmarked, sent, or received) by April 27, 2020.
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, telephone (202) 693-2222.
The Department of Labor, as part of a continuing effort to reduce paperwork and respondent (
The Cranes and Derricks standard's information collection requirements impose a duty on employers to produce and maintain records that implement controls and take other measures to protect workers from hazards related to cranes and derricks used in construction. Accordingly, construction businesses with workers who operate or work in the vicinity of cranes and derricks must have, as applicable, the following documents on file and available at the jobsite: Operator certifications, equipment ratings, employee training records, written authorizations from qualified individuals, and program qualification audits.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply—for example, by using automated or other technological information collection and transmission techniques.
The agency requests an overall adjustment burden hour increase of 15,750 hours (from 382,750 to 398,500 hours) and $156,112 in capital (operation and maintenance) costs (from $2,286,501 to $2,442,613). The burden hour increase is a result of both the agency's use of a different rounding methodology for calculating average burden hours, and the incorporation of previously-approved burden hours under OMB control number 1218-0270. For the same reason, and also due to inflation, the agency requests an adjustment increase in capital (operation and maintenance) costs.
Operator Qualification Final Rule (Non-Material Change)—A portion of the burden hour increase is an increase of 6,130 burden hours due to the incorporation of burden hours previously approved by OMB under OMB Control Number 1218-0270. This aspect of the ICR constitutes a non-material change as the collection of information associated with 29 CFR 1926.1427 remains the same as approved. For the same reason, a portion of the capital cost adjustment is due to the incorporation of a $571 decrease in costs previously approved by OMB under OMB Control Number 1218-0270. Under the currently approved OMB Control Number 1218-0261, the annual capital costs associated with 29 CFR 1926.1427 total $655. The final crane operator qualification final rule approved under OMB Control Number 1218-0270 estimates these costs be $84. This results in a net decrease for this ICR of $571.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350; TTY (877) 889-5627.
Comments and submissions are posted without change at
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of SGS North America, Inc., for expansion of the scope of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before March 12, 2020.
Submit comments by any of the following methods:
Information regarding this notice is available from the following sources:
OSHA is providing notice that SGS North America, Inc. (SGS), is applying for expansion of current recognition as a NRTL. SGS requests the addition of one recognized testing and certification site to the NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
SGS currently has nine facilities (sites) recognized by OSHA for product testing and certification, with headquarters located at: SGS North America, Inc., 620 Old Peachtree Road, Suwanee, Georgia 30024. A complete list of SGS sites recognized by OSHA is available at
SGS submitted an application, dated October 16, 2017 (OSHA-2006-0040-0052) to expand recognition to include the addition of one recognized testing and certification site located at: SGS Consumer and Retail France, 135, Rue Rene Descartes- CS 30584, 13857 Aix en Provence Cedex 3, France. OSHA staff performed an on-site review of SGS France's testing facilities on July 23-24, 2018, in which the assessors found some nonconformances with the requirements of 29 CFR 1910.7. SGS addressed these nonconformances satisfactorily, and OSHA has made a preliminary decision to approve the application.
SGS submitted an acceptable application for expansion of the scope of recognition. OSHA's review of the application files and detailed on-site assessments indicate that SGS can meet the requirements prescribed by 29 CFR 1910.7 for expanding recognition to include the addition of one recognized testing and certification site. This preliminary finding does not constitute an interim or temporary approval of SGS's application.
OSHA welcomes public comment as to whether SGS meets the requirements of 29 CFR 1910.7 for expansion of its recognition as a NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer time period. OSHA may deny a request for an extension if it is not adequately justified. To obtain or review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, listed in
OSHA staff will review all comments to the docket submitted in a timely manner. After addressing the issues raised by these comments, staff will make a recommendation to the Assistant Secretary for Occupational Safety and Health on whether to grant SGS's application for expansion of its scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7. OSHA will publish a public notice of this final decision in the
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend OMB approval of the information collection requirements contained in the Construction Standards on Fall Protection Systems Criteria and Practices, and Training Requirements.
Comments must be submitted (postmarked, sent, or received) by April 27, 2020.
Office of Construction Services, Directorate of Construction, OSHA, U.S. Department of Labor, telephone: (202) 693-2020.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
The Standards on Construction Fall Protection Systems Criteria and Practices (29 CFR 1926.502) and Training Requirements (29 CFR 1926.503) ensure that employers provide the required fall protection for their workers. Accordingly, these standards have the following paperwork requirements: Paragraphs (c)(4)(ii) and (k) of 29 CFR 1926.502, which specify
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend approval of the collection of information requirements contained in the Construction Standards on Fall Protection Systems Criteria and Practices (29 CFR 1926.502) and Training Requirements. OSHA is requesting a burden hour increase, from 425,844 to 471,232 hours, a difference of 45,388 hours. The increase is primarily a result of a higher estimate of employers who must comply with the collections of information as well as the way the agency is now calculating burden hours. The hours are calculated using fractions instead of decimals, as the agency believes that it is easier for the public to follow this methodology.
You may submit comments in response to this document as follows: (1) Electronically at
Due to security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693-2350, TTY (877) 889-5627.
Comments and submissions are posted without change at
All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the
Loren Sweatt, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Notice of availability; request for comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. This information collection request (ICR) seeks approval under the PRA for the continued use of the revised Provider Enrollment Form (Form OWCP-1168). The form requests profile information on providers that enroll in one or more of OWCP's benefit programs so its billing contractor can pay them for services rendered to beneficiaries using its automated bill processing system. In addition to the enrollment form information collection, the OWCP bill processing contractor currently collects electronic data interchange (EDI) information from the
Written comments must be submitted to the office listed in the
Anjanette Suggs, U.S. Department of Labor, 200 Constitution Ave. NW, Room S-3201, Washington, DC 20210, telephone/fax (202) 354-9660, Email
The Office of Workers' Compensation Programs (OWCP) is the agency responsible for administration of the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101
The Department of Labor is particularly interested in comments which:
* 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,
The Department of Labor seeks the approval of the extension of this currently approved information collection in order to carry out a wide range of automated bill “edits”, such as the identification of duplicate billings, the application of pertinent fee schedules, utilization review, and fraud and abuse detection. The profile information is also used to furnish detailed reports to providers on the status of previously submitted bills.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Office of Information and Regulatory Affairs, Office of Management and Budget, Executive Office of the President.
Notice of solicitation for proposals to revise portions of NAICS for 2022, solicitation of comments on the update of Statistical Policy Directive No. 8, and solicitation of comments on the elimination of Statistical Policy Directive No. 9.
The Office of Management and Budget OMB, through its Economic Classification Policy Committee (ECPC), is seeking comment on potential changes to the structure and content of the North American Industry Classification System (NAICS). There are seven parts in the
In soliciting comments about revising NAICS, the ECPC does not intend to
To ensure consideration of comments on this Notice, comments must be provided in writing no later than 60 days from the publication date of this notice. Because of delays in the receipt of regular mail related to security screening, respondents are encouraged to send comments electronically (see
Submit comments through
Comments submitted in response to this notice may be made available to the public and subject to disclosure under the Freedom of Information Act. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. If you send an email comment, your email address will be automatically captured and included as part of the comment that is placed in the public docket; however,
NAICS classification staff may be reached by email at
For information about this request for comments, contact Kerrie Leslie, Office of Management and Budget, 9215 New Executive Office Building, 725 17th St. NW, Washington, DC 20503, telephone (202) 395-1093.
Under the authority of the
NAICS is a system for classifying establishments (individual business locations) by type of economic activity. Its purposes are: (1) To facilitate the collection, tabulation, presentation, and analysis of data relating to establishments; and (2) to promote uniformity and comparability in the presentation and analysis of statistical data describing the North American economy. Federal statistical agencies use NAICS to collect and/or publish data by industry. It is also widely used by State agencies, trade associations, private businesses, and other organizations.
Mexico's
For these three countries, NAICS provides a consistent framework for the collection, tabulation, presentation, and analysis of industry statistics used by government policy analysts, by academics and researchers, by the business community, and by the public. Please note that NAICS is designed and maintained solely for statistical purposes to improve and keep current this Federal statistical standard. Consequently, although the classification may also be used for various nonstatistical purposes (
Four principles that guide NAICS development are:
(1) NAICS is erected on a production-oriented conceptual framework. This means that producing units that use the same or similar production processes are grouped together in NAICS.
(2) NAICS gives special attention to developing production-oriented classifications for (a) new and emerging industries, (b) service industries in general, and (c) industries engaged in the production of advanced technologies.
(3) Time series continuity is maintained to the extent possible.
(4) The system strives for compatibility with the two-digit level of the International Standard Industrial Classification of All Economic Activities (ISIC, Rev. 4) of the United Nations.
The ECPC is committed to maintaining the principles of NAICS as it develops further refinements. NAICS uses a hierarchical structure to classify establishments from the broadest level to the most detailed level using the following format:
To ensure the accuracy, timeliness, and relevance of the classification, NAICS is reviewed every five years to determine what, if any, changes are required. The 2022 review will be the fifth since OMB adopted NAICS in 1997. The ECPC recognizes the costs involved when implementing industry classification revisions in statistical programs and the costs for data users when there are disruptions in the availability of data. The ECPC also recognizes the economic, statistical, and policy implications that arise when the industry classification system does not identify and account for important economic developments. Balancing the costs of change against the potential for more accurate and relevant economic statistics requires significant input from data producers, data providers, and data users.
Over time, as the internet became an integral part of conducting business, two industries in NAICS were created (454111, Electronic Shopping, and 519130, Internet Publishing and Broadcasting and Web Search Portals) that delineate based on mode of delivery. As utilization of the internet evolved, the structure and coding of these industries in NAICS has also evolved. This leads the ECPC to request comments on the continued usefulness of the mode of delivery (online versus in store/print) as an industry delineation criterion in Sections III and IV.
NAICS is a dynamic industry classification. Every five years, the classification is reviewed to determine the need to identify new and emerging industries. The ECPC is soliciting public comments on the advisability of revising NAICS for new and emerging industries in 2022 and soliciting proposals for these new industries.
When developing proposals for new and emerging industries, please note that there are two separate economic classifications in the United States. NAICS, the industry classification, is the subject of this notice, while the North American Product Classification System (NAPCS) is a product classification. The NAPCS product system described below complements the NAICS industry system and provides an alternate way of classifying output.
NAICS classifies units according to their production function. NAICS industries group units undertaking similar activities using similar resources but does not necessarily group all similar products or outputs. NAPCS classifies the outputs of units, or in other words their products or transactions, within a demand-based conceptual framework. For example, the hypothetical product of a flu shot can be provided by a doctor's office, a hospital, or a walk-in clinic. Because these three units are classified to three different NAICS industries, data users who want information about all flu shots provided must be able to identify the individual products coming out of the units, which NAPCS is designed to do. Thus, in many cases, the need for specific statistical data can be met by aggregating product data across industries rather than by creating a new industry. This is particularly true with NAICS, which groups establishments into industries based on their primary production function. Proposals for new industries in NAICS for 2022 will be evaluated within the context of the industry classification system to determine the most appropriate resolution. For a detailed description of the NAPCS initiative, see the April 16, 1999,
Proposals for new industries will be evaluated using a variety of criteria. As previously mentioned, each proposal will be evaluated based on the application of the production function concept, its impact on comparability within North America and with other regions, and its impact on time series. For any proposals that cross three-country levels of agreement, negotiations with Canada and Mexico, our partners in NAICS, will also influence the ECPC's recommendations on those proposals. In addition, other criteria may affect recommendations for adoption. From a practical standpoint, industries must be of appropriate size. At the national level, this is generally not a major concern but there are a variety of statistical programs that produce industry data at the regional, State, metropolitan area, or even county or local level. Proposed industries must include a sufficient number of establishments so that Federal agencies can publish industry data without disclosing information about the operations of individual firms. The ability of government agencies to classify, collect, and publish data on the proposed basis will also be taken into account. Proposed changes must be such that they can be applied by agencies within their normal processing operations. Any recommendations for change forwarded by the ECPC for consideration will also take into account the cost of making the changes. These costs can be considerable and the
Proposals for new or revised industries should be consistent with the production-oriented conceptual framework incorporated into the principles of NAICS. When formulating proposals, please note that an industry classification system groups the economic activities of producing units, which means that the activities of similar producing units cannot be separated in the industry classification system.
Proposals must be in writing and include the following information:
(a) Specific economic activities to be covered by the proposed industry, the proposed industry's production processes, its specialized labor skills, and any unique materials used. This detail should demonstrate that the proposed industry will group establishments with similar production processes that are unique and clearly separable from the production processes of other industries.
(b) Relationship of the proposed industry to existing NAICS United States 2017 six-digit national industries.
(c) Documentation of the size and importance of the proposed industry in the U.S.
(d) Information about the proposed industry in Canada and Mexico if available.
Proposals will be collected, reviewed, and analyzed by the ECPC. As necessary, proposals for change will be negotiated with our partners in Canada and Mexico. When this process is complete, the OMB will publish a
The ECPC is soliciting comments on the current treatment of electronic shopping in NAICS and proposals for industry structure change in the Retail Trade sector. NAICS currently delineates Subsector 454, Nonstore Retailers, for establishments exclusively engaged in nonstore retail trade. Data users are increasingly interested in the growth of electronic shopping. However, NAICS Subsector 454 does not present a clear picture of all online retail trade activity because it does not include online sales of store retailers. The growth of e-commerce and the pervasive nature of electronic shopping creates confusion in classification and results in aggregate data that is hard to interpret and use for strategic business decisions, policy decisions, and analysis of changes to industry practices. NAICS Industry 45411, Electronic Shopping and Mail Order Houses, is defined as comprising units that sell exclusively from a nonstore format. This distinction is problematic based on changes in retail trade practices over the past decade. In short, the industry structure in retail trade does not necessarily result in all e-commerce retail revenue being included in nonstore retail. It also does not necessarily result in all store retail revenue being included in store retail.
Changes in the use of technology and the impacts on the usefulness of the resulting data require an evaluation of the industry structure in retail trade. Currently, store retail is delineated by broad product lines, such as groceries, apparel, hardware, etc. and by specialized stores versus general merchandise stores such as department stores. Store retail includes all transactions associated with the location—in-store customer transactions as well as online transactions credited to the store even if shipped directly from a distribution center to a customer.
The growth of online intermediaries performing functions such as storage, pick and pack, and billing on behalf of retailers creates additional problems. The expansion of these third party services using online platforms on behalf of stores further clouds the content and interpretation of data using the retail trade industry structure in NAICS broken out by store and nonstore.
Retailers perform an intermediary function to get a product from the producer to the consumer. It is no longer clear whether the store vs. nonstore distinction should be determinative for classification purposes. The increasing prevalence of omni-channel distribution and variations in reporting patterns result in significant ambiguity in the interpretation and use of the industry data.
Recent developments include pop up stores, delivery lockers, online ordering with in-store pick up, store inventory fulfillment of online orders, online orders in stores when an item is out of stock, and similar practices. Each of these cases presents ambiguity for classification of in store and nonstore data.
Any change to the current industry treatment will impact time series and potential uses of the resulting data presented using NAICS. While the sector level total will include all retail sales and will not change, the distribution of those sales at lower levels of aggregation will change. Changes to the content of store and nonstore retail will have an impact on industry metrics like same store sales on a year over year basis and total location sales. Changes could also affect retailers due to existing terms of leasing arrangements.
There are several possible changes to the retail trade structure to account for the blurring of modes of sale. The first is to redefine NAICS 45411 to include establishments primarily rather than exclusively engaged in online retail sales, with no further changes. This has the benefit of low disruption to the retail structure but will not necessarily clarify the content of the resulting data. Another option is to simply eliminate NAICS Industry 45411, and broadly use the NAICS industry structure for store retailers, maintaining separate industries for vending machine operators, fuel dealers, and other direct selling establishments. This approach would require a product or mode of sale inquiry below the industry level to identify and track online retail activity. Some programs that use NAICS could accommodate subindustry inquiries but major employment and productivity programs generally produce data at the industry level only.
NAICS 51931, internet Publishing and Broadcasting and Web Search Portals, includes a wide range of activities presenting content over the internet. This NAICS industry includes online publications, online video services, social media sites, and even data brokers. The classification is easy to implement but there is growing concern that distribution of content via the internet is no longer a useful industry classification delineation.
As more entities use various modes of content delivery including over the air, via wired telecommunications networks, and over wireless telecommunications networks, it is not clear that a separation of all activities exclusively providing content over the internet is appropriate. The rise of on-demand programming through apps, the move to cord cutting, and changes in the distribution mode of traditional newspapers and periodicals can result in data that is hard to interpret and can vary based on changes in business models. The ECPC is soliciting comments on the usefulness of NAICS
The ECPC is soliciting public comments at the request of OMB on the advisability of formally updating Statistical Policy Directive No. 8, Standard Industrial Classification of Establishments, and seeking comments on the proposed text of the update. The current Statistical Policy Directive text mandates the use of the Standard Industrial Classification Manual, 1972, for the classification of establishments by type of industrial activity. Statistical Policy Directive No. 8 incorporates amendments and further revisions of the SIC. OMB adopted NAICS as the replacement for the SIC for statistical purposes in 1997. (62 FR 17288-17337) The SIC has not been amended or revised since 1987. The text of Statistical Policy Directive No. 8 is available for review at:
The ECPC proposes to update the text of Statistical Policy Directive No. 8 and is soliciting public comments on the proposed language included below:
The North American Industry Classification System (NAICS) is to be used to classify reporting establishments by types of industrial activity in which they are engaged. Details are presented in the North American Industry Classification System, United States, issued by the Office of Management and Budget as amended and revised in the future. Revisions are considered every five years in calendar years ending with 2 and 7.
NAICS shall not be used in the administration of any regulatory, administrative, or tax program unless the Secretary (Administrator) has first determined that the use of such industry definition is appropriate to the implementation of the program's objectives.
If the term “North American Industry Classification System” (NAICS) is to be used in the operative text of the law or regulation to define industry (or trade or commerce), language similar to the following should be used to assure sufficient flexibility: “An industry or grouping of industries shall mean a North American Industry Classification System industry or grouping of industries as defined by the Office of Management and Budget subject to such modifications with respect to individual industries or groupings of industries as the Secretary (Administrator) may determine to be appropriate for the purpose of this Act (regulation).”. The use, interpretation, and application of NAICS for nonstatistical purposes is controlled by and defined by the agencies or regulations that use the statistical standard for those nonstatistical purposes.
The North American Industry Classification System, United States, manual includes titles and descriptions of the industries and an alphabetic index of illustrative activities classified to industries. It is available online at:
The ECPC proposes elimination of Statistical Policy Directive No. 9, Standard Industrial Classification of Enterprises. OMB presented the Enterprise Standard Industrial Classification of Enterprises in 1974. The classification is static and has not been updated or widely adopted over the past 45 years. NAICS United States does not include a similar variant for classification of enterprises. The current text of this policy directive is available for review at:
The ECPC is soliciting comments on the advisability of eliminating Statistical Policy Directive No. 9.
No significant errors or omissions have been identified in NAICS 2017. Any errors or omissions that are identified in NAICS in the future will be corrected and posted on the official NAICS website at
National Endowment for the Humanities, National Foundation on the Arts and the Humanities.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the National Council on the Humanities will meet to advise the Chairman of the National Endowment for the Humanities (NEH) with respect to policies, programs and procedures for carrying out his functions; to review applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965 and make recommendations thereon to the Chairman; and to consider gifts offered to NEH and make recommendations thereon to the Chairman.
The meeting will be held on Thursday, March 19, 2020, from 10:00 a.m. until 12:00 p.m., and Friday, March 20, 2020, from 9:00 a.m. until adjourned.
On March 19, 2020, the meeting will be held at George Washington's Mount Vernon, Fred W. Smith National Library, 3600 Mount Vernon Memorial Highway, Mount Vernon, Virginia 22121. On March 20, 2020, the meeting will be held at Constitution Center, 400 7th Street SW, Washington, DC 20506.
Elizabeth Voyatzis, Committee Management Officer, 400 7th Street SW, 4th Floor, Washington, DC 20506; (202) 606-8322;
The National Council on the Humanities is meeting pursuant to the National
Education Programs;
Federal/State Partnership;
Preservation and Access;
Public Programs; and
Research Programs.
The plenary session of the National Council on the Humanities will convene on March 20, 2020, at 9:00 a.m. in the Conference Center at Constitution Center. The agenda for the morning session (open to the public) will be as follows:
The remainder of the plenary session will be for consideration of specific applications and therefore will be closed to the public.
As identified above, portions of the meeting of the National Council on the Humanities will be closed to the public pursuant to sections 552b(c)(4), 552b(c)(6), and 552b(c)(9)(B) of Title 5 U.S.C., as amended. The closed sessions will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, and discussion of certain information, the premature disclosure of which could significantly frustrate implementation of proposed agency action. I have made this determination pursuant to the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated April 15, 2016.
Please note that individuals planning to attend the public sessions of the meeting are subject to security screening procedures. If you wish to attend any of the public sessions, please inform NEH as soon as possible by contacting Carina Nixon at (202) 606-8323 or
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “Medical Use of Byproduct Material.”
Submit comments by April 27, 2020. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2019-0164 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2019-0164 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “NRC Forms 366, 366A, and 366B, Licensee Event Report.”
Submit comments by March 27, 2020. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0104), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW Washington, DC 20503; email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
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The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “NRC Forms 366, 366A, and 366B, Licensee Event Report.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft interim staff guidance; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on its draft Interim Staff Guidance (ISG), “Environmental Considerations Associated with Micro-reactors.” The NRC staff is preparing for the environmental reviews of prospective design, license, and permit applications for advanced nuclear power reactors (advanced reactors), including micro-reactors. The purpose of this ISG is to modify existing guidance and provide supplemental guidance to assist the NRC staff in determining the scope and scale of environmental reviews of micro-reactor applications.
Submit comments by May 11, 2020. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Jack Cushing, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-1424, email:
Please refer to Docket ID NRC-2020-0051 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
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Please include Docket ID NRC-2020-0051 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The purpose of this ISG is to modify existing guidance and provide supplemental guidance to assist the NRC staff in determining the scope and scale of environmental reviews of micro-reactor applications. The guidance highlights unique considerations for micro-reactors in each resource area typically covered in the staff's environmental review. The ISG also offers guidance on identifying considerations and approaches to simplify and shorten the environmental reviews for micro-reactors relative to the environmental reviews that the NRC has previously performed for other nuclear facilities, such as large light-water reactors (LWRs). The ISG outlines what the NRC staff considers to be an appropriate scope and level of detail for the specific aspects of an environmental review needed to document a micro-reactor licensing action. A micro-reactor may have some, but not necessarily all, of the following characteristics:
• Occupies only a small area of land, disturbs only previously disturbed lands, or both.
• Uses zero or only small quantities of resources, such as water or fuel.
• Releases zero or only small quantities of emissions to the environment.
• Avoids environmentally sensitive areas such as wetlands and floodplains.
• Avoids areas with cultural, historic, or environmental justice significance.
• Avoids habitat for threatened or endangered species.
• Uses mitigation to reduce impacts.
• Involves only low levels of employment for both construction and operation.
• Uses simpler designs than those for large LWRs, with limited interfaces with the exterior environment.
While the ISG is designed to aid the NRC staff in developing a micro-reactor environmental impact statement, the staff recognizes the value of the guidance as a supplemental source of insight into the NRC's environmental review process that can inform the development of an applicant's environmental report. Applicants should scale their level of effort appropriately when preparing Environmental Reports (ERs), commensurate with the significance of the impact on the resource area being addressed.
The scope of the ISG is limited to environmental review considerations specific to micro-reactors, such as the following:
The NRC staff will continue to look for other opportunities to effectively streamline environmental reviews and work with prospective applicants to identify opportunities to streamline ERs and still meet the NRC's regulations.
The guidance in this draft ISG-029 clarifies how the NRC will approach environmental reviews for a micro-reactor application for combined license, early site permit, construction permit, operating license and limited work authorization. Issuance of this draft ISG, if finalized, would not constitute backfitting as defined in section 50.109 of title 10 of the
1. The draft ISG positions, if finalized, would not constitute backfitting or forward fitting or affect issue finality, inasmuch as the ISG would be internal guidance to NRC staff.
The ISG provides interim guidance to the staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in internal staff guidance, without further NRC action, are not matters that meet the definition of backfitting or forward fitting or affect the issue finality of a part 52 approval.
2. Current or future applicants are not-with limited exceptions not applicable here-within the scope of the backfitting and issue finality regulations and forward fitting policy.
Applicants are not, with certain exceptions, covered by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed below—were intended to apply to every NRC action which substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
The Commission's forward fitting policy generally does not apply when an applicant files an initial licensing action for a new facility. Nevertheless, the staff does not, at this time, intend to impose the positions represented in the draft ISG section (if finalized) in a manner that would constitute forward fitting. If, in the future, the staff seeks to impose a position in the draft ISG (if finalized) in a manner that constitutes forward fitting, then the staff would need to address the forward fitting criteria in Management Directive 8.4.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
On August 8, 2019, ICE Clear Credit LLC (“ICC”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
On October 4, 2019, the Commission designated a longer period of time for Commission action on the proposed rule change until November 26, 2019.
For the reasons discussed below, the Commission is approving the proposed rule change, as modified by Partial Amendment No. 1 and Partial Amendment No. 2 (hereinafter, “proposed rule change”) on an accelerated basis.
The proposed rule change is principally designed to address and manage the risks posed to ICC by potential non-default loss events, including investment losses, custodial losses with respect to margin and General Guaranty Fund contributions, and other losses resulting from general business risk, operational risk, or other non-default scenarios, to ensure that ICC has a mechanism to fully allocate any such losses and thereby enhance its ability to continue orderly clearing operations or otherwise maintain its viability as a going concern in the event that such losses are realized.
The proposed rule change would add to Rule 102 new definitions for “Investment Losses” and “Non-Default Losses” and revise the definition of “Custodial Losses.”
Under the proposed rule change, Investment Losses would be defined as losses incurred or suffered by ICC in connection with the default of the issuer of any investment of Margin or General Guaranty Fund assets by ICC, or the default of the counterparty to any repurchase, reverse repurchase contract, or similar transaction used to invest or reinvest such Margin or General Guaranty Fund assets. The proposed rule change would also include as an Investment Loss change in value of investments due to market movements, but would exclude a Custodial Loss, a negative yield or interest rate on an investment, and a loss on a security or non-cash asset posted by a Clearing Participant as a Margin or Guaranty Fund contribution.
Currently, Rule 406(g) defines Custodial Losses as those arising out of or relating to the holding, investment, or use of the Client Omnibus Margin Account or assets credited thereto from time to time, and specifies that ICC shall not be liable for any such losses except to the extent that they result from the gross negligence or willful misconduct of ICC, or from the investment of such assets by ICC in its discretion within the meaning of CFTC Rule 1.29(b). The proposed rule change would move the definition of Custodial Losses to Section 102 of ICC's Rules (Definitions) and revise it to mean losses of Margin or General Guaranty Fund assets (including declines in the value thereof) as a result of (i) the insolvency or failure of a Custodian or (ii) the embezzlement or theft of such assets by any person (other than ICC or its employees or representatives). The proposed rule change would define a Custodian for this purpose as a bank or trust company, central bank, central securities depository or other third party settlement system used by ICC for the deposit, holding, custody or transfer of cash or securities. Additionally, because the proposed rule change would create a stand-alone definition of Investment Losses, as described above, the revised definition of Custodial Losses would specify that Custodial Losses would not include Investment Losses.
The proposed rule change would define Non-Default Losses to include losses incurred or suffered by ICC that are neither Investment Losses nor Custodial Losses and arise in connection with an event other than a Clearing Participant's default. The definition thus would capture losses from general business or operational risk that do not constitute Custodial Losses or Investment Losses.
The proposed rule change would require that, with respect to an Investment Loss or Custodial Loss, ICC would first apply any available Investment Loss Resources or Custodial Loss Resources, as applicable. ICC would determine the amount of such resources based on its assessment of its potential exposure to investment losses under its investment policies and procedures, and the ICC Board would periodically conduct a risk-based assessment of the appropriate level of Investment Loss Resources.
Unlike Investment Losses and Custodial Losses, the proposed rule change would not define or place a cap on the specific ICC resources available to satisfy Non-Default Losses. Rather, proposed Rule 811(b) would require that Non-Default Losses, whatever the amount, be met from available ICC capital and other ICC assets (including available retained earnings, Investment Loss Resources, and Custodial Loss Resources). Thus, the proposed rule change would make ICC solely responsible for Non-Default Losses and would not allocate Non-Default Losses to Participants. Similarly, proposed Rule 811(b) would prohibit ICC from covering Non-Default Losses with ICC contributions to default resources or with Clearing Participant contributions to Margin, General Guaranty Fund, or Assessments.
Unlike Non-Default Losses, for which ICC would be solely responsible, in the event Investment Loss Resources are insufficient to cover an Investment Loss (an “Investment Loss Shortfall”), ICC would have the right, under proposed Rule 811(d), to allocate the Investment Loss Shortfall to Clearing Participants (including any Defaulting Participants). In that event, the Clearing Participants would be obligated to make a contribution (an “Investment Loss Contribution”), based on their pro rata share of the Investment Loss Shortfall, determined based on the methodology described below. Investment Loss Contributions could only be applied to Investment Loss Shortfalls (and not Custodial Loss Shortfalls). Under proposed Rule 811(e), a Clearing Participant's pro rata Investment Loss Contribution in respect of any event giving rise to an Investment Loss could not exceed its aggregate Initial Margin (both house and customer) and General Guaranty Fund contributions (its “Participant IM/GF Contribution”).
The method for determining a Clearing Participant's Investment Loss Contribution would depend on whether the Investment Loss occurred with respect to the House Origin Account or Client Origin Account. In the case of an Investment Loss in the House Origin Account, a Clearing Participant's Investment Loss Contribution would be based on the proportion of its Participant IM/GF Contribution as compared to the aggregate Participant IM/GF Contributions for all Participants. In the case of an Investment Loss in the Client Origin Account, only those Clearing Participants that are “Investing Participants” (as defined below) would be obligated to make an Investment Loss Contribution. Specifically, each Investing Participant would be obligated to pay an Investment Loss Contribution equal to its pro rata share of the Investment Loss Shortfall, determined based on the proportion of its Participant IM/GF Contribution to the aggregate Participant IM/GF Contributions of all Investing Participants, rather than the aggregate Participant IM/GF Contributions of all Clearing Participants (as would be the case in the House Origin Account). In the event of simultaneous Investment Losses for the House Origin Account and Client Origin Account, ICC would apply available Investment Loss Resources pro rata based on the amount of such Investment Losses. Thus, with respect to an Investment Loss Shortfall in the Client Origin Account, only those Clearing Participants that are Investing Participants would be required to contribute to the shortfall, rather than all Clearing Participants, and, moreover, each Investing Participant's pro rata share of the shortfall would be determined by the ratio of its Participant IM/GF Contribution to the aggregate Participant IM/GF Contributions of all Investing Participants.
Proposed Rule 402(k) would define “Investing Participant” as any Clearing Participant that (1) has instructed ICC to invest the cash Initial Margin in its Client Origin Account or (2) is deemed to have instructed ICC to invest the cash Initial Margin in its Client Origin Account. As provided in proposed Rule 402(k), a Clearing Participant would be required to instruct ICC whether ICC should invest cash Initial Margin. If instructed to invest, ICC would invest the cash in accordance with its Rules and investment policies procedures and applicable law. If instructed not to invest, ICC would hold the cash in a deposit account with a Custodian in accordance with ICC's policies and procedures. If a Clearing Participant does not provide an instruction, then (i) for U.S. dollar cash, the Clearing Participant would be deemed to have instructed ICC not to invest such cash, and (ii) for cash in other (non U.S. dollar) currencies, the Clearing Participant would be deemed to have instructed ICC to invest such cash. Thus, the term Investing Participant and therefore responsibility for an Investment Loss Shortfall in the Client Origin Account would apply to any Clearing Participant that instructs ICC to invest cash Initial Margin or that makes no instruction with respect to cash Initial Margin in currencies other than U.S. dollars.
Likewise, in the event that Custodial Loss Resources are insufficient to cover a Custodial Loss (a “Custodial Loss Shortfall”), ICC would have the right, under proposed Rule 811(f), to allocate the Custodial Loss Shortfall to all Clearing Participants (including any Defaulting Participants). The proposed rule change would give ICC the right to allocate Custodial Loss Shortfalls to Clearing Participants in the same fashion as ICC would allocate Investment Loss Shortfalls in the House Origin Account. In other words, each Clearing Participant would be obligated to make a contribution based on its pro rata share of the Custodial Loss Shortfall, determined based on the proportion of its Participant IM/GF Contribution as compared to the aggregate Participant IM/GF Contributions for all Participants. In the event of a Custodial Loss where the Custodian is a central bank, however, proposed Rule 811(f) would make the entire Custodial Loss as a Custodial Loss Shortfall subject to allocation to Clearing Participants (as opposed to first applying Custodial Loss Resources). As discussed in the Notice, ICC believes such an approach is justified by the remote nature of such a failure by a central bank and the preference among regulators and Clearing Participants for central bank custody.
Proposed Rule 811(l) would provide a “reverse waterfall” for allocation of any recoveries ICC obtains with respect to an Investment Loss or Custodial Loss
Proposed Rule 811(u) would contain a general disclaimer by ICC of losses resulting from the holding, deposit, custody, transfer, or investment of Margin, General Guaranty Fund contributions and Assessment Contributions, except as otherwise provided in Rule 811, and provided that Rule 811 would not limit any liability of ICC for its own gross negligence or willful misconduct. The proposed rule change would relatedly amend Rule 406 to remove an existing disclaimer for custodial losses, which would be superseded by the new provisions in the proposed rule change.
Proposed Rule 811 would also address certain procedures for notices to Participants of the use of Investment Loss Resources and Custodial Loss Resources and of required Loss Contributions in respect of Investment Losses and Custodial Losses. The proposed rule would also define the timing and manner of collection of Loss Contributions (including through offset against obligations of ICC to return margin or other assets), and for currency conversions as necessary. The proposed rule would specify that the requirement to make Loss Contributions would not reduce or otherwise affect other obligations of a Clearing Participant to make payments or deliveries to ICC under the Rules, or otherwise limit ICC's netting, setoff and other rights under the Rules. In particular, the proposed rule would separate obligations to make Loss Contributions from any obligation to make an Assessment Contribution and would specify that the limitations on Assessments under the Rules would not apply to liabilities for Loss Contributions. The proposed rule would similarly explain that use of the Loss Contribution procedures would also not be deemed to constitute an ICE Clear Credit Default under the Rules.
Finally, proposed Rule 811 would require ICC to disclose to Clearing Participants the amount of Custodial Loss Resources and Investment Loss Resources at least annually, and to notify Clearing Participants promptly following any changes in such amounts. Proposed Rule 811 would further specify that if such loss resources are applied as a result of a loss event, any replenishment of such resources by ICC would not reduce the amount of any Custodian Loss Shortfall or Investment Loss Shortfall (or resulting Loss Contributions) for that loss event. Finally, proposed Rule 811 would explicitly limit ICC's liability for Custodial Losses or Investment Losses to the amount of designated Custodial Loss Resources or Investment Loss Resources, as applicable, from time to time.
Section 19(b)(2)(C) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.
• Section 17A(b)(3)(D) of the Exchange Act requires, in part, that the rules of ICC provide for the equitable allocation of reasonable dues, fees, and other charges among its participants.
• Section 17A(b)(3)(F) of the Exchange Act requires, in part, that the rules of ICC be designed to promote the prompt and accurate clearance and settlement of securities transactions, to assure the safeguarding of securities and funds which are in the custody or control of ICC or for which it is responsible, and to protect investors and the public interest.
• Rule 17Ad-22(d)(3) under the Exchange Act requires that ICC establish, implement, maintain and enforce written policies and procedures reasonably designed to hold assets in a way that minimizes risk of loss or of delay in its access to them.
• Rule 17Ad-22(d)(8) under the Exchange act requires that ICC establish, implement, maintain and enforce written policies and procedures reasonably designed to have governance arrangements that are clear and transparent to fulfill the public interest requirements in Section 17A of the Act applicable to clearing agencies, to support the objectives of owners and participants, and to promote the effectiveness of ICC's risk management procedures.
After considering the entire record, and for the reasons given below, the Commission finds that the proposed rule change is consistent with Section 17A(b)(3)(F) and (D) of the Act
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of ICC be designed to promote the prompt and accurate clearance and settlement of securities transactions and, to the extent applicable, derivative agreements, contracts, and transactions, as well as to assure the safeguarding of securities and funds which are in the custody or control of ICC or for which it is responsible, and, in general, to protect investors and the public interest.
The Commission believes that the proposed rule change as a whole would help enhance ICC's ability to manage non-default losses generally, and more specifically to continue operating as a going concern in the event that it incurs potential operational, general business risk, or other non-default losses by, among other things, ensuring that ICC's Rules clearly and transparently identify, define and address specific categories of potential non-default risks that ICC will attempt to assess and cover. For example, ICC has assessed its potential exposure to Investment, Custodial, and Non-Default Losses—taking into account relevant components of the European Union capital requirements applicable to central counterparties, including the capital requirements for credit, counterparty, market, operational, and legal risks—to determine an initial measure of ICC's exposure to such risks, and has selected and set its level of Investment Loss Resources and Custodial Loss Resources to be commensurate with those measures.
The proposed rule change would also limit ICC's liability for Custodial Losses or Investment Losses in various ways. For example, the proposed rule change would specify that ICC's liability for Custodial and Investment Losses would be limited to the amount of the designated Custodial Loss Resources or Investment Loss Resources, respectively, and would clarify that ICC would not be liable for losses resulting from the holding, deposit, custody, transfer, or investment of Margin, General Guaranty Fund contributions, and Assessment Contributions, absent ICC's own gross negligence or willful misconduct. As such, the proposed rule change is designed to align the limitation of ICC's liability for Custodial and Investment Losses with the amount that ICC has determined is sufficient to fully cover its potential exposure to such losses.
As discussed in more detail in the Notice, ICC views potential loss scenarios where Investment or Custodial Losses could exceed applicable ICC resources (
Relatedly, the proposed rule change would enhance ICC's ability to replenish the resources available to satisfy Investment Losses and Custodial Losses in the event that such Losses materialize by putting in place a process for collecting and using Loss Contributions, defining the timing and manner of notices to Participants on the amount and use Loss Contributions, and defining the timing and manner of collection of Loss Contributions, which ICC could, in turn, use to satisfy Investment Loss Shortfalls and Custodial Loss Shortfalls. The proposed rule change also would define ICC's responsibility for, and the standard of care it would be required to utilize in, seeking recoveries from Investment Losses and Custodial Losses, and how ICC would allocate such recoveries.
Finally, the Commission believes that various aspects of the proposed rule change would help to ensure that Non-Default Losses, Investment Losses, and Custodial Losses would not affect ICC's ability to cover losses arising from the default of a Clearing Participant. In particular, the proposed rule change would: (i) Specify that Loss Contributions would not reduce or otherwise affect other obligations of a Clearing Participant to make payments or deliveries to ICC under the Rules, or otherwise limit ICC's netting, setoff and other rights under the Rules; (ii) separate a Clearing Participant's obligation to make Loss Contributions from any obligation to make an Assessment Contribution; (iii) specify that the limitations on Assessments under the Rules would not apply to liabilities for Loss Contributions; and (iv) clarify that action by ICC under proposed Rule 811 (specifying ICC's treatment of Non-Default Losses, Investment Losses, and Custodial Losses) would not be deemed to constitute an ICE Clear Credit Default under the Rules. The Commission believes that these provisions will help ensure that ICC's treatment and allocation of losses not arising from the default of a Clearing Participant do not hinder ICC's ability to cover and fully allocate losses arising from the default of one or more Clearing Participants.
Taken together, the Commission believes that the various components of the proposed rule change discussed above would enhance ICC's ability to manage the specific categories of general business risk, operational risk, and other non-default scenarios that ICC has identified and assessed, which in turn would reduce the risk that ICC would be unavailable to clear and settle security-based swap transactions and therefore is consistent with promoting prompt and accurate clearance and settlement of such transactions. Accordingly, the Commission finds that the proposed rule change is consistent with the requirements of Section 17A(b)(3)(F) of the Act.
Section 17A(b)(3)(D) of the Act requires that the rules of ICC provide for the equitable allocation of reasonable dues, fees, and other charges among its participants.
As noted, the purpose of the proposed rule change as a whole is to ensure that ICC has resources sufficient to recover operations and continue as a going concern in the vent that it incurs non-default losses. To that end, as discussed above, ICC has assessed its potential exposure to Investment, Custodial, and Non-Default Losses—taking into account relevant components of the European Union capital requirements applicable to central counterparties, including the capital requirements for credit, counterparty, market,
As discussed above, the proposed rule change would make ICC's Clearing Participants responsible for any amount of Investment Losses and Custodial Losses beyond ICC's contributions of $20 million and $32 million respectively, and solely responsible for any amount of Custodial Loss where the Custodian is a central bank. ICC views the potential risk of such Losses as remote, but intends this aspect of the proposed rule change as necessary to allow it to “plan for remote and unprecedented, but potentially extreme, types of loss event[s] . . . . ”
One commenter, the Futures Industry Association (“FIA”), submitted a comment letter generally expressing the belief that ICC's Clearing Participants should not be responsible for Investment Losses and Custodial Losses but rather ICC should ensure adequate capitalization to address all non-default losses, including Investment Losses and Custodial Losses.
ICC disputes the FIA's characterization and offers, as evidence, the regulations applicable to ICC as a registered clearing agency.
Based on our review of the record, the Commission does not agree with the FIA's characterization of Investment Losses and Custodial Losses as under the exclusive control and governance of ICC. As an initial matter, the Commission notes that ICC's ability to invest Margin and Guaranty Fund assets is subject to the requirements of Exchange Act Rule 17Ad-22(d)(3), which requires that ICC“[h]old assets in a manner that minimizes risk of loss or of delay in its access to them; and invest assets in instruments with minimal credit, market and liquidity risks.”
The FIA also states its belief that ICC has a duty of care to its clearing members and that ICC should not be able to pass through losses that are within the sole control of ICC.
Finally, the FIA states that it “is unclear . . . why ICC's own funds would not be used first” in case of a Custodial Loss resulting from a central bank acting as Custodian.
In the Commission's view, because ICC uses Initial Margin and Guaranty Fund assets to manage the risks associated with clearing security-based swap transactions, it is vital to the ongoing operation of ICC that ICC have the ability to quickly replenish any Margin and Guaranty Fund assets depleted by Investment Losses and Custodial Losses. Based on its review of the record, the Commission finds the specific allocation of the Investment Losses and Custodial Losses that could potentially result from the investment of such assets between ICC and its Clearing Participants to be reasonable because ICC would be assuming liability commensurate with the risks associated to it with investment of the Margin and Guaranty Fund assets. As discussed above, ICC has assessed its potential exposure to Investment, Custodial, and Non-Default Losses—taking into account relevant components of the European Union capital requirements applicable to central counterparties, including the capital requirements for credit, counterparty, market, operational, and legal risks—to determine an initial measure of ICC's exposure to such risks, and has selected and set its level of Investment Loss, Custodial Loss, and Non-Default Loss Resources to be commensurate with those measures.
Finally, as discussed above, the proposed rule change would allocate Investment Losses and Custodial Losses to Clearing Participants based on their participation in the investment of cash Initial Margin and their share of the total Initial Margin and Guaranty Fund assets. Moreover, each Clearing Participant's liability for an Investment Loss or Custodial Loss exceeding ICC's initial contributions could not exceed that Participant's aggregate contributions to the Guaranty Fund and the Initial Margin provided by the Participant, for both the House Origin Account and Client Origin Account. The Commission believes this allocation is equitable because it would distribute the losses based on each Clearing Participant's share of the Margin and Guaranty Fund assets that were depleted by the Investment Losses and Custodial Losses, and each Clearing Participant's liability could not exceed the total amount it contributed to Margin and the Guaranty Fund. Thus, the Commission believes this should help to ensure that Clearing Participants only contribute to the recovery from such losses in amounts commensurate with their contribution to Margin and Guaranty Fund assets in the first instance. Finally, in limiting the allocation of Investment Losses in the Client Origin Account to those Clearing Participants that have instructed, or are deemed to have instructed, ICC to invest cash Initial Margin, the Commission believes that the proposed rule change would help to ensure that only those Clearing Participants that have participated in an investment would contribute to the recovery of losses suffered on that investment.
For the reasons discussed above, the Commission believes that the proposed rule change is consistent with the requirement that ICC's rules provide for the equitable allocation of fees. Accordingly, the Commission finds that the proposed rule change is consistent with the requirements of Section 17A(b)(3)(D) of the Act.
Rule 17Ad-22(d)(3) requires that ICC establish, implement, maintain and enforce written policies and procedures reasonably designed to hold assets in a way that minimizes risk of loss or of delay in its access to them.
Further, in limiting the allocation of Investment Losses in the Client Origin Account to those Clearing Participants that have instructed, or are deemed to have instructed, ICC to invest cash Initial Margin in the Client Origin Account, the Commission believes that the proposed rule change would help to minimize risk of loss and of delay in access to cash Initial Margin by providing a means for Clearing Participants to opt out responsibility for Investment Losses with respect to the Client Origin Account.
Accordingly, the Commission finds that the proposed rule change is consistent with the requirements of Rule 17Ad-22(d)(3).
Rule 17Ad-22(d)(8) requires that ICC establish, implement, maintain and enforce written policies and procedures reasonably designed to have governance arrangements that are clear and transparent to fulfill the public interest requirements in Section 17A of the Act applicable to clearing agencies, to support the objectives of owners and participants, and to promote the effectiveness of ICC's risk management procedures.
The Commission believes that the proposed rule change, in providing that the ICC Board could modify the amount of Investment Loss Resources and Custodial Loss Resources from time to time, and specifying that such determination would be risk-based in light of ICC's potential exposure to such losses, would establish clear and transparent governance arrangements for determining the amount of such resources.
Accordingly, the Commission finds that the proposed rule change is consistent with the requirements of Rule 17Ad-22(d)(8).
The Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
For similar reasons as discussed above, the Commission finds that Partial Amendment No. 2 is designed to help assure the prompt and accurate clearance and settlement of securities transactions and the safeguarding of securities and funds which are in the custody or control of ICC, consistent with Section 17A(b)(3)(F) of the Act,
On the basis of the foregoing, the Commission finds that the proposed rule change, as modified by Partial Amendment No. 1 and Partial Amendment No. 2, is consistent with the requirements of the Act, and in particular, with the requirements of Section 17A(b)(3)(F) and (D) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
7:20 p.m. on Thursday, February 20, 2020.
The meeting was held at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting was closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries attended the closed meeting. Certain staff members who have an interest in the matter were also present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matter at the closed meeting. This notice is being made publicly available at the earliest practicable time.
The subject matter of the closed meeting consisted of the following topic: Other matter relating to enforcement proceedings.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
On November 27, 2019, Cboe BZX Exchange, Inc. (“Exchange” or “BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
This Amendment No. 3 to SR-CboeBZX-2019-102 amends and replaces in its entirety Amendment No. 2 to the proposal, submitted on February 13, 2020, which amended and replaced in its entirety Amendment No. 1 to the proposal, submitted on December 16, 2019, which amended and replaced in its entirety the proposal as originally submitted on November 27, 2019. The Exchange submits this Amendment No. 2 [sic] in order to clarify certain points and add additional details to the proposal.
The Exchange received approval to add new Rule 14.11(k) for the purpose of permitting the listing and trading of Managed Portfolio Shares, which are securities issued by an actively managed open-end management investment company,
The shares of the Fund (the “Shares”) will be issued by ActiveShares ETF Trust (the “Trust”), a statutory trust organized under the laws of the State of Maryland and registered with the Commission as an open-end management investment company.
Rule 14.11(k)(2)(D) provides that if the investment adviser to the Investment Company issuing Managed Portfolio Shares is registered as a broker-dealer or is affiliated with a broker-dealer, such investment adviser will erect and maintain a “fire wall” between the investment adviser and personnel of the broker-dealer or broker-dealer affiliate, as applicable, with respect to access to information concerning the composition of and/or changes to such Investment Company portfolio and/or the Creation Basket.
In the event (a) the Adviser or either Sub-Adviser becomes registered as a broker-dealer or becomes newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer or becomes affiliated with a broker-dealer, it will implement and maintain a fire wall with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio and/or Creation Basket.
Any person related to the Adviser, the Sub-Advisers, or the Trust who makes decisions pertaining to the Fund's portfolio composition or that has access to information regarding the Fund's portfolio or changes thereto or the Creation Basket will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding such portfolio or changes thereto and the Creation Basket.
Further, Rule 14.11(k)(2)(E) requires that any person or entity, including an AP Representative, custodian, Reporting Authority, distributor, or administrator, who has access to information regarding the Investment Company's portfolio composition or changes thereto or the Creation Basket, must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable Investment Company portfolio or changes thereto or the Creation Basket. Moreover, if any such person or entity is registered as a broker-dealer or affiliated with a broker-dealer, such person or entity will erect and maintain a “fire wall” between the person or entity and the broker-dealer with respect to access to information concerning the composition and/or changes to such Investment Company portfolio or Creation Basket. Any person or entity who has access to information regarding the Fund's portfolio composition or changes thereto or the Creation Basket will be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the portfolio composition or changes thereto or the Creation Basket.
The Fund's holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order and the holdings will be consistent with all requirements in the Exemptive Application and Exemptive Order.
The Fund seeks long-term capital appreciation. By employing fundamental research, in an effort to identify securities with attractive risk-adjusted returns, the Fund's portfolio management team constructs the portfolio on a bottom-up basis.
The Fund will not purchase any securities that are illiquid investments at the time of purchase and the Fund's holdings will be consistent with all requirements described in the Exemptive Application and Exemptive Order.
The Shares of the Fund will conform to the initial and continued listing criteria under Rule 14.11(k). The Fund's holdings will be limited to and consistent with what is permissible under the Exemptive Order.
The Fund's investments will be consistent with its investment objective and will not be used to enhance leverage.
Creations and redemptions of the Shares will occur as described in Rule 14.11(k). More specifically, in connection with the creation and redemption of Creation Units
Each AP Representative will be given, before the commencement of trading each Business Day (defined below), the Creation Basket (as described below) for that day. This information will permit an AP that has established a Confidential Account with an AP Representative, to instruct the AP Representative to buy and sell positions in the portfolio securities to permit creation and redemption of Creation Units and Redemption Units. Shares of the Fund will be issued and redeemed in Creation Units and Redemption Units of 5,000 or more Shares. The Fund will offer and redeem Creation Units and Redemption Units on a continuous basis at the net asset value (“NAV”) per share next determined after receipt of an order in proper form. The NAV per share of the Fund will be determined as of the close of regular trading on the Exchange on each day that the Exchange is open (a “Business Day”). The Fund will sell and redeem Creation Units and Redemption Units only on Business Days.
To keep costs low and permit the Fund to be as fully invested as possible, Shares will be purchased and redeemed in Creation Units and Redemption Units and generally on an in-kind basis. Accordingly, except where the purchase or redemption will include cash under the circumstances described in the Exemptive Application, APs will be required to purchase Creation Units by making an in-kind deposit of specified instruments (“Deposit Instruments”), and APs redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”) through the AP Representative in their Confidential Account.
The Fund will issue Shares through the Distributor on a continuous basis at NAV. The Exchange represents that the issuance of Shares will operate in a manner similar to that of other ETFs. The Fund will issue Shares only at the NAV per share next determined after an order in proper form is received.
In the case of a creation, the AP would enter an irrevocable creation order with the Fund and direct the AP Representative to purchase the Deposit Instruments. The AP Representative would then purchase the necessary securities in the Confidential Account. In purchasing the necessary securities, the AP Representative will use methods, such as breaking the transaction into multiple transactions and transacting in multiple marketplaces, to avoid revealing the composition of the Creation Basket. Once the Deposit Instruments have been acquired in the Confidential Account, the AP Representative would contribute the Deposit Instruments in-kind to the Fund.
The Distributor will furnish acknowledgements to those placing such orders that the orders have been accepted, but the Distributor may reject any order which is not submitted in proper form, as described in the Fund's prospectus or Statement of Additional Information (“SAI”). The NAV of the Fund is expected to be determined once each Business Day at a time determined by the Trust's Board of Trustees (“Board”), currently anticipated to be as of the close of the regular trading session on the Exchange (ordinarily 4:00 p.m. E.T.) (the “Valuation Time”). The Fund will establish a cut-off time (“Order Cut-Off Time”) for purchase orders in proper form. Such Order Cut-Off Time will be provided in the Registration Statement. To initiate a purchase of Shares, an AP must submit
Purchases of Shares will be settled in-kind and/or cash for an amount equal to the applicable NAV per share purchased plus applicable transaction fees.
The Shares may be redeemed to the Fund in Redemption Unit size or multiples thereof as described below. Redemption orders of Redemption Units must be placed by an AP (“AP Redemption Order”). The Fund will establish in its Registration Statement an Order Cut-Off Time for redemption orders of Redemption Units in proper form. Redemption Units of the Fund will be redeemable at their NAV per share next determined after receipt of a request for redemption by the Trust in the manner specified below before the Order Cut-Off Time. A transaction fee may also be imposed on redemption orders. To initiate an AP Redemption Order, an AP must submit to the Distributor an irrevocable order to redeem such Redemption Unit after the most recent prior Valuation Time, but not later than the Order Cut-Off Time.
In the case of a redemption, the AP would enter into an irrevocable redemption order, and then the Fund would instruct its custodian to deliver the Redemption Instruments to the appropriate Confidential Account. The Authorized Participant would direct the AP Representative on when that day to liquidate those securities. As with the purchase of securities, the AP Representative will use methods, such as breaking the transaction into multiple transactions and transacting in multiple marketplaces, to avoid revealing the composition of the Creation Basket.
Consistent with the provisions of Section 22(e) of the 1940 Act and Rule 22e-2 thereunder, the right to redeem will not be suspended, nor payment upon redemption delayed, except for: (1) Any period during which the Exchange is closed other than customary weekend and holiday closings, (2) any period during which trading on the Exchange is restricted, (3) any period during which an emergency exists as a result of which disposal by the Fund of securities owned by it is not reasonably practicable or it is not reasonably practicable for the Fund to determine its NAV, and (4) for such other periods as the Commission may by order permit for the protection of shareholders.
Redemptions will occur primarily in-kind, although redemption payments may also be made partly or wholly in cash.
The NAV per share of the Fund will be computed by dividing the value of the net assets of the Fund (
Exchange-traded instruments will be valued at market value, which will generally be determined using the last reported official closing or last trading price on the exchange or market on which the securities are primarily traded at the time of valuation. Other holdings of the Fund will generally be valued on the basis of independent pricing services, quotes obtained from brokers and dealers or price quotations or other equivalent indications of value provided by a third-party pricing service, reported net asset value, or at cost.
The Fund's website (
The Trust's SAI and the Fund's shareholder reports will be available free upon request from the Trust. These documents and forms may be viewed on-screen or downloaded from the Commission's website at
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. Quotation and last sale information for the Shares will be available via the Consolidated Tape Association (“CTA”) high-speed line. In addition, the VIIV, as defined in Rule 14.11(k)(3)(B) and as described further below, will be widely disseminated by
With respect to trading of the Shares, the ability of market participants to buy and sell Shares at prices near the VIIV is dependent upon their assessment that the VIIV is a reliable, indicative real-time value for the Fund's underlying holdings. Market participants are expected to accept the VIIV as a reliable, indicative real-time value because (1) the VIIV will be calculated and disseminated based on the Fund's actual portfolio holdings, (2) the securities in which the Fund plans to invest are generally highly liquid and actively traded and trade at the same time as the Fund and therefore generally have accurate real time pricing available, and (3) market participants will have a daily opportunity to evaluate whether the VIIV at or near the close of trading is indeed predictive of the actual NAV. The VIIV for the Fund will be disseminated by the Reporting Authority and/or one or more major market data vendors in one-second intervals during Regular Trading Hours. For purposes of the VIIV, securities held by the Fund will be valued throughout the day based on the mid-point between the disseminated current NBB and NBO. If the Adviser determines that a portfolio security does not have a readily available market quotation, that fact along with the identity and weighting of that security in the Fund's VIIV calculation will be publicly disclosed on the Fund's website.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund. The Exchange will halt trading in the Shares under the conditions specified in BZX Rule 11.18. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, including whether unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares also will be subject to Rule 14.11(k)(4)(B)(iii)(a) and (b), which set forth circumstances under which trading in the Shares of the Fund will be halted.
Specifically, Rule 14.11(k)(4)(B)(iii)(a) provides that the Exchange may consider all relevant factors in exercising its discretion to halt trading in a series of Managed Portfolio Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the series of Managed Portfolio Shares inadvisable. These may include: (i) The extent to which trading is not occurring in the securities and/or the financial instruments composing the portfolio; or (ii) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
Rule 14.11(k)(4)(B)(iii)(b) provides that, if the Exchange becomes aware that: (i) The VIIV of a series of Managed Portfolio Shares is not being calculated or disseminated in one second intervals, as required; (ii) the NAV with respect to a series of Managed Portfolio Shares is not disseminated to all market participants at the same time; (iii) the holdings of a series of Managed Portfolio Shares are not made available on at least a quarterly basis as required under the 1940 Act; or (iv) such holdings are not made available to all market participants at the same time, (except as otherwise permitted under the currently applicable exemptive order or no-action relief granted by the Commission or Commission staff to the Investment Company with respect to the series of Managed Portfolio Shares), it will halt trading in such series until such time as the VIIV, the NAV, or the holdings are available, as required.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the Exchange only during Regular Trading Hours as provided in Rule 14.11(k)(2)(B). The Exchange has appropriate rules in place to facilitate trading during all trading sessions in which the Shares will trade. As provided in BZX Rule 11.11(a), the minimum price variation for quoting and entry of orders in securities traded on the Exchange is $0.01, with the exception of securities that are priced less than $1.00, for which the minimum price variation for order entry is $0.0001.
The Shares will conform to the initial and continued listing criteria under Rule 14.11(k) as well as all terms in the Exemptive Order. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3 under the Act.
The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of the Shares through the Exchange will be subject to the Exchange's surveillance procedures for derivative products, including Managed Portfolio Shares. As part of these surveillance procedures and consistent with Rule 14.11(k)(2)(C), the Adviser will upon request make available to the Exchange and/or FINRA, on behalf of the Exchange, the daily portfolio holdings of the Fund. The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and the underlying exchange-traded instruments with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading such securities from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and the underlying exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its members in an Information Circular (“Circular”) of the special characteristics and risks associated with trading the Shares. Specifically, the Circular will discuss the following: (1) The procedures for purchases and redemptions of Shares; (2) BZX Rule 3.7, which imposes suitability obligations on Exchange members with respect to recommending transactions in the Shares to customers; (3) how information regarding the VIIV is disseminated; (4) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; (5) trading information; and (6) that the portfolio holdings will be disclosed within at least 60 days following the end of every fiscal quarter.
In addition, the Circular will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Circular will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Circular will also disclose that the NAV for the Shares will be calculated after 4:00 p.m., E.T. each trading day.
The Exchange believes that this proposal is consistent with Section 6(b) of the Act
The Exchange believes that this proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Fund would meet each of the rules relating to listing and trading of Managed Portfolio Shares and, to the extent that the Fund is not in compliance with such rules, the Exchange would either prevent the Fund from listing and trading if it hadn't started trading on the Exchange or would commence delisting procedures under Exchange Rule 14.12. More specifically, the Exchange will consider the suspension of trading in, and will commence delisting proceedings under Rule 14.12 for, the Fund under any of the following circumstances: (a) If, following the initial twelve-month period after commencement of trading on the Exchange, there are fewer than 50 beneficial holders of the Fund for 30 or more consecutive trading days; (b) if the Exchange has halted trading in the Fund because the VIIV is interrupted pursuant to Rule 14.11(k)(4)(B)(iii)(b) and such interruption persists past the trading day in which it occurred or is no longer available; (c) if the Exchange has halted trading in the Fund because the NAV with respect to such Fund is not disseminated to all market participants at the same time, the holdings of such Fund are not made available on at least a quarterly basis as required under the 1940 Act, or such holdings are not made available to all market participants at the same time pursuant to Rule 14.11(k)(4)(B)(iii)(b) and such issue persists past the trading day in which it occurred; (d) if the Exchange has halted trading in the Fund pursuant to Rule 14.11(k)(4)(B)(iii)(a) and such issue persists past the trading day in which it occurred; (e) if the Fund has failed to file any filings required by the Commission or if the Exchange is aware that the Fund is not in compliance with the conditions of any currently applicable exemptive order or no-action relief granted by the Commission or Commission staff with respect to the Fund; (f) if any of the continued listing requirements set forth in Rule 14.11(k) are not continuously maintained; (g) if any of the applicable Continued Listing Representations, as defined in Rule 14.11(a), for the Fund are not continuously met; or (h) if such other event shall occur or condition exists which, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable.
The Adviser is not registered as a broker-dealer or affiliated with a broker-dealer. Neither Sub-Adviser is registered as a broker-dealer, but each is affiliated with the Distributor, a broker-dealer, and has implemented and will maintain a “fire wall” with respect to such affiliate broker-dealer regarding access to information concerning the composition and/or changes to the Fund's portfolio and Creation Basket.
In the event (a) the Adviser or either Sub-Adviser becomes registered as a broker-dealer or becomes newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer or becomes affiliated with a broker-dealer, it will implement and maintain a fire wall with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio and/or Creation Basket. Any person related to the Adviser, the Sub-Advisers, or the Trust who makes decisions pertaining to the Fund's portfolio composition or that has access to information regarding the Fund's portfolio or changes thereto or the Creation Basket will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding such portfolio or changes thereto and the Creation Basket.
Further, Rule 14.11(k)(2)(E) requires that any person or entity, including an AP Representative, custodian, Reporting Authority, distributor, or administrator, who has access to information regarding the Investment Company's portfolio composition or changes thereto or the Creation Basket, must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable Investment Company portfolio or changes thereto or the Creation Basket. Moreover, if any such person or entity is registered as a broker-dealer or affiliated with a broker-dealer, such person or entity will erect and maintain a “fire wall” between the person or entity and the broker-dealer
The Exchange further believes that Rule 14.11(k) is designed to prevent fraudulent and manipulative acts and practices related to the listing and trading of Managed Portfolio Shares because it provides meaningful requirements about both the data that will be made publicly available about the Shares as well as the information that will only be available to certain parties and the controls on such information. Specifically, the Exchange believes that the requirements related to information protection enumerated under Rule 14.11(k)(2)(E) will act as a strong safeguard against misuse and improper dissemination of information related to the Fund's portfolio composition or changes thereto or the Creation Basket. The requirement that any person or entity implement procedures to prevent the use and dissemination of material nonpublic information regarding the portfolio or Creation Basket will act to prevent any individual or entity from sharing such information externally and the internal “fire wall” requirements applicable where an entity is a registered broker-dealer or affiliated with a broker-dealer will act to make sure that no entity will be able to misuse the data for their own purposes. As such, the Exchange believes that this proposal is designed to prevent fraudulent and manipulative acts and practices.
The Exchange further believes that the proposal is designed to prevent fraudulent and manipulative acts and practices related to the listing and trading of Managed Portfolio Shares and to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange would halt trading under certain circumstances under which trading in the Shares may be inadvisable. Specifically, trading in the Shares will be subject to Rule 14.11(k)(4)(B)(iii)(a), which provides that the Exchange may consider all relevant factors in exercising its discretion to halt trading in a series of Managed Portfolio Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the series of Managed Portfolio Shares inadvisable. These may include: (i) The extent to which trading is not occurring in the securities and/or the financial instruments composing the portfolio; or (ii) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
With respect to the proposed listing and trading of Shares of the Fund, the Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in Rule 14.11(k). The Fund's holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares and the underlying exchange-traded instruments with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading such instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and the underlying exchange-traded instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
With respect to trading of the Shares, the ability of market participants to buy and sell Shares at prices near the VIIV is dependent upon their assessment that the VIIV is a reliable, indicative real-time value for the Fund's underlying holdings. Market participants are expected to accept the VIIV as a reliable, indicative real-time value because (1) the VIIV will be calculated and disseminated based on the Fund's actual portfolio holdings, (2) the securities in which the Fund plans to invest are generally highly liquid and actively traded and trade at the same time as the Fund and therefore generally have accurate real time pricing available, and (3) market participants will have a daily opportunity to evaluate whether the VIIV at or near the close of trading is indeed predictive of the actual NAV.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation that the NAV per share of the Fund will be calculated daily and that the NAV will be made available to all market participants at the same time. Investors can also obtain the Fund's SAI, shareholder reports, Form N-CSR, and Form N-PORT. The Fund's SAI and shareholder reports will be available free upon request from the applicable fund, and those documents and the Form N-CSR and Form N-PORT may be viewed on-screen or downloaded from the Commission's website. In addition, with respect to the Fund, a large amount of information will be publicly available regarding the Fund and the Shares, thereby promoting market transparency. Quotation and last sale information for the Shares will be available via the CTA high-speed line. Information regarding the VIIV will be widely disseminated every second throughout Regular Trading Hours by the Reporting Authority and/or one or more major market data vendors. The website for the Fund will include a prospectus for the Fund that may be downloaded, and additional data relating to NAV and other applicable quantitative information, updated on a daily basis.
Moreover, prior to the commencement of trading, the Exchange will inform its members in a Circular of the special characteristics and risks associated with trading the Shares. The Exchange will halt trading in the Shares under the conditions specified in BZX Rule 11.18 or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Trading in the Shares will be subject to Rule 14.11(k)(4)(B)(iii)(a)
In addition, as noted above, investors will have ready access to the VIIV, and quotation and last sale information for the Shares. The Shares will conform to the initial and continued listing criteria under Rule 14.11(k). The Fund's holdings will be limited to and consistent with what is permissible under the Exemptive Order. The Fund's investments will be consistent with its investment objective and will not be used to enhance leverage.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the VIIV and quotation and last sale information for the Shares.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change, rather will facilitate the listing and trading of an actively-managed exchange-traded product that will enhance competition among both market participants and listing venues, to the benefit of investors and the marketplace.
The Exchange has neither solicited nor received written comments on the proposed rule change.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with the Act and rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that the proposal is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading in the Shares when a reasonable degree of certain pricing transparency cannot be assured. As such, the Commission believes the proposal is reasonably designed to maintain a fair and orderly market for trading the Shares. The Commission also finds that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act, which sets forth Congress's finding that it is in the public interest and appropriate for the protection of investors and the maintenance of fair and orderly markets to assure the availability to brokers, dealers, and investors of information with respect to quotations for, and transactions in, securities.
Specifically, the Commission notes that the Exchange has obtained a representation from the issuer that the NAV per Share of the Fund will be calculated daily and will be made available to all market participants at the same time.
The Commission also notes that the Exchange's rules regarding trading halts help to ensure the maintenance of fair and orderly markets for the Shares. Specifically, pursuant to its rules, the Exchange may consider all relevant factors in exercising its discretion to halt trading in the Shares, and will halt trading in the Shares under the conditions specified in BZX Rule 11.18. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, including (1) the extent to which trading is not occurring in the securities and/or the financial instruments composing the portfolio; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
The Commission also believes that the proposal is reasonably designed to help prevent fraudulent and manipulative acts and practices. The Exchange represents that it has a general policy prohibiting the distribution of material, non-public information by its employees. The Exchange states that the Adviser is not registered as a broker-dealer or affiliated with a broker-dealer. The Exchange states that neither Sub-Adviser is registered as a broker-dealer, but that each is affiliated with a broker-dealer and has implemented and will maintain a “fire wall” with respect to such broker-dealer affiliate regarding access to information concerning the composition of and/or changes to the Fund's portfolio and Creation Basket. Further, the Commission notes that any person related to the Fund's investment adviser or to the Trust who makes decisions pertaining to the Fund's portfolio composition or has access to information regarding the Fund's portfolio composition or changes thereto or the Creation Basket must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Moreover, prior to the commencement of trading, the Exchange will inform its members in a Circular of the special characteristics and risks associated with trading the Shares.
In support of this proposal, the Exchange represents that:
(1) The Shares will conform to the initial and continued listing criteria under BZX Rule 14.11(k).
(2) A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange.
(3) The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed, and may obtain trading information, regarding trading in the Shares, and the underlying exchange-traded instruments with other markets and other entities that are members of the ISG. In addition, the Exchange may obtain information regarding trading in the Shares and the underlying exchange-traded instruments from markets and other entities with which the Exchange has in place a comprehensive surveillance sharing agreement.
(4) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions in which the Shares trade.
(5) For initial and continued listing, the Fund will be in compliance with Rule 10A-3 under the Act.
(6) The Fund's holdings will conform to the permissible investments as set forth in the Exemptive Application and Exemptive Order, and investments made by the Fund will be consistent with all requirements set forth in the Exemptive Application and Exemptive Order. The Fund's investments will be consistent with its investment objective and will not be used to enhance leverage.
The Exchange represents that all statements and representations made in the filing regarding: (1) The description of the portfolio or reference assets; (2) limitations on portfolio holdings or reference assets; (3) dissemination and availability of the VIIV, reference assets, and intraday indicative values; and (4) the applicability of Exchange rules constitute continued listing requirements for listing the Shares on the Exchange. In addition, the Exchange represents that the issuer will advise the Exchange of any failure by the Fund to comply with the continued listing requirements and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will surveil for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under BZX Rule 14.12.
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment No. 3 is consistent with the Exchange 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 3, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 3 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 14, 2019, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade shares of the KFA Global Carbon ETF under NYSE Arca Rule 8.600-E (“Managed Fund Shares”). This Amendment No. 4 to SR-NYSEArca-2019-60 replaces SR-NYSEArca-2019-60 as originally filed and Amendments 1, 2 and 3 thereto and supersedes such filings in their entirety. The proposed change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the KFA Global Carbon ETF (“Fund”) under NYSE Arca Rule 8.600-E, which governs the listing and trading of Managed Fund Shares
The Shares will be offered by KraneShares Trust (the “Trust”), which was established as a Delaware statutory trust on February 3, 2012. The Trust is registered with the Securities and Exchange Commission (“SEC” or “Commission”) as an open-end management investment company.
Krane Funds Advisors, LLC (“Krane” or “Adviser”) will serve as the investment adviser to the Fund. Climate Finance Partners LLC (“Sub-Adviser”) will serve as the non-discretionary investment sub-adviser to the Fund. SEI Investments Global Funds Services (“Administrator”) will serve as administrator for the Fund.
SEI Investments Distribution Co. (“Distributor”), an affiliate of the Administrator, will serve as the Fund's distributor. Brown Brothers Harriman & Co. (“BBH”) will serve as custodian and transfer agent for the Fund.
Commentary .06 to Rule 8.600-E provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect and maintain a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the Fund will seek to provide a total return that, before fees and expenses, exceeds that of the IHS Markit Global Carbon Index (the “Index”) over a complete market cycle. The Index is designed to track the performance of liquid carbon credit futures contracts maturing within the next two calendar years.
More specifically, the Index is designed to track, and the Fund and the Fund's Subsidiary (as defined below), under normal market conditions,
According to the Registration Statement, although the Fund will seek to maintain exposure to Carbon Credit Futures that are the same as those included in the Index, the Fund and the Subsidiary will be actively managed and will not be required to replicate the performance of the Index or to invest in the specific instruments in the Index. For example, while the Fund may hold the same Carbon Credit Futures that are
As of the last annual rebalancing date, November 30, 2019, the weighting of Carbon Credit Futures in the Index was, and the weighting of Carbon Credit Futures in the Fund (including the Subsidiary (as defined below)) would have been, as follows:
Although, as described in more detail below, the Carbon Credit Futures in the Index are physically settled futures contracts, the Adviser does not anticipate that the Fund will hold Carbon Futures until expiry or take or make delivery of any physical commodities. Instead, the Adviser expects to roll each Carbon Future contract in the Fund's (or Subsidiary's (as defined below)) portfolio approximately two weeks prior to expiry. Thus, the Adviser expects to sell near to expiry Carbon Futures and reinvest the proceeds in new Carbon Futures to achieve the Fund's investment objective.
While the Fund, under normal market conditions, will invest primarily in Carbon Futures referenced above, the Fund may hold other securities and financial instruments, as described below.
Other than investing in Carbon Futures, the Fund, in seeking to achieve its investment objective, may invest up to 10% of its net assets in futures contracts that are not Carbon Futures, including interest rate futures and currency futures, and options on either Carbon Futures or other types of futures, including interest rate futures and currency futures.
The Fund may hold cash and cash equivalents.
The Fund will seek to exceed the performance of the Index through the active management of a portfolio of debt instruments (other than cash equivalents). Such debt instruments in which the Fund intends to invest are government securities and corporate or other non-government fixed-income securities with maturities of up to 12 months.
The fixed income securities in which the Fund invests will comply with the generic listing requirements of Commentary .01(b) to Rule 8.600-E.
The Fund may invest in exchange-traded funds (“ETFs”)
The Fund may hold investment company securities (including ETFs), consistent with the requirements of Section 12(d)(1) of the 1940 Act.
The Fund may invest up to 25% of its assets in a wholly-owned subsidiary (the “Subsidiary”). The Fund will utilize the Subsidiary for purposes of investing in the Carbon Futures and other futures contracts and options on futures contracts. The Subsidiary is a corporation operating under Cayman Islands law that is wholly-owned and controlled by the Fund. The Subsidiary is advised by the Adviser and sub-advised by the Sub-Adviser. The Subsidiary has the same investment objective as the Fund and will follow the same investment policies and restrictions as the Fund. Accordingly, the Subsidiary will only invest in the same instruments as the Fund may invest in, as discussed herein, including Carbon Futures, other futures contracts and options on futures contracts, and cash and cash equivalents as margin or collateral with respect to its Carbon Futures and other futures contracts and options on futures contracts investments.
The Fund will conduct foreign currency exchange transactions to the extent necessary to purchase Carbon Futures and convert proceeds of sales of Carbon Futures into U.S. Dollars. The Fund will conduct such foreign currency transactions either on a spot (
The Exchange submits this proposal in order to allow the Fund to hold listed derivatives, in particular Carbon Futures, in a manner that does not comply with Commentary .01(d)(2) to Rule 8.600-E, as described below. While the Fund may invest up to 10% of its net assets in futures contracts that are not Carbon Futures and options on either Carbon Futures or other types of futures, these investments will comply with Commentary .01(d)(2) to Rule 8.600-E. Otherwise, the Fund will comply with all other listing requirements of Commentary .01 to NYSE Arca Rule 8.600-E on an initial and continued listing basis.
According to the Registration Statement, the Index utilizes a rules-based methodology and is designed to track a portfolio of liquid, accessible carbon credit futures contracts with “physical delivery” of emission allowances issued under “cap and trade” regimes.
The Index is provided by Markit Indices GmbH (the “Index Provider”), a wholly-owned subsidiary of IHS Markit Ltd. The Index Provider is not affiliated with the Fund or Krane.
As of July 31, 2019, eligible components of the Index include emission allowances issued under the European Union Emissions Trading System (EUA),
The Fund's holdings in listed derivatives, including Carbon Futures, will comply with the requirements of Commentary .01(d)(1) to Rule 8.600-E.
The Adviser represents that, as of November 30, 2019, the initial universe and weighting of Carbon Credit Futures in the Index was as follows:
The Adviser further represents that the Index allocated each of the EUA and CCA allowances to two Carbon Credit Futures with different expiration dates. Accordingly, according to the Adviser, the Fund's allocations to EUA and CCA Carbon Credit Futures, on a continuous basis, would similarly be to at least four different contracts (
The Commodities Futures Trading Commission (the “CFTC”) has adopted certain requirements that subject registered investment companies and their advisers to regulation by the CFTC if a registered investment company invests more than a prescribed level of its net assets in CFTC-regulated futures, options and swaps, or if a registered investment company markets itself as providing investment exposure to such instruments. Due to the Fund's intended use of CFTC-regulated futures above the prescribed levels, it will be a “commodity pool” under the Commodity Exchange Act.
The Index is calculated on each full Securities Industry and Financial Markets Association (SIFMA) recommended U.S. trading day and the last calendar day of November. To convert the value of foreign carbon credit futures contracts to U.S. dollars, the Index utilizes foreign exchange spot rates from WM Reuters, using foreign exchange rates as of 4:00 p.m. London time for any day the Index is calculated. The Index was launched on July 25, 2019 with a base date of July 31, 2014 and a base value of 100. As of the most recent rebalancing date of November 30, 2018, the Index included five futures contracts with market capitalizations ranging from a minimum of $506 million for the RGGI program to a maximum of $29.463 billion for the EUA program. The average market capitalization of the futures of these programs was $10.916 billion. The largest Regional Components in the Index were Europe and the Americas (EUA (65%), CCA (25%) and RGGI (10%)).
The Fund's and the Subsidiary's investments, including derivatives, will be consistent with the Fund's investment objective and will not be used to seek performance that is the multiple or inverse multiple (
Investments in derivative instruments will be made in accordance with the Fund's investment objective and policies.
To limit the potential risk associated with such transactions, the Fund will enter into offsetting transactions or segregate or “earmark” assets determined to be liquid by the Adviser in accordance with procedures established by the Trust's Board of Trustees (the “Board”). In addition, the Fund has included appropriate risk disclosure in its offering documents, including leveraging risk. Leveraging risk is the risk that certain transactions of the Fund, including the Fund's use of derivatives, may give rise to leverage, causing the Fund to be more volatile than if it had not been leveraged.
The Adviser believes there will be minimal, if any, impact to the arbitrage mechanism as a result of the Fund's use of derivatives. The Adviser understands that market makers and participants should be able to value derivatives as long as the positions are disclosed with relevant information. The Adviser believes that the price at which Shares of the Fund trade will continue to be disciplined by arbitrage opportunities created by the ability to purchase or redeem Shares of the Fund at their net asset value (“NAV”), which should ensure that Shares of the Fund will not trade at a material discount or premium in relation to their NAV.
The Adviser does not believe there will be any significant impacts to the settlement or operational aspects of the Fund's arbitrage mechanism due to the use of derivatives.
According to the Registration Statement, the Trust will issue and redeem Shares of the Fund only in “Creation Units” on a continuous basis through the Distributor at the NAV next determined after receipt, on any Business Day (as defined below), of an order in proper form. A “Business Day”, as used herein, is any day on which the New York Stock Exchange (“NYSE”) is open for business. A Creation Unit is 50,000 Shares. The size of a Creation Unit is subject to change. Creation Units may be purchased and redeemed only by or through a Depository Trust Company (“DTC”) Participant that has entered into an Authorized Participant Agreement with the Distributor (an “Authorized Participant”).
The consideration for the purchase of Creation Units of the Fund will consist of an in-kind deposit of a designated portfolio of securities (or cash for all or any portion of such securities (“Deposit Cash”) (collectively, the “Deposit Securities”)) and the Cash Component, which is an amount equal to the difference between the aggregate NAV of a Creation Unit and the Deposit Securities. Together, the Deposit Securities and the Cash Component constitute the “Fund Deposit.”
The Custodian or the Administrator makes available through the National Securities Clearing Corporation (“NSCC”) on each Business Day, prior to the opening of the Exchange's Core Trading Session (normally 9:30 a.m., Eastern time (“E.T.”), the list of names and the required number of shares of each Deposit Security and Deposit Cash, as applicable, and the estimated amount of the Cash Component to be included in the current Fund Deposit. Such Fund Deposit is applicable, subject to any adjustments as described below, in order to effect purchases of Creation Units of the Fund until such time as the next-announced Fund Deposit is made available.
The Trust reserves the right to permit or require the substitution of an amount of cash to replace any Deposit Security under specified circumstances.
Cash purchases of Creation Units will be effected in essentially the same manner as in-kind purchases. The Authorized Participant will pay the cash equivalent of the Deposit Securities as Deposit Cash plus or minus the same Cash Component.
To initiate an order for a Creation Unit, an Authorized Participant must submit to the Distributor an irrevocable order in proper form to purchase Shares of the Fund on a Business Day generally before the time as of which that day's NAV is calculated. For a purchase order to be processed based on the NAV calculated on a particular Business Day, the purchase order must be received in proper form and accepted by the Trust prior to the time as of which the NAV is calculated (“Cutoff Time”).
The consideration paid by the Fund for the redemption of Creation Units consists of an in-kind basket of a designated portfolio of securities (or cash for all or any portion of such securities (“Redemption Cash”)) (collectively, the “Fund Securities”) and the Cash Component, which is an amount equal to the difference between the aggregate NAV of a Creation Unit and the Fund Securities. Together, the Fund Securities and the Cash Component constitute the “Fund Redemption.”
The Custodian or the Administrator will make available through NSCC on each Business Day, prior to the opening of the Exchange's Core Trading Session, the list of names and the number of shares of each Fund Security and Redemption Cash, as applicable, and the estimated amount of the Cash Component to be included in the current Fund Redemption. Such Fund Redemption will be applicable, subject to any adjustments as described below, for redemptions of Creation Units of the Fund until such time as the next-announced Fund Redemption is made available. The delivery of Fund Shares will be settled through the DTC system.
The identity and number of shares of the Fund Securities change pursuant to, among other matters, changes in the composition of the Fund's portfolio and as rebalancing adjustments and corporate action events are reflected from time to time. The composition of the Fund Securities may not be the same as the Deposit Securities.
The Trust reserves the right to permit or require the substitution of an amount of cash to replace any Redemption Security under circumstances specified in the Registration Statement.
Cash redemptions of Creation Units will be effected in essentially the same manner as in-kind redemptions. The Authorized Participant will receive the cash equivalent of the Fund Securities as Redemption Cash plus or minus the same Cash Component.
To initiate a redemption order for a Creation Unit, an Authorized Participant must submit to the Distributor an irrevocable order in proper form to redeem Shares of the Fund on a Business Day generally before the time as of which that day's NAV is calculated. For a redemption order to be processed based on the NAV calculated on a particular Business Day, the order must be received in proper form and accepted by the Trust prior to the time as of which the NAV is calculated (“Cutoff Time”). A redemption request, if accepted by the Trust, will be processed based on the NAV as of the next Cutoff Time.
The Exchange is submitting this proposed rule change because the portfolio for the Fund will not meet all of the “generic” listing requirements of Commentary .01 to NYSE Arca Rule 8.600-E applicable to the listing of Managed Fund Shares. Specifically, the Fund's portfolio will meet all such requirements except for those set forth in Commentary .01(a)(1) with respect to the Fund's investments in non-exchange-traded investment company securities and Commentary .01(d)(2) with respect to the Fund's and the Subsidiary's Investments in Carbon Futures.
In order to achieve its investment objective, under normal market conditions, the aggregate gross notional value of Carbon Futures may, in certain circumstances, approach 100% of the Fund (including gross notional values). As noted above, Commentary .01(d)(2) to Rule 8.600-E prohibits the Fund from holding listed derivatives based on any five or fewer underlying reference assets in excess of 65% of the weight of the portfolio (including gross notional exposures), and the aggregate gross notional value of listed derivatives based on any single underlying reference asset shall not exceed 30% of the weight of the portfolio (including gross notional exposures). The Exchange is proposing to allow the Fund to hold up to 100% of the weight of its portfolio
As discussed below, although the Fund will concentrate its holdings in listed derivatives that are based on a smaller number of reference assets than allowed under Commentary .01(d)(2), the Exchange believes that sufficient protections are in place to protect against market manipulation of the Shares and Carbon Futures and otherwise satisfy the purposes of Rule 8.600-E. The Exchange believes that Carbon Futures are not subject to the concentration risk that the rule is intended to address because of the liquidity of such futures.
The Exchange notes that the Commission has previously approved listing and trading on the Exchange under NYSE Arca Rule 8.204-E (Commodity Futures Trust Shares) of a trust with the investment objective of providing investment results that correspond generally to the performance of a basket of exchange-traded futures contracts for carbon equivalent emissions allowances issued under the European Union Emissions Trading Scheme (“EU ETS”).
The Fund may invest in shares of investment company securities (other than ETFs), which are equity securities. Therefore, to the extent the Fund invests in shares of other non-exchange-traded open-end management investment company securities, the Fund will not comply with the requirements of Commentary .01(a)(1)(A) through (E) to NYSE Arca Rule 8.600-E (U.S. Component Stocks) with respect to its equity securities holdings.
However, it is appropriate and in the public interest to approve listing and trading of Shares of the Fund notwithstanding that the Fund's holdings in such securities would not meet the requirements of Commentary .01(a)(1)(A) through (E) to Rule 8.600-E. Investments in other non-exchange-traded open-end management investment company securities will not exceed 20% of the total assets of the Fund. Such investments, which may include mutual funds that invest, for example, principally in fixed income securities, would be utilized to help the Fund meet its investment objective and to equitize cash in the short term. The Fund will invest in such securities only to the extent that those investments would be consistent with the requirements of Section 12(d)(1) of the 1940 Act and the rules thereunder.
The Exchange notes that Commentary .01(a)(1)(A) through (D) to Rule 8.600-E exclude certain “Derivative Securities Products” that are exchange-traded investment company securities, including Investment Company Units (as described in NYSE Arca Rule 5.2-E(j)(3)), Portfolio Depositary Receipts (as described in NYSE Arca Rule 8.100-E)) and Managed Fund Shares (as described in NYSE Arca Rule 8.600-E)).
Other than Commentary .01(a)(1) and (d)(2) to Rule 8.600-E, as described above, the Fund's portfolio will meet all other requirements of Rule 8.600-E.
The Fund's website (
On a daily basis, the Fund will disclose the information required under NYSE Arca Rule 8.600-E(c)(2) to the extent applicable. The website information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities, if applicable, required to be delivered in exchange for the Fund's Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the Exchange via the NSCC. The basket represents one Creation Unit of the Fund. Authorized Participants may refer to the basket composition file for information regarding financial instruments that may comprise the Fund's basket on a given day.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and the Fund's Forms N-CSR and N-CEN and Forms N-PORT, filed twice a year. The Fund's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N-PX, Form N-CEN and Form N-PORT (formerly Forms N-Q and N-SAR) may be viewed on-screen or downloaded from the Commission's website at
Intra-day and the closing settlement price information regarding carbon credit futures and other U.S. exchange-traded futures will be available from the exchange on which such instruments are traded and from major market data vendors. Spot currency prices and price information regarding currency forwards, debt instruments (other than cash equivalents) and cash equivalents also will be available from major market data vendors. Additionally, the Trade Reporting and Compliance Engine (“TRACE”) of the Financial Industry Regulatory Authority (“FINRA”) will be a source of price information for certain fixed income securities to the extent transactions in such securities are
Quote and last-sale information for Carbon Futures, futures that are not Carbon Futures and options on futures are widely disseminated through major market data vendors and from the exchange on which they trade. ICE Futures US, ICE Futures Europe and CME also provide delayed futures information on current and past trading sessions and market news on their respective websites.
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. Information regarding the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Price information regarding non-exchange-traded investment company securities is available from major market data vendors.
Quotation and last sale information for the Shares, ETFs and ETNs will be available via the Consolidated Tape Association (“CTA”) high-speed line. In addition, the Portfolio Indicative Value (“PIV”), as defined in NYSE Arca Rule 8.600-E(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m., E.T. in accordance with NYSE Arca Rule 7.34-E (Early, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Rule 7.6-E, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
With the exception of the requirements of Commentary .01(a)(1) with respect to the Fund's investments in non-exchange-traded investment company securities and Commentary .01(d)(2) (with respect to listed derivatives) to Rule 8.600-E as described above in “Application of Generic Listing Requirements,” the Shares of the Fund will conform to the initial and continued listing criteria under NYSE Arca Rule 8.600-E. Consistent with NYSE Arca Rule 8.600-E(d)(2)(B)(ii), the Adviser will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the Fund's portfolio. The Exchange represents that, for initial and continued listing, the Fund will be in compliance with Rule 10A-3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, or by regulatory staff of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, ETFs, ETNs, certain futures and options on futures with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in such securities and financial instruments from such markets and other entities.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio or reference assets, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange listing rules specified in this rule filing shall constitute continued listing
The issuer must notify the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Rule 5.5-E (m).
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Rule 9.2-E(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Early and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (4) how information regarding the PIV and the Disclosed Portfolio is disseminated; (5) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m., E.T. each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Rule 8.600-E notwithstanding that the Fund will not comply with the requirement in Commentary .01 (a)(1) and Commentary .01(d)(2) to Rule 8.600-E, as described herein.
The Exchange believes that sufficient protections are in place to protect against market manipulation of the Shares and Carbon Futures due to, among other matters (a) the liquidity and market capitalization of Carbon Futures, including EUA futures, CCA futures and RGGI futures,
The Exchange believes that these factors, coupled with the highly regulated EUA, CCA and RGGI markets, are sufficiently great to deter fraudulent [sic] and market manipulation. The Exchange also believes that such liquidity is sufficient to support the creation and redemption mechanism.
The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, ETFs, ETNs, certain futures and options on futures with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in such securities and financial instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's TRACE.
The Adviser and Sub-Adviser are not registered as broker-dealers, but the Adviser is affiliated with a broker-dealer, and has implemented and will maintain a fire wall with respect to its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio. The Sub-Adviser is not affiliated with a broker-dealer.
The Exchange notes that the Commission has previously approved listing and trading on the Exchange under NYSE Arca Rule 8.204-E (Commodity Futures Trust Shares) of a trust with the investment objective of providing investment results that correspond generally to the performance of carbon credit futures on EUAs.
The Exchange notes that the Commission has approved proposed rule changes by a national securities exchange to list and trade series of Managed Fund Shares that may hold listed derivatives on underlying reference assets that may not comply with provisions similar to those in Commentary .01(d)(2) to Rule 8.600-E.
As noted above, the Fund may invest in shares of non-exchange-traded investment company securities, which are equity securities. Therefore, to the extent the Fund invests in shares of non-exchange-traded open-end management investment company securities, the Fund will not comply with the requirements of Commentary .01(a)(1)(A) through (E) to NYSE Arca Rule 8.600-E (U.S. Component Stocks) with respect to its equity securities holdings.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information will be publicly available regarding the Fund and the Shares, thereby promoting market transparency. Intra-day and the closing settlement price information regarding carbon credit futures and other U.S. exchange-traded futures will be available from the exchange on which such instruments are traded and from major market data vendors. Spot currency prices and price information regarding currency forwards, debt instruments (other than cash equivalents) and cash equivalents also will be available from major market data vendors. Additionally, FINRA's TRACE will be a source of price information for certain fixed income securities to the extent transactions in such securities are reported to TRACE. Price information regarding U.S. government securities and other cash equivalents generally may be obtained from brokers and dealers who make markets in such securities or through nationally recognized pricing services through subscription agreements. The Index price is available via Bloomberg and Reuters. The Index methodology and constituent list is available via IHS Markit's website.
Quote and last-sale information for Carbon Futures, futures that are not Carbon Futures and options on futures are widely disseminated through major market data vendors and from the exchange on which they trade. ICE Futures US, ICE Futures Europe and CME also provide delayed futures information on current and past trading sessions and market news on their respective websites.
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. Information regarding the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Price information regarding non-exchange-traded investment company securities is available from major market data vendors.
Quotation and last sale information for the Shares, ETFs and ETNs will be available via the CTA. In addition, the PIV, as defined in NYSE Arca Rule 8.600-E(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Rule 7.12-E have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Trading in the Shares will be subject to NYSE Arca Rule 8.600-E (d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, NAV, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an actively-managed exchange-traded product that, through permitted use of an increased level of listed derivatives above that currently permitted by the generic listing requirements of Commentary .01(d)(2) to NYSE Arca Rule 8.600-E, and through investment in non-exchange-traded investment company securities (notwithstanding the requirements of Commentary .01(a)(1) to NYSE Arca Rule 8.600-E), will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 4, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
According to the Exchange, other than Commentary .01(a)(1) with respect to the Fund's investments in non-exchange-traded investment company securities and Commentary .01(d)(2) with respect to the Fund's and the Subsidiary's investments in Carbon Futures, as described above, the Fund's portfolio will meet all other requirements of NYSE Arca Rule 8.600-E, and the Shares of the Fund will conform to the initial and continued listing criteria under NYSE Arca Rule 8.600-E.
With respect to the Fund's investments in shares of non-exchange-traded open-end management investment company securities, which will not comply with Commentary .01(a)(1) to NYSE Arca Rule 8.600-E,
With respect to the Fund's investments in Carbon Futures, which may be up to 100% of the weight of the portfolio (as measured by gross notional exposure), and will not comply with Commentary .01(d)(2) to NYSE Arca Rule 8.600-E,
The Exchange represents that all statements and representations made in the filing regarding (a) the description of the portfolio or reference assets, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange listing rules specified in the filing shall constitute continued listing requirements for listing the Shares of the Fund on the Exchange. In addition, the issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor
This approval order is based on all of the Exchange's representations, including those set forth above and in Amendment No. 4. For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 4, is consistent with Section 6(b)(5) of the Act
Interested persons are invited to submit written views, data, and arguments concerning whether Amendment No. 4 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 4, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 4 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 5, 2019, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The proposed rule change was published for comment in the
Firms and individuals whose FINRA registration has been terminated, suspended, cancelled, or revoked, or who have been expelled from FINRA are generally referred to as “inactive,” and are no longer FINRA members or associated with a FINRA member, although they may continue to operate in another area of the financial services industry where FINRA registration is
Current FINRA arbitration rules provide options to a customer when dealing with those members or associated persons that are inactive either at the time the claim is filed or at the time of the award. For example, when a customer claimant first files an arbitration claim, FINRA alerts, by letter, the customer claimant if the respondent, whether a member or an associated person, is inactive. FINRA also informs the claimant that awards against such members or associated persons have a much higher incidence of non-payment and that FINRA has limited disciplinary leverage over inactive members or associated persons that fail to pay arbitration awards. Thus, the customer knows before pursuing the claim in arbitration that collection of an award may be more difficult. In addition, upon learning that the member or associated person is inactive, a customer may determine to amend his or her claim to add other respondents from whom the customer may be able to collect should the claim go to award.
FINRA is proposing to amend the Customer Code to expand further the options available to customers in situations where a firm becomes inactive during a pending arbitration, or where an associated person becomes inactive either before a claim is filed or during a pending arbitration. In particular, FINRA is proposing to amend the Code to allow customers to amend pleadings, postpone hearings, request default proceedings and receive a refund of filing fees if the customer withdraws the claim under these situations.
Currently, under FINRA Rule 12202 (Claims Against Inactive Members), a customer's claim against a firm whose membership is terminated, suspended, cancelled or revoked, or that has been expelled from FINRA, or that is otherwise defunct, is ineligible for arbitration unless the customer agrees in writing to arbitrate after the claim arises.
Accordingly, FINRA is proposing to amend FINRA Rule 12202 to expand a customer's option to withdraw a claim to situations where a member becomes inactive during a pending arbitration, or where an associated person becomes inactive either before a claim is filed or during a pending arbitration. Under the proposal, FINRA Rule 12202 would specify that a customer's claim against an associated person who is inactive at the time the claim is filed is ineligible for arbitration unless the customer agrees in writing to arbitrate after the claim arises. In addition, as amended Rule 12202 would specify that if a member or an associated person becomes inactive during a pending arbitration, FINRA would notify the customer of the status change, and provide the customer with 60 days to withdraw the claim(s) with or without prejudice.
FINRA believes that similar to the current rules and procedures relating to claims filed against inactive members, the proposed amendments would allow the customer to evaluate the likelihood of collecting on an award and make an informed decision whether to proceed in arbitration, to file the claim in court or to take no action, regardless of whether the customer signed a predispute arbitration agreement.
In addition, FINRA is proposing to amend FINRA Rule 12100 (Definitions) to add definitions of “inactive member” and “inactive associated person.” Consistent with current Rule 12202, FINRA proposed to define an “inactive member” as a member whose membership is terminated, suspended, cancelled or revoked, that has been expelled or barred
Under the proposed rule change, an “inactive associated person” would be defined as a person associated with a member whose registration is revoked, cancelled, or suspended, who has been expelled or barred from FINRA, or whose registration has been terminated for a minimum of 365 days.
FINRA believes the 365-day minimum termination requirement for associated persons would help ensure that enough time has elapsed to assume reasonably that the associated person has permanently left the securities industry. FINRA further believes that the proposed requirement would allow enough time for those associated persons who may have temporarily left the industry to return before the arbitration closes.
Currently, FINRA Rule 12309 (Amending Pleadings) limits a party's ability to amend a statement of claim, among other pleadings, after FINRA has appointed a panel to the case. Specifically, once FINRA appoints a panel to a case, a party can amend a pleading only if the arbitrators grant a party's motion to do so. Current FINRA Rule 12309 also provides that a party cannot add a new party to the case after arbitrator ranking lists are due to the Director of Arbitration until FINRA appoints the panel and the arbitrators grant a party's motion to add the new party.
FINRA believes that a customer should be able to change his or her litigation strategy during a pending case once the customer learns that a firm or an associated person has become inactive. Accordingly, FINRA is proposing to amend FINRA Rule 12309 to provide that if FINRA notifies a customer that a firm or an associated person has become inactive during a pending arbitration, the customer may amend a pleading, including adding a new party, within 60 days of receiving such notice.
Currently, FINRA Rule 12601 (Postponement of Hearings) addresses when a scheduled hearing date can be postponed. Specifically, the parties can agree to postpone a hearing. In addition, a hearing can be postponed by FINRA in extraordinary circumstances, by the arbitrators at their discretion, or by the arbitrators upon a party's motion.
FINRA is proposing to amend FINRA Rule 12601 to provide that if FINRA notifies a customer that a firm or an associated person has become inactive and the scheduled hearing date is within 60 days of the date the customer receives the notice from FINRA, the customer may postpone the hearing date. FINRA believes that since the proposed amendment would provide a customer with 60 days to determine how to proceed after FINRA notifies the customer of the status change to inactive, it would be appropriate to allow the customer to postpone a scheduled hearing that falls within that time period.
In addition, FINRA currently assesses postponement fees against the parties for each postponement agreed to by the parties, or granted upon the request of one or more parties. FINRA also charges an additional fee of $600 per arbitrator if a postponement takes place within 10 days of a scheduled hearing date. The additional $600 per arbitrator fee is paid to the arbitrators to compensate them for the late adjournment.
FINRA is proposing to amend FINRA Rule 12601 to provide that if FINRA notifies a customer that a firm or an associated person has become inactive and the scheduled hearing date is within 60 days of the date the customer receives the notice from FINRA, FINRA would not charge the customer a postponement fee or an additional fee of $600 per arbitrator if a customer chooses to postpone a scheduled hearing. FINRA also is proposing to amend FINRA Rule 12214 to provide that it would continue to pay the $600 honoraria to the arbitrators to compensate them for their time if a customer chooses to postpone a scheduled hearing within 10 days before it is scheduled because the customer learns that the firm or associated person has become inactive.
Currently, FINRA Rule 12801 (Default Proceedings) permits a claimant to request default proceedings against any respondent whose registration is terminated, revoked or suspended, and who failed to file an answer
As noted, the proposed amendments would define an inactive associated person as a person associated with a member whose registration is revoked, cancelled, or suspended, who has been expelled or barred from FINRA, or whose registration has been terminated for a minimum of 365 days. In the context of a default proceeding, FINRA believes that it would be appropriate to continue to allow a customer to request default proceedings against any terminated associated person who fails to answer a claim, regardless of how long the associated person has been terminated, consistent with the existing rule. Accordingly, FINRA is proposing to amend FINRA Rule 12801(a) to specify that a claimant may request a default proceeding against a terminated associated person who fails to file an answer within the time provided in the Code regardless of the number of days since termination.
Currently, FINRA Rule 12900 (Fees Due When a Claim is Filed) specifies that if a claim is settled or withdrawn more than 10 days before the date that the hearing is scheduled to begin, a party paying a filing fee will receive a partial refund of the filing fee. The rule also provides that FINRA will not refund any portion of the filing fee if a claim is settled or withdrawn within 10 days of the date that the hearing is scheduled to begin.
FINRA is proposing to amend FINRA Rule 12900 to provide that FINRA would refund a customer's full filing fee if FINRA notifies a customer that a firm or an associated person has become inactive during a pending arbitration, and the customer withdraws the case against all parties within 60 days of the notification. FINRA would refund the filing fee even if the customer withdraws the case within 10 days of the date that the hearing is scheduled to begin.
FINRA is proposing to amend the Code to update cross-references and make other non-substantive, technical changes to the rules impacted by the proposal.
The Commission received five comment letters on the proposed rule change.
Four commenters supported the proposed rule change as expanding the options available to customers in arbitration proceedings.
In addition, two commenters supported the proposed rule change because they believe it will help address unpaid arbitration awards.
Three commenters stated that the proposal does not address the problem of unpaid arbitration awards in a meaningful way and urged FINRA to take further action.
In response, FINRA stated that the proposed rule change is “intended to expand the options available to a customer when dealing with those members or associated persons that are inactive at the time a claim is filed or become inactive during a pending arbitration.”
In addition, FINRA stated it welcomes continued dialogue about “addressing the challenges of customer recovery across the financial services industry while directly informing the further enhancement of recovery in FINRA's forum[.]”
For these reasons, FINRA declined to amend the proposal in response to these commenters.
One commenter recommended FINRA expand the proposed rule change to apply not only to customer cases but also to intra-industry cases (
In response, FINRA acknowledged the commenter's concern but stated that at this time it has decided to focus its attention on customer cases and believes that “providing customers with more control over the arbitration process when faced with a respondent that likely will not be able to pay an award furthers FINRA's goal of investor protection.”
One commenter stated that the proposed rule change creates an imbalance between claimants and respondents. Specifically, the commenter expressed concern that because the proposal permits a claimant to amend its pleading to add a claim or party without the need for pre-approval by an arbitrator or panel, any newly added party would not be able to participate in the arbitrator panel selection process.
In response, FINRA stated that the proposal would not change the panel selection process under the current rules.
In addition, FINRA believes that “it is appropriate to remove the requirement that a customer file a motion to amend a pleading after panel appointment if a respondent member firm or associated person has become inactive to help avoid additional costs and delay to the customer.”
For these reasons, FINRA declined to amend the proposal in response to the commenter.
After careful review of the proposed rule change and the comment letters, the Commission finds that the proposal is consistent with the requirements of the Exchange Act and the rules and regulations thereunder that are applicable to a national securities association.
The Commission agrees with FINRA and those commenters that support the proposed rule change that it will provide customers with expanded options and flexibility to change case strategy if FINRA notifies them that a member or associated person has become inactive during a pending arbitration. Specifically, the proposed rule change would make several modifications to FINRA's rules to address the situation where a member firm becomes inactive during a pending arbitration, allowing customers to amend pleadings, postpone hearings, request default proceedings, and receive a refund of filing fees in that situation. In addition, the proposed rule change would expand customers' options with respect to claims brought against associated persons. Specifically, the proposal would provide customers the same options during a case against inactive associated persons as they would have in a case against inactive members. It would also clarify the default rule to include an inactive associated person who does not answer a claim, regardless of the number of days since termination. As noted above, the Commission agrees that, similar to the current rules and procedures relating to claims filed against inactive members, these proposed changes would allow customers to evaluate the likelihood of collecting on an award and make an informed decision whether to proceed in arbitration, to file the claim in court or to take no action, regardless of whether the customer signed a predispute arbitration agreement.
With respect to one commenter's concern that the proposed rule change does not apply to intra-industry cases,
Similarly, the Commission acknowledges commenter's concern that the proposed rule change will create an imbalance in the arbitration process between claimants and respondents by: (1) Denying a newly added respondent the opportunity to participate in the arbitrator panel selection process, and (2) precluding a newly added respondent the opportunity to object to being added.
The Commission acknowledges the commenter's concern that these are insufficient alternatives to respondents participating in the arbitrator selection process or having the ability to respond to a motion prior to being added as a party.
Finally, the Commission acknowledges several commenters' concerns that the proposed rule change will not, in their view, effectively resolve the problems related to unpaid arbitration awards and their proposed enhancements to the proposal, such as requiring a national recovery pool
Accordingly, because the proposed rule change will expand the options available to customers in pending arbitrations with claims against respondents who are unlikely to be able to pay, and promote consistency under FINRA's rules, the Commission believes that the proposed rule change is designed to protect investors and the public interest.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
LTSE proposes a rule change to establish an Annual Membership Fee.
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to establish an Annual Membership Fee for Members
However, if a Member is pending a voluntary termination of rights as a Member pursuant to Rule 2.190 prior to the date any Annual Membership Fee for a given year will be due (
The Annual Membership Fee for a firm that becomes a Member during a calendar year is proposed to be prorated (starting with the next calendar month) based upon the date the firm becomes a Member. For example, if a firm is approved as a Member on July 15, the prorated Annual Membership Fee assessed on such new Member would cover the months of August through December,
As an inducement for firms to become Members of the Exchange as the Exchange completes the build-out of its trading platform and finalizes compliance with the conditions set forth in the Exchange's approval order,
The Exchange does not presently contemplate proposing any application
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act
The Exchange believes that the proposed Annual Membership Fee is reasonable because it is a de minimis expense in relation to the costs of operating a broker-dealer that routes and executes orders across the trading venues that comprise the national market system. The Exchange is offering a novel trading model—the Very Simply Market (“VSM”)
The Exchange believes that the proposed Annual Membership Fee is not unfairly discriminatory because it would be assessed equally across all Members or firms that seek to become Members. The Exchange believes that the proposed Annual Membership Fee is not unfairly discriminatory because no broker-dealer is required to become a member of the Exchange.
The Exchange further believes that the proposed fees would be an equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities, and are not unfairly discriminatory. As the Commission noted in its Concept Release Concerning Self-Regulation:
The Commission to date has not issued detailed rules specifying proper funding levels of [self-regulatory organization (“SRO”)] regulatory programs, or how costs should be allocated among the various SRO constituencies. Rather, the Commission has examined the SROs to determine whether they are complying with their statutory responsibilities. This approach was developed in response to the diverse characteristics and roles of the various SROs and the markets they operate. The mechanics of SRO funding, including the amount of revenue that is spent on regulation and how that amount is allocated among various regulatory operations, is related to the type of market that an SRO is operating. . . . Thus, each SRO and its financial structure is, to a certain extent, unique. While this uniqueness can result in different levels of SRO funding across markets, it also is a reflection of one of the primary underpinnings of the National Market System. Specifically, by fostering an environment in which diverse markets with diverse business models compete within a unified National Market System, investors and market participants benefit.
The Exchange's proposed funding model relies primarily on issuers, who would pay listing fees,
Effective regulation is central to the proper functioning of the securities markets. Recognizing the importance of such efforts, Congress decided to require national securities exchanges to register with the Commission as self-regulatory organizations to carry out the purposes of the Act. The Exchange therefore believes that it is critical to ensure that regulation is appropriately funded. The Annual Membership Fee is expected to provide a source of funding towards the Exchange's total regulatory costs.
In accordance with Section 6(b)(8) of the Act,
The Exchange also believes that the proposed costs of membership will not impose an unnecessary or inappropriate burden on intermarket competition given the highly competitive market for execution venues, which includes not only the 13 other equities exchanges, but also off-exchange venues, including over 30 alternative trading systems trading NMS stocks.
Additionally, the Exchange believes that the Annual Membership Fee would not be an inappropriate burden on intramarket competition in particular, as it would be applied equally to all Members.
Written comments were neither solicited nor received.
The foregoing proposal has become effective pursuant to section 19(b)(3)(A) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend the Code of Arbitration Procedure for Customer Disputes (“Customer Code”) and the Code of Arbitration Procedure for Industry Disputes (“Industry Code”) (together, “Codes”) to apply minimum fees to requests for expungement of customer dispute information. The proposed rule change would amend Part IX (Fees and Awards) of the Codes to apply minimum filing fees to requests for expungement of customer dispute information, whether the request is made as part of the customer arbitration or the associated person files an expungement request in a separate arbitration (“straight-in request”).
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Information regarding customer disputes involving associated persons is contained in the Central Registration Depository (“CRD®”) system, the central licensing and registration system used by the U.S. securities industry and its regulators.
In general, the information in the CRD system is submitted by registered securities firms, brokers and regulatory authorities in response to questions on the uniform registration forms.
Pursuant to rules approved by the SEC, FINRA makes specified current CRD information publicly available through BrokerCheck®.
The regulatory framework governing the CRD system and BrokerCheck has long contemplated the possibility of expunging certain customer dispute
A broker can seek expungement of customer dispute information by going through the FINRA arbitration process or directly to court (without first going through arbitration). Regardless of whether expungement of customer dispute information is sought directly through a court or through arbitration, FINRA Rule 2080 (Obtaining an Order of Expungement of Customer Dispute Information from the Central Registration Depository (CRD) System), which was developed in close consultation with representatives of NASAA and state regulators, requires a broker-dealer firm or broker seeking expungement to obtain an order of a court of competent jurisdiction directing such expungement or confirming an award containing expungement relief. FINRA will expunge customer dispute information only after the court orders it to execute the expungement.
Under the Codes, if a customer files a claim in arbitration against an associated person and a firm, the customer is assessed a filing fee based on the claim amount.
Further, each member that is a party to an arbitration claim in which more than $25,000 is in dispute, or that is non-monetary or not specified, is required to pay a process fee based on the amount or nature of the claim. If an associated person of a member is a party, the member that employed the associated person at the time the dispute arose is charged the process fee.
If the parties do not settle the arbitration, the panel will hold at least one hearing to decide the customer arbitration and, at the conclusion of the hearing(s), issue an award. In the award, the panel will allocate the fees incurred by the parties during the arbitration, including each party's portion of the hearing session fees,
Currently, even if the associated person's answer to a customer's claim includes a request for expungement, the associated person is not assessed a filing fee. The member, having been assessed the surcharge and process fee for the customer arbitration, will not incur additional charges because of the expungement request. If the customer's claim closes by award after a hearing,
If the customer arbitration does not close by award after a hearing (
An associated person may request expungement by filing a straight-in request rather than requesting expungement during a customer arbitration. The straight-in request may be filed against a former or current firm or the customer.
As discussed above, an expungement request is a non-monetary claim and parties requesting expungement should pay the fees associated with such requests under the Codes. FINRA is concerned about practices to avoid fees applicable to expungement requests, particularly straight-in requests. For example, FINRA is aware that associated persons who file a straight-in request often add a small monetary claim (typically, one dollar) to the expungement request to reduce the fees assessed against the associated person and qualify for an arbitration heard by a single arbitrator.
Adding a small damages claim also changes the panel composition such that the straight-in request is heard by a single arbitrator rather than a three-person panel.
To help ensure that parties requesting expungement pay the fees intended for such requests under the Codes, that the fees charged when expungement is requested are more consistent, and that more expungement requests are heard by a three-person panel, FINRA is proposing to amend the Codes to apply a minimum filing fee for all expungement requests, irrespective of whether the request is made as part of the customer arbitration or the associated person files a straight-in request, or the requesting party adds a small damages claim. The proposed rule change would also apply a minimum process fee and member surcharge to straight-in requests, as well as a minimum hearing session fee to expungement-only hearings held after a customer arbitration
Under the proposed rule change, an associated person, or requesting party if it is an on-behalf-of request,
As discussed above, under the Codes, an expungement request that does not include a claim for damages is a non-monetary claim that is currently assessed a $1,575 filing fee and triggers a three-person panel. FINRA believes that all parties requesting expungement should pay the same minimum filing fee, and that parties should not be able to avoid the fee (or a three-person panel) simply by adding a small claim amount.
Accordingly, FINRA is proposing that the filing fee for non-monetary claims would be the minimum filing fee for all expungement requests, and that the minimum filing fee would apply to expungement requests in customer arbitrations as well as to straight-in requests.
The proposed minimum filing fee is also commensurate with the additional
The proposed rule change would apply a minimum member surcharge when an associated person files a straight-in request against either a customer or a member firm.
The proposed rule change would also provide that, for straight-in requests filed against a customer, each member that employed the associated person at the time the customer dispute arose would be assessed the member surcharge for a non-monetary claim under the Customer Code (currently $1,900).
If the associated person adds a separate claim for damages to the straight-in request against the customer or member firm, the member surcharge would be the non-monetary member surcharge or the applicable surcharge under the Codes, whichever is greater. Under the proposal, the surcharge would be due when the Director serves the Claim Notification Letter or the initial statement of claim under the Codes.
The proposed rule change would apply the hearing session fee for a non-monetary claim heard by three arbitrators to each hearing session in which the sole topic is the determination of a request for expungement relief.
The proposed rule change would apply a minimum process fee when an associated person files a straight-in request against either a customer or member firm. Under the proposed rule change, if an associated person files a straight-in request against a member firm, that firm would be assessed the process fee for a non-monetary claim under the Industry Code (currently $3,750).
The proposed rule change would also clarify that, for straight-in requests filed against a customer, the member that employed the associated person at the time the customer dispute arose would be assessed the process fee for a non-monetary claim under the Customer Code (currently $3,750).
If the associated person adds a separate claim for damages to the straight-in request against the customer or member firm, the process fee would be the non-monetary process fee or the applicable process fee under the Codes, whichever is greater.
FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The proposed rule change represents an equitable allocation of reasonable dues and fees against those who would either file or be a party to an expungement request, as is currently intended. As an expungement request is a separate relief request that an arbitrator or panel must consider and decide, the filing fees and related member and forum fees should reflect the general complexity of these requests, as well as the time and effort needed to administer, consider and decide them. In addition, the fees should apply consistently to all parties requesting expungement.
The proposed rule change will close gaps in the fee structure that have emerged in the existing expungement process, such as where parties add small dollar claims to their expungement requests to significantly lower the fees associated with expungement requests and to have expungement requests considered and decided by a single arbitrator rather than a three-person panel. The proposed rule change will help ensure that parties requesting expungement pay the fees intended for such requests under the Codes and that the fees charged when expungement is requested are more consistent, irrespective of whether the request is made as a straight-in request or during an arbitration, or whether damages are included in the request. The proposed rule change should also result in more expungement requests being heard by a three-person panel. A three-person panel will help ensure a complete factual record to support the arbitrators' decision, particularly in straight-in requests that often do not include customer participation and can be complex to resolve.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
FINRA has undertaken an economic impact assessment, as set forth below, to analyze the regulatory need for the proposed rule change, its potential economic impacts, including anticipated costs, benefits, and distributional and competitive effects, relative to the current baseline, and the alternatives FINRA considered in assessing how best to meet FINRA's regulatory objectives.
FINRA is aware that parties requesting expungement are not always paying the fees intended for such requests under the Codes, particularly for straight-in requests. In addition, the current fee schedules under the Codes do not ensure that costs to the forum for administering expungement requests are being allocated to the party or parties requesting expungement and, as applicable, the member firms that employ them. The proposed rule change would help ensure that the fees for expungement requests are assessed, and that the costs borne by the forum to administer expungement requests are allocated, as intended, to those requesting expungement under the Codes.
The economic baseline for the proposed rule change includes the provisions under the Codes that address the fees associated with expungement requests in FINRA arbitration. In general, the proposed rule change is expected to affect parties to an expungement request including associated persons and member firms. The proposed rule change may also affect other stakeholders of the forum, and users of customer dispute information contained in the CRD system and displayed through BrokerCheck.
The customer dispute information contained in the CRD system is submitted by registered securities firms and regulatory authorities in response to questions on the uniform registration forms.
Any such negative impact on the business and professional opportunities of associated persons may be appropriate and consistent with investor protection, such as when the customer dispute information has merit. Any such negative impact may be inappropriate, however, such as when the customer dispute information is factually impossible, clearly erroneous, or false. Regardless of the merit, associated persons have incentive to remove customer dispute information from the CRD system and its public display through BrokerCheck.
An associated person or party on behalf of an associated person typically begins the process to remove customer dispute information from the CRD system by filing an expungement request in FINRA arbitration. FINRA is able to identify 5,732 expungement requests of customer dispute information filed from January 2016 through June 2019. More than one expungement request can be filed in a single arbitration, and multiple expungement requests may relate to the same customer complaint if the complaint relates to more than one associated person.
Under the Codes, a claim for expungement is considered a non-monetary claim, generally requiring fees in the middle of the range of potential fees that are assessed based on claim amount, and triggering a three-person panel. As described in more detail above and depending on the method that a party uses to request expungement, however, associated persons and member firms can be assessed fees less than what is intended for non-monetary claims.
Among the 5,732 expungement requests, 2,618 requests (46 percent) were filed during a customer or industry arbitration and 3,114 requests (54 percent) were filed as a straight-in
In general, parties filed an increasing number of expungement requests over the sample period. For example, parties filed 1,400 requests in 2016, 1,708 requests in 2017, 1,936 requests in 2018, and 688 requests in the first half of 2019. Similarly, the proportion of straight-in requests also increased over the sample period. For example, associated persons filed 328 straight-in requests in 2016 (23 percent of 1,400), 846 requests in 2017 (50 percent of 1,708), and 1,371 requests in 2018 (71 percent of 1,936). In the first half of 2019, associated persons filed 569 straight-in requests (83 percent of 688).
The proportion of the straight-in requests where the associated person added a small monetary claim (of less than $1,000) has also increased over the sample period. For example, associated persons added a small monetary claim to 179 straight-in requests in 2016 (55 percent of 328), 569 requests in 2017 (67 percent of 846), 1,143 requests in 2018 (83 percent of 1,371), and 465 requests in the first half of 2019 (82 percent of 569). FINRA expects that absent this proposed rule change, associated persons who file straight-in requests will continue to add a small monetary claim to avoid the fees typically assessed for non-monetary claims.
The proposed rule change would apply the fees associated with non-monetary claims as minimum fees to expungement requests in FINRA arbitration. The fees associated with non-monetary claims are not new and would not change under the proposal. The fees would apply when parties file an expungement request during a customer arbitration, when parties file a rare expungement request during an industry arbitration, and when associated persons file a straight-in request.
Under the proposed rule change, a party that requests expungement during a customer or industry arbitration would be assessed a minimum filing fee of $1,575. Currently, parties requesting expungement during a customer or industry arbitration are not assessed a filing fee in connection with the expungement request.
In addition, under the proposed rule change, if the arbitrator or panel holds a separate expungement-only hearing to decide the expungement request after the customer's arbitration, then the party that requested expungement would be assessed a minimum hearing session fee of $1,125.
If an associated person files a straight-in request against a member firm, assuming one prehearing conference and one hearing session on the merits, then under the proposed rule change, the associated person and a member firm would be assessed minimum fees totaling $9,475. The associated person would be assessed a minimum filing fee of $1,575 and a minimum hearing session fee of $2,250 ($1,125 for the prehearing conference and $1,125 for the hearing session on the merits). In addition, the member firm would be assessed a minimum surcharge of $1,900 and a minimum process fee of $3,750.
In general, these fees are the same as those that are assessed today if the associated person does not add a small monetary claim to the straight-in request against a member firm. Associated persons and member firms, however, may incur significantly lower fees than what is intended for a straight-in request if the associated person adds a small monetary claim (of less than $1,000) to the request. Assuming one prehearing conference and one hearing session on the merits, an associated person and the member firm would currently be assessed fees totaling $300.
The fees associated with a small claim procedure are intended to ensure that the forum is economically feasible for claimants with small claims,
The minimum fees that would be assessed under the proposed rule change reflect the application of the fee schedule as intended for a non-monetary claim. The proposed rule change would help ensure that costs to the forum for administering expungement requests are allocated as intended to the party or parties requesting expungement and, as applicable, the member firms that employ them. The costs to the forum
In the aggregate, if parties requesting expungement had been assessed the fees applicable to non-monetary claims during the sample period, then a reasonable estimate for the additional fees that would have been assessed is $9.7 million. The $9.7 million includes $2.4 million for the expungement requests during a customer or industry arbitration,
The proposed rule change may affect some parties more so than others. Some parties, including associated persons and parties who request expungement relief on behalf of an unnamed person, may be more sensitive to the assessed fees under the proposed rule change or have monetary constraints that may inhibit them from filing an expungement request. They may determine that the cost of seeking expungement is higher than the anticipated benefit and, therefore, not seek expungement relief.
Associated persons who would have otherwise expunged customer dispute information that may have or not have merit may experience a loss of business and professional opportunities as a result of the information remaining on the CRD system and its display through BrokerCheck. The loss of business and professional opportunities by one associated person, however, may be the gain of another. Associated persons who may benefit in this regard include those who are less price sensitive and continue to seek expungement of customer dispute information, and associated persons who do not have similar disclosures.
The proposed rule change may also affect some member firms more so than others. In particular, the fees assessed under the proposed rule change may be more material for small firms or firms with fewer financial resources than for large firms or firms with additional financial resources.
Although the proposed rule change may affect some associated persons and member firms more so than others, the proposed rule change will not result in any burden on competition that is not necessary or appropriate. As discussed above, associated persons and member firms that are assessed significantly lower fees for an expungement request than what is intended under the Codes by adding a small damages claim to the expungement request experience a benefit in the form of an economic transfer. Any burden on competition as a result of this proposed rule change, therefore, relates to the removal of this unintended benefit.
Finally, the proposed rule change may have other, marginal, economic effects. For example, the proposed minimum filing fee would trigger a three-person panel for all straight-in requests. Associated persons would lose the ability to unilaterally decide the number of arbitrators who would consider and decide the request and, therefore, may increase the number of three-person panels. The impact of this change may be small because parties may still jointly agree to a single arbitrator.
The proposed rule change may also affect the customer dispute disclosures on the CRD system and their public display through BrokerCheck. The disclosures that would have otherwise been expunged would remain, and, depending on the merit of these disclosures, may affect the value of the information describing the conduct of associated persons. The merit of these disclosures is dependent on many factors which are difficult to predict. These factors include the incentive of parties to file an expungement request under the proposed rule change and the merit of the customer disputes that would have otherwise been sought expunged. The effect on the value of the customer dispute information is therefore uncertain.
An alternative to the proposed rule change includes the minimum filing fee of $1,425 for all expungement requests that was proposed in
FINRA published
In the
NASAA and Public Citizen supported the $1,425 minimum filing fee proposed in the
Other commenters, including associated persons, member firms, and their industry and legal representatives, opposed the proposed minimum filing fee. Some commenters viewed the proposed minimum filing fee as an additional fee that would be burdensome and discourage associated persons from pursing meritorious expungement claims.
In response to these comments, FINRA declines to reduce or eliminate the proposed minimum filing fee. The $1,425 filing fee proposed in the
Associated persons should not be able to reduce the filing fee from the $1,575 owed for a non-monetary claim to $50—and reduce the hearing session fee to $50, the member surcharge to $150 and the process fee to $0—merely by adding a small monetary claim, that the associated person often subsequently drops. Today, persons who do not add a small monetary claim to a straight-in request pay the $1,575 filing fee associated with non-monetary claims. The proposal would ensure that all associated persons who request expungement are subject to the same minimum filing fee.
In addition, as with other non-monetary claims, FINRA incurs costs to process expungement requests. Accordingly, expungement requests
FINRA also declines to revise its proposal to charge the minimum filing fee when expungement is requested, irrespective of whether the request is made in a straight-in request or in an underlying customer arbitration. FINRA notes that other claims for relief filed by associated persons during a customer arbitration (
With respect to the concern that the minimum filing fee may prevent associated persons from making meritorious expungement requests, FINRA notes that the Director may defer payment of all or part of an associated person's filing fee on a showing of financial hardship.
Some commenters proposed shifting the costs of requesting expungement away from associated persons. Braschi suggested that FINRA provide a mechanism to shift the cost of expungement to customers and their attorneys, and Wellington suggested that FINRA should impose little or no cost if the associated person receives an expungement recommendation. Liebrader stated that FINRA should have its members “shoulder more of the cost in this mandatory arbitration forum” and should “provide more relief for Claimants who for financial reasons have trouble coming up with the filing fees.”
FINRA believes that the costs associated with expungement requests should generally be shared by the associated persons who are the subject of the customer complaints and arbitrations, and the firms that employ them.
In the
Keesal stated that the proposed assessment of a member surcharge and process fee against the member firm that employed the associated person at the time of the “events giving rise to the dispute” required “further clarification.” Keesal stated that parties may contend that multiple events gave rise to a customer claim, during which the associated person may have been employed with multiple member firms.
After considering the comment, FINRA has modified the proposal to assess, consistent with the existing provisions of the Codes, member surcharge and process fees against the member firm that is a party or is named as a respondent, or “that employed the associated person at the time the customer dispute arose.”
SIFMA expressed concern that, when expungement is requested in a customer arbitration, the proposal would result in the assessment of a second member surcharge and process fee against a member firm “in addition to the fees charged in the underlying arbitration.” Keesal similarly stated that imposing these fees during the customer arbitration was not justified because the expense of “empaneling and compensating arbitrators and administering the case” should be handled as part of the customer arbitration.
FINRA notes that the proposal retains the existing requirement that firms may be assessed only one member surcharge and one process fee in a customer arbitration,
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than April 27, 2020. Individuals can obtain copies of the collection instruments by writing to the above email address.
II. SSA submitted the information collection below to OMB for clearance. Your comments regarding this information collection would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than March 27, 2020. Individuals can obtain
Under the CBSV process, the requesting party does not submit the consent forms of the number holders to SSA. SSA requires each requesting party to retain a valid consent form for each SSN verification request. The requesting party retains the consent forms in either electronic or paper format.
SSA added a strong audit component to ensure the integrity of the CBSV process. At the discretion of the agency, we require audits (called “compliance reviews”) with the requesting party paying all audit costs. Independent certified public accounts (CPAs) conduct these reviews to ensure compliance with all the terms and conditions of the party's agreement with SSA, including a review of the consent forms. CPAs conduct the reviews at the requesting party's place of business to ensure the integrity of the process. In addition, SSA reserves the right to perform unannounced onsite inspections of the entire process, including review of the technical systems that maintain the data and transaction records. The respondents to the CBSV collection are the participating companies; members of the public who consent to the SSN verification; and CPAs who provide compliance review services.
There is one CPA respondent conducting compliance reviews and preparing written reports of findings. The average burden per the 80 responses is 4,800 minutes for a total burden of 6,400 hours annually.
The public cost burden is dependent upon the number of companies and transactions per year. In FY 2019, 80
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to March 27, 2020.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Tiffany Parkes-Moscova who may be reached on (202) 632-6359 or
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
This collection of information is under the provisions of the Mutual Educational and Cultural Exchange Act, as amended, and the Exchange Visitor Program regulations (22 CFR part 62), as applicable. The information collected will be used by the Department to ascertain whether there are any issues that would affect the safety and well-being of exchange program participants.
The survey will be sent electronically via the Survey Monkey tool and responses collected electronically. If a respondent requests a paper version of the survey it will be provided.
Federal Aviation Administration (FAA), DOT.
Request for public comments.
Notice is being given that the FAA is considering a request from the City of Bangor, MA to Dispose of 3.97 Acres at Bangor International Airport, Bangor, ME. The land is no longer needed for aviation purposes and can be disposed without affecting future aviation needs of the airport. The revenue generated by the disposal will be placed into the airport's operation and maintenance fund.
Comments must be received on or before March 27, 2020.
You may send comments using any of the following methods:
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 1200 District Avenue, Burlington, Massachusetts, 01803. Telephone: 781-238-7618.
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA is considering a proposal to change 788.93 acres of airport land from aeronautical use to non-aeronautical use and to authorize the sale of airport property located at the former Sloulin Field International Airport, ISN, Williston, ND. The aforementioned land is not needed for aeronautical use because the new Williston Basin International Airport, XWA, Williston, ND is open and available for public aeronautical use. The former Williston Airport, ISN, site is located primarily on the west side of Highway 2, north of 26th Street in the City of Williston with 7.25 acres located on the east side of Highway 2. The airport's prior aeronautical use was for commercial and general aviation flying. The proposed non-aeronautical use of the property will be for commercial and residential development.
Comments must be received on or before March 27, 2020.
Documents are available for review by appointment at the FAA Dakota-Minnesota Airports District Office, Mark J. Holzer, FAA Program Manager, 2301 University Drive-Bldg. 23B, Bismarck, ND 58504 Telephone: 701-323-7393/Fax: 701-323-7399 and City of Williston, Williston Basin Intl. Airport, 14127 Jensen Ln. Suite 200, Williston, ND 58801, Telephone: 701-875-8594. Written comments on the Sponsor's request must be delivered or mailed to: Mark J. Holzer, FAA Program Manager, Federal Aviation Administration, Dakota-Minnesota Airports District Office, 2301 University Drive-Bldg. 23B, Bismarck, ND 58504 Telephone: 701-323-7393/Fax: 701-323-7399.
Mark J. Holzer, FAA Program Manager, Federal Aviation Administration, Dakota-Minnesota Airports Bismarck District Office, 2301 University Drive-Bldg. 23B, Bismarck, ND 58504 Telephone: 701-323-7393/Fax: 701-323-7399.
In accordance with section 47107(h) of Title 49, United States Code, this notice is required to be published in the
The former Sloulin Field International Airport was a commercial service airport located in the City of Williston, ND. The land was acquired by the City of Williston with funding assistance from the FAA AIP, ADAP and FAAP grant programs, ND State Aeronautics Commission and local funding. The City of Williston plans to make the former airport site available for development opportunities including combinations of multi-family residential, commercial and business uses as well as public and civic uses.
The disposition of proceeds from the sale of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
This notice announces that the FAA is considering the release of the subject airport property at the former Sloulin Field International Airport, ISN, Williston, ND from all federal land covenants, subject to a restrictive covenant related to the future use of certain “avoidance areas” within the released property. The FAA's Finding of No Significant Impact/Record of Decision for the Proposed Replacement Airport (XWA), dated September 22, 2015, requires such restrictive covenant as a condition for releasing the former airport property. Approval does not constitute a commitment by the FAA to financially assist in the disposal of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
Federal Transit Administration (FTA), United States Department of Transportation (USDOT).
Notice of Intent (NOI) to transfer federally assisted land or facility.
Federal public transportation law delegated to the Federal Transit Administrator permits the Administrator of the Federal Transit Administration (FTA) to authorize a recipient of FTA funds to transfer land or a facility to a public body for any public purpose with no further obligation to the Federal Government (the Government) if, among other things, no Federal agency is interested in acquiring the asset for Federal use. Accordingly, FTA is issuing this Notice to advise Federal agencies that the Northeast Illinois Regional Commuter Railroad Corporation a/k/a Metra (Metra) intends to transfer the land and building located at 16912 and 16901 Paulina Avenue (respectively), Hazel Crest, Illinois (Subject Property) to the Village of Hazel Crest (Village). Metra used the location as a Passenger Assistance Link building and storage facility from 1987 to the present (33 years). Metra has determined it no longer needs the building for public transportation purposes. The Village plans to utilize the Subject Property as a job training center for the community. The Village hopes to partner with another unit of government and/or local college to equip the building with technology equipment and staff it with career development experts who would be dedicated to helping career seekers find employment in the region.
Any Federal agency interested in acquiring the facility must notify the FTA Region V office of its interest no later than March 27, 2020.
Interested parties should notify the Regional Office by writing to Kelley Brookins, Regional Administrator, Federal Transit Administration, 200 West Adams Street, Suite 320, Chicago, IL 60606.
Kathryn Loster, Regional Counsel, (312) 353-3869.
Federal public transportation law (49 U.S.C. 5334(h)) provides guidance on the transfer of capital assets. Specifically, if a recipient of FTA assistance decides an asset acquired, at least in part, with assistance under 49 U.S.C. Chapter 53 is no longer needed for the purpose for which it was acquired, the Secretary of Transportation may authorize the recipient to transfer the asset to a local governmental authority to be used for a public purpose with no further obligation to the Government. 49 U.S.C. 5334(h)(1).
The FTA Administrator may authorize a transfer for a public purpose other than mass transportation only if the FTA Administrator decides:
(A) The asset will remain in public use for at least 5 years after the date the asset is transferred;
(B) There is no purpose eligible for assistance under Chapter 53 of title 49, United States Code, for which the asset should be used;
(C) The overall benefit of allowing the transfer is greater than the interest of the Government in liquidation and return of the financial interest of the Government in the asset, after considering fair market value and other factors; and
(D) Through an appropriate screening or survey process, that there is no interest in acquiring the asset for Government use if the asset is a facility or land.
This Notice implements the requirements of 49 U.S.C. 5334(h)(1)(D). Accordingly, FTA hereby provides notice of the availability of the Subject Property further described below. Any Federal agency interested in acquiring the Subject Property should promptly notify the FTA. If no Federal agency is interested in acquiring the Subject Property, FTA will make certain that the other requirements specified in 49 U.S.C. 5334(h)(1)(A) through (C) are met before permitting the asset to be transferred.
The Subject Property is recognized with the Parcel Identification Numbers 29-30-221-037 and 29-30-222-001. It is made up of a combined total of 0.81 acres and improved with a masonry structure that is approximately 17,000 square feet. The northern most section of the building is finished as office space, while the middle and southern sections are unfinished with exposed masonry walls. The middle section of the building has high ceilings and an overhead garage door.
The southern section has a more typical ceiling height and access doors. The building is structurally sound, but in poor condition primarily because the roof needs to be repaired. The Subject Property is currently vacant. Public utilities include gas, electric, and water.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following
Comments should be received on or before March 27, 2020 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained from Spencer W. Clark by emailing
Changes in tax regulations, tax administration, tax preparation methods, and taxpayer behavior continue to alter the amount and distribution of taxpayer burden. The purpose of these surveys is to gather data that will be used to update and expand the IRS Taxpayer Burden Model, a robust predictive model based on an improved burden estimation methodology. Information gathered by the surveys is not available in the administrative tax return data, so survey data are a critical input to the model. The survey data are not viewed discretely. Rather, because the data are used as inputs to the Taxpayer Burden Model, they provide an end-to-end, taxpayer facing view of compliance burden. The related behavioral studies further inform IRS's understanding of taxpayer behavior, inform burden model design, and help IRS improve processes and identify opportunities to reduce taxpayer burden.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before March 27, 2020 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained from Spencer W. Clark by emailing
AQEI enables Allocatees to report information to the CDFI Fund in a timely fashion. This information is also used by the Treasury Department (including both the CDFI Fund and the Internal Revenue Service (IRS)) to: (1) Monitor the issuance of QEIs to ensure that no Allocatee exceeds its allocation authority; (2) ensure that QEIs are issued within the timeframes required by the NMTC Program regulations and the legal agreements signed between the CDFI Fund and the Allocatee; and (3) assist with NMTC Program evaluation efforts.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before March 27, 2020 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained from Spencer W. Clark by emailing
National Labor Relations Board.
Final rule.
The National Labor Relations Board (NLRB or Board) has decided to issue this final rule for the purpose of carrying out the provisions of the National Labor Relations Act (NLRA or Act) by establishing the standard for determining whether two employers, as defined in Section 2(2) of the Act, are a joint employer under the NLRA. The Board believes that this rulemaking will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships, thereby enhancing labor-management stability, the promotion of which is one of the principal purposes of the Act. Under this final rule, an entity may be considered a joint employer of a separate employer's employees only if the two share or codetermine the employees' essential terms and conditions of employment, which are exclusively defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.
This rule has been classified as a major rule subject to Congressional review. The effective date is April 27, 2020. However, at the conclusion of the congressional review, if the effective date has been changed, the National Labor Relations Board will publish a document in the
Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001, (202) 273-2917 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD).
The NLRA sets forth a number of rights and responsibilities that apply to employers, employees, and labor organizations representing employees, in furtherance of the Act's overarching goals of promoting labor relations stability,
The NLRA also defines the terms “employer” and “employee.” Under Section 2(2) of the Act, “the term `employer' includes any person acting as an agent of an employer, directly or indirectly,” but excludes certain governmental entities, entities subject to the Railway Labor Act, or any labor organization (other than when acting as an employer). Section 2(3) of the Act provides that “the term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter [of the Act] explicitly states otherwise . . . but shall not include . . . any individual having the status of an independent contractor. . . .” 29 U.S.C. 152(3).
The text of the Act and its legislative history further establish that, in determining whether an employment relationship exists between a putative employer and employee, common-law agency principles are controlling. See,
The Act does not contain the term “joint employer,” much less define it. As discussed below, the Board and reviewing courts have developed that concept in adjudication over the years to address situations where two or more separate entities engaged in a business relationship jointly affect the terms and conditions of employment of a group of employees. See
As also discussed below, Section 6 of the Act authorizes the Board to “make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions of this subchapter.” See
The general formulation of the Board's joint-employer standard is firmly established. “The Board will find that two separate entities are joint employers of a single work force if the evidence shows that they `share or codetermine those matters governing the essential terms and conditions of employment.' ”
Notably, however, the Board has never attempted to comprehensively define the “essential terms and conditions of employment” that are relevant to the joint-employer inquiry, even though the standard itself inherently implies that it is control over those terms and conditions of employment that is determinative of joint-employer status.
As also described in the NPRM, the relevance to the joint-employer determination of an entity's contractually reserved but unexercised authority over another company's employees has also changed over time. See
The law governing joint-employer determinations changed significantly in August 2015. At that time, a divided Board overruled the then-extant precedent described above and substantially relaxed the requirements for proving a joint-employer relationship. Specifically, a Board majority held that it would no longer require proof that a putative joint employer has exercised any “direct and immediate” control over the essential terms and conditions of employment of another company's workers.
In December 2018, the United States Court of Appeals for the District of Columbia Circuit issued its decision on review of the Board's
The court, however, faulted the
On September 14, 2018, the Board issued its joint-employer NPRM. There, the Board proposed the following rule:
An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine.
In the NPRM, the Board acknowledged that the Agency historically has made major policy determinations through adjudication, but stated that it interpreted Section 6 of the Act as authorizing the Board to engage in this rulemaking, adding that rulemaking on the issue of determining joint-employer status was preferable to adjudication in order to provide clarity and stability to this area of the law. The NPRM further stated the Board's preliminary view, subject to potential revision in response to comments, that a joint-employer doctrine under which the duty to bargain is imposed only on entities that have played an active role in establishing essential terms and conditions of employment best serves the Act's purposes of promoting collective bargaining and minimizing industrial strife. The NPRM invited comments on these issues and, indeed, on all aspects of the proposed rule, including input from employees, unions, and employers regarding their experience in workplaces where multiple entities have some authority over the workplace.
The Board set an initial comment period of 60 days, with 7 additional days allotted for reply comments. Thereafter, the Board extended these deadlines three times, including an extension to allow interested parties to comment on the impact of the D.C. Circuit's decision in
In this section, we provide a summary overview of changes to the proposed rule.
The final rule, like the NPRM, provides that an entity is a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms or conditions of employment. However, the Board has modified the proposed rule to define “share or codetermine” as the possession and exercise of “such substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningfully affects matters relating to the employment relationship with those employees.” The Board has also modified the proposed rule to factor indirect control over essential terms or conditions of employment, contractually reserved control over essential terms or conditions of employment, and control over mandatory subjects of bargaining other than essential terms and conditions of employment into the joint-employer analysis, “but only to the extent [they] supplement[] and reinforce[] evidence of the entity's possession or exercise of direct and immediate control over a particular essential term and condition of employment.”
Consistent with these provisions, evidence of contractually reserved control over an essential term or condition of employment is probative for the purpose of determining whether an entity possesses or exercises direct and immediate control over that essential term or condition. Plainly, the fact that an entity has a contractually reserved right to control an essential term or condition is probative of whether it possesses control over that term. Such evidence may also be probative of whether the control possessed and exercised is “substantial,” as that term is defined in the final rule (see Sec. II.E, “ `Substantial' direct and immediate control”, infra). Similarly, evidence of indirect control over an essential term or condition of employment may be probative of whether the control possessed and exercised is substantial.
Depending on the circumstances of a particular case, evidence of control over a nonessential term or condition that nonetheless constitutes a mandatory subject of bargaining may be probative of whether an entity possesses and exercises substantial direct and immediate control over an essential term or condition of employment. One can readily foresee cases where the parties dispute the significance or sufficiency of evidence that an entity exercises substantial direct and immediate control over an essential term or condition of employment, such as by claiming that the evidence is not credible or is too isolated or sporadic to meet the substantiality standard, but where the entity's control over one or more related nonessential terms may tend to support a finding of substantial direct and immediate control over an essential term or condition. For example, an entity's control over grievance adjustment or drug or alcohol testing might be probative of its direct and immediate control over discipline or supervision, and an entity's control over dress codes or attendance rules might be probative of its direct and immediate control over discipline.
Evidence of an entity's contractually reserved or indirect control over an essential term or condition of employment, or its control over mandatory but nonessential subjects of bargaining, is not, however, otherwise probative of whether the entity “meaningfully affects matters relating to the employment relationship.” Under the final rule, a putative joint employer reaches that threshold only through possession and exercise of substantial direct and immediate control over one or more essential terms and conditions of employment.
The Board has modified the proposed rule to factor indirect control into the joint-employer analysis, but not to find it sufficient without more to make an entity a joint employer. Accordingly, the final rule provides that evidence of indirect control over essential terms and conditions of employment is probative of joint-employer status, but only to the extent that it supplements and reinforces evidence of direct and immediate control over essential terms and conditions.
The definitions of the several essential terms and conditions of employment include statements of what does and does not count as direct and immediate control over the essential term and condition being defined. These statements may bear on indirect control, since what does not count as direct and immediate control
The final rule recognizes contractually reserved but unexercised control as a potentially relevant consideration. It provides that evidence of an entity's contractually reserved but never exercised authority over the essential terms and conditions of another employer's employees is probative of joint-employer status, but only to the extent it supplements and reinforces evidence of direct and immediate control over essential terms and conditions of employment.
In addition, although not stated explicitly in the regulatory text, the distinction drawn between indirect control that may be relevant to a joint-employer determination and “decisions that set the objectives, basic ground rules, and expectations for a third-party contractor”
The proposed rule stated, in relevant part, that “[a] putative joint employer must possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment
The final rule retains the requirement that direct and immediate control over essential terms and conditions of employment be “substantial” to give rise to joint-employer status. The Board has decided, however, to define “substantial direct and immediate control” in the final rule. As defined, “substantial” direct and immediate control means direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment of another employer's employees. Such control is not “substantial” if it is only exercised on a sporadic, isolated, or de minimis basis. Thus, the exercise of even direct and immediate control may be so isolated, sporadic or de minimis that it fails to establish that the putative joint employer meaningfully affects matters relating to the employment relationship.
The proposed rule, in relevant part, states that “[a]n employer may be considered a joint employer of a separate employer's employees only if the two entities share or codetermine the employees' essential terms and conditions of employment,
The final rule expands the list of essential terms and conditions to include wages, benefits, and hours of work. Additionally, to provide greater certainty and remove a potential issue from litigation, the final rule makes the list of essential terms exhaustive. Finally, the final rule has been revised to provide that an entity's control over other mandatory subjects of bargaining not considered essential terms and conditions of employment is probative of joint-employer status, but only to the extent it supplements and reinforces evidence of direct and immediate control over essential terms and conditions of employment.
The proposed rule included a number of hypothetical scenarios, termed “examples.” They were included to provide additional guidance on the practical application of the proposed rule. The Board has decided to omit the hypothetical scenarios from the final rule and has instead provided more specific guidance in the text of the rule itself, as discussed below.
Congress has delegated general rulemaking authority to the Board. Specifically, Section 6 of the National Labor Relations Act, 29 U.S.C. 156, provides that the Board “shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the [Administrative Procedure Act (APA)], such rules and regulations as may be necessary to carry out the provisions of [the Act].”
Although the Board historically has made most substantive policy determinations through case
Further, Section 6 authorizes the final rule as necessary to carry out Sections 2, 7, 8, 9, and 10 of the Act, 29 U.S.C. 152, 157, 158, 159, and 160, respectively. Specifically, Section 2(2) of the Act defines “employer” and Section 2(3) defines “employee.” Section 7 of the Act defines the employee rights that the Act protects, including the right to bargain collectively through representatives of their own choosing, the right to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, and the right to refrain from these activities. Section 8 of the Act defines unfair labor practices under the Act. Of particular relevance is Section 8(a)(5), which provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of
In the NPRM, we expressed a preliminary belief that rulemaking in this area of the law is desirable for several reasons. Specifically, the NPRM stated that rulemaking, rather than adjudication, would enable the Board to gather information from a wide variety of interested parties and to provide greater clarity to the joint-employer analysis. Rulemaking would also respect the reasonable expectations of regulated parties by ensuring that further changes to the law in this area would only be made prospectively in a new rulemaking proceeding, whereas with case adjudication, changes in the law may be made retroactively. After carefully considering nearly 29,000 comments, the Board continues to believe that rulemaking, rather than adjudication, is the better method to revise and clarify the standard for determining joint-employer status under the Act.
First, the Board has been well served by public comment on the issue. The Board received numerous helpful comments from a wide variety of sources, many with considerable legal expertise and/or a great deal of relevant experience. Having considered these comments, the Board has refined the proposed rule in several ways, outlined above in Section II and discussed more fully below in Sections V and VI.
It is likely that the Board would not have received as much input from revisiting the joint-employer standard through adjudication rather than rulemaking. Rulemaking has given interested persons a way to provide input through the convenient comment process, and participation was not limited, as in the adjudicatory setting, to legal briefs filed by the parties and amici. Further, the comments confirm that it was especially important for the Board to receive feedback in light of the recent oscillation on the joint-employer standard, after decades of stability, beginning with
Second, rulemaking has made it possible for the Board to provide greater clarity with respect to the standard than would likely be accomplished through adjudication. Although the Board has decided, in response to comments, to omit the examples that were set forth in the text of the proposed rule, the final rule provides clarity by, for example, setting forth actions that will and actions that will not constitute direct and immediate control over each essential term and condition of employment. This is regulatory guidance that could be dismissed as dicta if set forth in an adjudicatory decision in a case in which it was not essential to the outcome. By providing such guidance, the final rule will comport with the Supreme Court's instruction that the Board should provide parties with “certainty beforehand as to when [they] may proceed to reach decisions without fear of later evaluations labeling [their] conduct an unfair labor practice.”
Third, the Board continues to believe, as discussed in the NPRM, that by establishing the joint-employer standard through the Board's Rules and Regulations, the final rule will enable employers, unions, and employees to plan their affairs free of the uncertainty that significant changes to the joint-employer doctrine could be made, and retroactively applied, via case adjudication.
Finally, the decision to engage in rulemaking regarding the standard for determining joint-employer status is consistent with the similar determinations, by the United States Department of Labor (DOL) and the United States Equal Employment Opportunity Commission (EEOC), to similarly address this issue through rulemaking.
In sum, and as indicated in the NPRM with respect to the proposed rule, the Board believes that the final rule will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships, thereby enhancing labor-management stability, the promotion of which is one of the principal purposes of the Act.
A number of commenters claim that Chairman Ring, Member Emanuel, and/or Member Kaplan entered into this rulemaking with unalterably closed minds as to the outcome and consequently that each should recuse himself from participating in it. For the reasons that follow, the Board rejects these contentions.
“[A]n individual should be disqualified from rulemaking only when there has been a clear and convincing showing” that the official “has an
Consistent with the foregoing precedent, each participating Member has determined that there is no basis to recuse himself from this rulemaking. Indeed, comparison of the final rule with the proposed rule in itself clearly demonstrates that the Members did not engage in this endeavor with “an unalterably closed mind.” After considering nearly 29,000 comments, the Board has revised the proposed rule in several significant respects. Throughout this rulemaking process, the Board has been willing to reconsider the preliminary views expressed in the NPRM and to revise the rule as found appropriate.
One commenter raises arguments based on section 1, paragraph 6 of Executive Order 13770, entitled “Ethics Commitments by Executive Branch Appointees,” 82 FR 9333 (Jan. 28, 2017).
Here, the joint-employer rulemaking—unlike an administrative adjudication of a case—is not a “specific proceeding affecting the legal rights of the parties” to that proceeding. Rather, this rulemaking is a matter of general applicability. See 5 CFR 2641.201(h)(1)-(2). Further, the phrase “including regulations” in the pledge recusal provision in section 1, paragraph 6 of Executive Order 13770 “is not intended to suggest that all rulemakings are covered,” but instead is a “reminder that regulations sometimes may be particular matters involving specific parties, although in rare circumstances.” Ethics Pledge: Revolving Door Ban—All Appointees Entering Government, DO-09-11 at 2 (Mar. 26, 2009) (“certain rulemakings may be so focused on the rights of specifically identified parties as to be considered a particular matter involving specific parties”); see also Guidance on Executive Order 13770, LA-17-03 (Mar. 20, 2017). Because the joint employer rulemaking is not directed at specific parties, the cited provision of Executive Order 13770 does not apply, and arguments based on Executive Order 13770 are misplaced.
Citing Member Emanuel's participation in
Commenters also argue that Member Emanuel should recuse himself because his participation in this rulemaking would “accomplish the same goals” that he could not accomplish in
Moreover, and as emphasized above, the final joint-employer rule applies prospectively only. Thus, the final rule will not effectively reinstate the Board's vacated decision in
Although the Board's Designated Agency Ethics Official (DAEO) determined that Member Emanuel was disqualified from participation in the
Another commenter has suggested that the DAEO's memorandum is flawed because it was issued while the Board's recusal procedures were under review.
One commenter also contends that Member Emanuel's participation in this rulemaking creates an appearance of preferential treatment of a client (Leadpoint) of his former law firm because the client would “derive the same impermissible benefit as it would have from
As discussed above, section 1, paragraph 6 of Executive Order 13770 does not apply to this rulemaking and thus does not support SEIU's claim. Further, because the final rule will apply prospectively only and will not affect pending unfair labor practice cases such as
Two commenters argue that Chairman Ring and Member Emanuel are “too biased to participate in rulemaking” based on unfair labor practice litigation involving McDonald's USA, LLC (the McDonald's litigation).
The Board issued its decision approving a proposed settlement of the McDonald's litigation on December 12, 2019. See
Finally, to the extent that any commenter's argument regarding the McDonald's litigation is based on 5 CFR 2635.502(a)-(b), the argument is misplaced. 5 CFR 2635.502(a)(1) states that, unless he receives prior authorization, an employee should not participate in a particular matter involving specific parties that he knows is likely to affect the financial interests of a member of his household, or in which he knows that a person with whom he has a covered relationship is
5 CFR 2635.502(a)(2) also includes a “catchall” provision, which states: “An employee who is concerned that circumstances
The Board received almost 29,000 comments from interested organizations, labor unions, business owners, members of Congress, state attorneys general, academics, and other individuals. The Board has carefully reviewed and considered these comments as discussed below.
The Board received numerous comments on the development of the joint-employer doctrine under the Act. In general, those comments acknowledge the accuracy of the Board's description of that development in the NPRM, which is briefly summarized above in Section I. As more fully developed there, for at least 30 years (from no later than 1984 to 2015), evidence of direct and immediate control over essential terms and conditions of employment was required to prove that an entity was the joint employer of another business's workers. This requirement disappeared in August 2015 with the issuance of
Several commenters criticize the proposed rule's return to the Board's joint-employer standard as it existed before
In addition, some commenters contend that the final rule's “direct and immediate” standard was “manufactured” by the Board in
Contrary to these comments, the pre-
As the D.C. Circuit has held, “the common law inquiry is not woodenly confined to indicia of direct and immediate control; an employer's indirect control over employees
The final rule, moreover, is consistent with the Board's pre-1984 precedent, which deemed indirect control relevant to joint-employer status without holding that it was sufficient, standing alone, to establish that status. For example, in
Some commenters argue that the rule conflicts with the policies and purposes of the NLRA by purportedly diminishing opportunities for collective bargaining and eliminating protections for those seeking to exercise their rights under the Act.
Many commenters support requiring actual exercise of substantial direct and immediate control in order to establish joint-employer status. In this regard, commenters assert, among other things, that this requirement is practical;
Relatedly, several commenters state that evidence of indirect control may be “probative,”
In contrast, several commenters say that consideration of indirect control is consistent with the common law, the pertinent Restatements, court decisions (including
Citing various sections of the Act, several commenters argue that indirect control is either relevant to, or an independently sufficient basis for finding, joint-employer status. Specifically, they cite the definition of “employer” in Section 2(2),
Under the common law, some forms of indirect control are relevant to the joint-employer analysis. Consistent with this principle, the final rule makes clear that evidence of indirect control over essential terms and conditions of employment is probative of joint-employer status, but only to the extent that it supplements and reinforces evidence of direct and immediate control over essential terms and conditions of employment. Nothing in the Act itself or joint-employer precedent compels us to adopt a rule that permits a finding of joint-employer status based solely on an entity's indirect control over another entity's employees, and the Board declines to do so. With regard to comments that cite various sections of the Act, none of the cited sections requires a conclusion that one entity's exercise of merely indirect control over another entity's employees is sufficient to make the former entity a joint employer. Further, the Board believes that the policies of the Act are furthered, not hindered, by requiring only those entities to come to the bargaining table that have sufficient control over essential terms and conditions of employment to warrant a finding that they meaningfully affect matters relating to the employment relationship, and that direct and immediate control over at least one essential term is necessary to warrant such a finding.
Several commenters state that the term “direct and immediate control” is unclear and will lead to uncertainty and litigation over its meaning.
For the reasons stated by many commenters, the final rule provides guidance on distinguishing what does and does not evidence direct and immediate control over each essential term and condition of employment. We believe that that this approach helps clarify the meaning of “direct and immediate control.” Moreover, the several definitions of essential terms and conditions of employment—specifically, of what does not constitute evidence of direct and immediate control—also shed light on the meaning of indirect control.
Many commenters are critical of the term “indirect control,” saying, among other things, that it is undefined, ambiguous, and/or seemingly limitless.
Further, several commenters propose defining, or describe, “indirect control” as involving or including control exercised through intermediaries or controlled third parties,
Based on these comments, the Board has decided to provide more clarity by expressly defining “indirect control” in the final rule in a manner that largely tracks the distinction that the D.C. Circuit articulated in
One commenter states that indirect control should be considered along with all of the facts and circumstances, including how often indirect control is actually exercised, how many employees are impacted by the indirect control, and whether the indirect control governs a significant number of essential terms and conditions of employment.
The final rule incorporates several aspects of these comments. Preliminarily and as a general matter, the rule states that joint-employer status must be determined on the totality of the relevant facts in each employment setting. More specifically, the final rule provides guidance as to kinds of indirect control that may not be probative of joint-employer status. It does so in the several definitions of essential terms and conditions in stating what does
While not specifically addressed in the text of the final rule, so-called social responsibility provisions, such as contractual provisions requiring workplace safety practices, sexual harassment policies, morality clauses,
One commenter asserts that the NPRM created confusion by providing that joint-employer status would be limited to entities that play an active role in “establishing” essential terms and conditions of employment.
The proposed rule was not intended to limit joint-employer status in this way. The text of the proposed rule did not thus limit joint-employer status, and neither does the text of the final rule. Thus, an entity may be found to be a joint employer where it possesses and exercises substantial direct and immediate control over essential terms and conditions of employment by maintaining or revising them without having established them in the first instance.
One commenter states that we should rely on indirect control that is “actual and measurable”—
Some commenters describe various fact patterns they said would be problematic under the proposed rule, including a situation where an entity uses a pretextual reason to ask an undisputed employer to discharge an employee, where the request is unlawfully motivated.
One commenter states that the Board should first conduct an independent-contractor analysis to determine whether the Board has jurisdiction before assessing whether direct and immediate control has been exercised.
Many commenters address the question of whether reserved but unexercised control is relevant to the joint-employer analysis.
A number of commenters argue that the Board should not consider contractually reserved but unexercised control in its joint-employer analysis. One commenter argues that under the right-to-control standard set forth in the Board's decision in
In contrast, many commenters argue that the Board's standard should give at least some weight to evidence of an entity's contractually reserved control over essential terms and conditions of employment of another employer's employees.
Commenters further argue that the Act itself supports considering contractually reserved but unexercised control, citing the Act's purpose of promoting collective bargaining, which is expressly stated in Section 1 of the Act, and the asserted need to adapt to changes in today's workforce by extending the right to collective bargaining to a wide variety of contingent workers as a matter of policy.
Two commenters argue that a joint-employer standard that does not consider reserved control would be inconsistent with Section 2(11) of the Act, which defines who is a “supervisor” under the Act.
Having carefully considered these comments, the Board has decided to modify the proposed rule to provide that an entity's contractually reserved but never exercised authority over the essential terms and conditions of employment of another employer's employees is probative of joint-employer status, but only to the extent that evidence of such authority supplements and reinforces evidence of actually exercised direct and immediate control.
The Board agrees with those commenters who suggest that an entity's ability to cancel a contract or terminate a business relationship with another entity should not be deemed reserved control relevant to the joint-employer inquiry.
The Board agrees with commenters who observe that the common law and the Act
Similarly, and consistent with the congressional purpose expressed in the Taft-Hartley amendments,
For the following reasons, the Board is unpersuaded by the arguments by analogy to the Board's analysis of supervisory status under Section 2(11) of the Act.
First, determining supervisory status under Section 2(11) turns on the interpretation of statutory language that differs from the statutory language governing employer or employee status under Section 2(2) and 2(3), respectively. The history of interpretation of Section 2(11) has not been straightforward or free from controversy. See,
Second, while the commenters correctly observe that the
Finally, “an individual must exercise supervisory authority over employees of the employer at issue, and not employees of another employer, in order to qualify as a supervisor under Section 2(11) of the Act.”
Many commenters provide examples of industries or business relationships involving what the commenters identify as potential or reserved control.
Further, many commenters provide examples of specific kinds of contractual reservations of control that should or should not be probative of an entity's status as a joint employer. As made clear above, kinds of reserved “control” that are “routine components of a company-to-company contract,”
Some commenters discuss whether the joint-employer analysis can or should consider the ability of an entity that uses services provided by another entity's employees to have input on who provides those services, to monitor performance, to dictate times, manner, and method of performance, or a user entity's reservation of the right to reject individual workers provided by a supplier entity and to require that supplied workers comply with the user entity's plant rules and regulations.
An entity's contractually reserved authority to monitor performance ordinarily will not be probative of joint-employer status. If, however, the evidence were to demonstrate that conduct characterized as “monitoring performance” also encompasses instructing individual employees
One commenter also questions whether the joint-employer analysis could consider a user entity's reservation of authority to prevent disruption of its operations or unlawful conduct by a supplier entity's employees on its property, or the user's efforts to monitor, evaluate, and improve the performance of supplied employees where such efforts fall short of controlling the manner, means and details of their performance.
Another commenter observes that many businesses outsource janitorial and security services, or production, delivery, and marketing functions.
Two commenters suggest that the Board should clarify that an entity does not exercise control over a term or condition of employment by entering into a contract that dictates a particular employment term for individuals performing services under that contract.
One commenter suggests that the Board should require proof that a joint employer exercises actual supervision and direction on an ongoing basis.
Many commenters suggest that if the Board decides to consider indicia of reserved, unexercised control, it do so with specific limits.
Two commenters suggest that the Board should draw clear lines between the kinds of reserved control it will not find probative of joint-employer status (such as brand standards in franchise agreements) and those it will find probative (such as contractually reserved authority to codetermine essential terms and conditions of employment).
Another commenter suggests that the Board should consider reserved control probative of joint-employer status only insofar as it embodies an entity's specific right to displace another entity and directly control the other entity's employees, as opposed to possession by the first entity of some economic influence over the entity that retains day-to-day control over its own employees.
A commenter suggests that the Board should not consider reserved control as a sufficient basis to permit, as primary, activity otherwise prohibited as secondary under Section 8(b)(4) of the Act.
Another commenter suggests that the Board should consider, in individual unfair labor practice cases, whether a putative joint employer actually controls the specific term(s) or condition(s) of employment implicated in the case, whether or not it possesses or exercises control over other terms and conditions of employment.
Finally, a commenter suggests that the Board explain the term “active role” used in the NPRM and define the frequency with which an entity must actually exercise contractually reserved control and the scope of such exercise in order to be found a joint employer.
Many commenters present practical and legal arguments for and against the proposed rule's requirement that an entity actually exercise control over terms and conditions of employment of another entity's employees in order to be found a joint employer of those employees. As reflected in the final rule and discussed below, the Board has decided to retain this requirement.
Beginning with practical arguments about an actual exercise requirement, many commenters argue that such a requirement introduces ambiguity into the analysis, makes outcomes less predictable, or otherwise prejudices interested parties in any potential litigation of joint-employer issues.
Commenters also argue that an actual exercise requirement will prevent effective collective bargaining, because an entity subject to another entity's reserved authority will be unable to effectively bargain over terms and conditions of employment subject to that authority, and could allow an entity that had not participated in bargaining to upend any collective-bargaining agreement covering terms and conditions of employment over which the entity possessed contractually reserved, unexercised control.
Other commenters argue that an actual exercise requirement is a bright-line rule that will make it easier for parties to predict outcomes, encourage economically fruitful business relationships and contractual arrangements, and promote stability by providing the Board and the courts with a consistent standard.
After carefully considering all of the commenters' arguments, the Board has decided to retain the actual exercise requirement in the final rule. Whether or not evidence of actual exercise of control was required, it would clearly be relevant under any permissible joint-employer standard. Accordingly, the Board disagrees with any contention that requiring evidence of actual exercise of direct and immediate control unnecessarily complicates the joint-employer analysis. For similar reasons, the Board disagrees with the suggestion that the rule's approach introduces a “worst evidence rule.” To the contrary, an entity's actual exercise of direct and immediate control over essential terms and conditions of employment of another entity's employees is the best evidence that the first entity is a joint employer of those employees and is properly subjected to the consequences of that finding under the Act. Moreover, the rule does take parties' contractual allocation of rights and responsibilities into account as part of the totality of the relevant facts in each particular employment setting. This approach is consistent with the long line of Board and court decisions emphasizing the fact-dependent nature of the joint-employer inquiry.
The Board has concluded that an actual exercise requirement will provide businesses more certainty over whether the Board will or will not find them to be joint employers of another employer's employees and to conduct themselves accordingly. An actual exercise requirement is also a bright-line rule that will make it easier for the Board, and ultimately for the courts, to reach consistent decisions across a range of individual cases. And the Board has responded to commenters' requests for guidance about the meaning of contractually reserved but unexercised control and the extent to which we will find it probative of a joint-employer relationship in Part V.C, “Response to Comments: Comments Regarding Contractually Reserved But Unexercised Control,” above.
The Board finds unpersuasive arguments that an exercise requirement imposes an unfair burden of proof on unions. To the contrary, a putative joint employer's actual exercise of direct and immediate control is readily observable by employees, who can then share the information with unions or others. Evidence of reserved but unexercised control, in contrast, is more likely to be known only by the contracting parties themselves. In any event, in unfair labor practice cases, the burden in every case is on the General Counsel to establish the complaint allegations,
Finally, the Board disagrees with arguments that an exercise requirement will impede collective bargaining, interfere with the formation of efficacious collective-bargaining relationships, or permit entities to move in and out of joint-employer status and thus selectively affect terms and conditions of employment of other employers' employees without incurring obligations under the Act. Nothing in this rule changes the ordinary rights and obligations of employees, employers, and unions under the Act. Every employer remains subject to all rights and obligations defined by Sections 8 and 9 of the Act with respect to its employees. Thus, an employer that possesses and exercises substantial direct and immediate control over employees' terms and conditions of employment must, if those employees are represented, bargain on request with their representative as required by Section 8(a)(5). The rule does not excuse joint employers from that duty, nor does it deprive represented employees of their remedies under Section 8(a)(5) with respect to an employer that unilaterally changes their terms and conditions of employment without first giving their representative notice and an opportunity to request bargaining, or of their remedies under Section 8(a)(5) within the meaning of Section 8(d) with respect to an employer that fails to adhere to the terms of a collective-bargaining agreement with their representative. Moreover, a collective-bargaining agreement may, in certain circumstances, impose restraints on an entity's exercise of contractually reserved authority over essential terms and conditions of employment governed by the agreement, though the entity is not party to the agreement. Cf.
Turning to legal arguments about an exercise requirement, some commenters assert that the Board only began in 1984 to require evidence that an entity had exercised control over another entity's employees as part of the joint-employer analysis, and that, at that time, the Board did not articulate a legal justification for doing so.
Some commenters oppose an actual exercise requirement by arguing that the common law, as reflected in judicial decisions, restatements of the law, and elsewhere, requires giving contractually reserved but unexercised control dispositive weight.
On the other side of the issue, commenters argue that an exercise requirement is consistent with the common law as reflected in court decisions, prior Board decisions, legislative history of the NLRA, and relevant restatements of law.
Finally, one commenter argues that the Board, as an executive agency with subject-matter expertise, is not required to apply the common law in its rulemaking, that nothing in the Act or in Supreme Court precedent interpreting the Act requires the Board to follow the common law, and that there are, in any case, no relevant uniform common-law principles.
After carefully considering all of the comments on both sides of the issue, we conclude that the rule's approach falls within the boundaries of the common law as applied in the particular context of the NLRA.
We disagree with the argument that an actual exercise requirement is inconsistent with Board and court cases finding employment relationships where employees require little or only routine supervision.
Nor is an exercise requirement inconsistent with
The Board also disagrees with the numerous arguments that an actual exercise requirement puts the Board's standard in conflict with other statutory regimes. First, vastly different areas of law identified by commenters involve widely different concerns and should not, as a normative matter, necessarily require the application of identical tests to determine joint-employer status. Second, to the extent that different standards stem from different statutory definitions of employment relationships, those differences reflect the judgment of Congress that different standards should apply in those settings—differences the Board is not at liberty to ignore.
Finally, the Board agrees that it may reasonably expect some deference from the courts with regard to our exercise, through rulemaking, of Congressional authority delegated to us in Section 6 of the Act. See
The Board is also not persuaded by the argument that there are no relevant uniform common-law principles because the joint-employer concept is foreign to the common law. As courts and the Board have observed, “[t]he basis of the [joint-employer] finding is simply that one employer while contracting in good faith with an
Several commenters state that treating limited and routine control as irrelevant to determining joint-employer status is consistent with and/or required by the Act, court decisions, the common law, and/or pertinent Restatements.
On the other side, some commenters argue that failing to consider limited and routine control as evidence of joint-employer status is inconsistent with the Act, the common law, court decisions, and/or pertinent Restatements.
Further, many commenters assert that the terms are vague, undefined, confusing, or contradictory, and/or that their use in the rule would create unanswered, potentially fact-intensive questions that will require litigation to answer.
Upon consideration of these comments, the Board has decided to modify the proposed rule to eliminate “limited and routine” as a general qualifying term and to use that term solely in the context of defining what is, and what is not, direct and immediate control over supervision. Thus, under the final rule, an entity does not exercise direct and immediate control over supervision where its instructions are “limited and routine and consist primarily of telling another employer's employees what work to perform, or where and when to perform the work, but not how to perform it.” Rule Sec. 103.40(C)(7). This is consistent with how the term was discussed in the NPRM's supplementary information and the case law cited therein. See 83 FR at 46683 (citing
As noted above, the final rule defines “substantial direct and immediate control” as “direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment” and further provides that the exercise of direct and immediate control over an essential term or condition of employment is not “substantial” if it is “only exercised on a sporadic, isolated, or de minimis basis.” This definition is necessary to specify what constitutes “substantial” direct and immediate control, and the inclusion of clear standards for determining substantiality avoids the concerns identified by commenters with the NPRM's exclusion of “limited and routine” control as evidence of joint-employer status.
Several commenters provide examples of limited or routine control that should not be deemed probative of joint-employer status. These examples include contracted-for standards,
The final rule incorporates many of the commenters' examples in appropriate places. For example, most of the examples in the former category—
One commenter asserts that the common law requires the Board to weigh “all of the incidents of the relationship” or to consider the amount of control necessary for the particular work or workplace.
One commenter states that the Board should consider that, in some cases, a “routine” contractual term will directly implicate the terms and conditions of employment, particularly in industries where the cost of a contract is almost entirely the cost of labor, or where an entity has only one customer.
One commenter states that, in jobs where employees are rarely directly supervised in their day-to-day tasks, the employer's level of day-to-day supervision is less relevant.
One commenter states that much supervision by undisputed employers is routine, and therefore the fact that supervision is routine should not be a basis for declining to find joint-employer status.
Many commenters provide positive feedback regarding the requirement of “substantial” direct and immediate control. Specifically, commenters state that this requirement is clear, predictable, and/or rational;
In contrast, many commenters argue that the Board should not impose the “substantial” qualifier, effectively advocating that
For many of the reasons discussed in the positive comments, the Board continues to believe that it is appropriate to include the “substantial” qualifier in the final rule. Contrary to some of the negative comments, inclusion of the qualifier will not impair meaningful collective bargaining. In fact, meaningful bargaining would be impaired if the final rule dispensed with a substantiality requirement, since the requirement ensures that only those entities that meaningfully affect matters relating to the employment relationship are present at the bargaining table. Rule Sec. 103.40(A). It also would be contrary to the purposes and policies of the Act to impose liability for another company's unfair labor practices on an entity that does not exercise “substantial” direct and immediate control over essential terms and conditions of employment of that company's employees, or to subject that entity to secondary economic pressure. Further, the substantiality requirement is consistent with longstanding pre-
Several commenters contend that the term “substantial” is undefined, vague, and/or will require litigation to clarify.
In response to the comments, the Board has decided to expressly define “substantial direct and immediate control” in the final rule. Specifically, the final rule provides that “[s]ubstantial direct and immediate control' means direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment of another employer's employees.” The rule further specifies that control is not “substantial” if it is “exercised on a sporadic, isolated, or de minimis basis.” The final rule thus clarifies that a party asserting joint-employer status must prove that the putative joint employer (i) exercises direct and immediate control over one or more essential terms or conditions of employment of another entity's employees, (ii) that the control exercised over that essential term or those essential terms has “a regular or continuous consequential effect” and is not “sporadic, isolated, or de minimis,” and (iii) that the substantial direct and immediate control thus exercised over that essential term or those essential terms warrants finding that the putative joint employer “meaningfully affects matters relating to the employment relationship” with another employer's employees. Of course, the final rule is necessarily general, and future cases adjudicated under the rule will give further meaning and guidance.
The example proposed by one commenter of employees with no employer at all because control is divided among numerous entities no one of which exercises substantial control over any essential term or condition strikes us as unrealistic. The rule presumes that employees have a direct employer, and the comment does not persuade us to abandon that presumption.
Regarding the example of setting wages, the commenter seems to assume that a one-time setting of initial wages would compel a finding of joint-employer status. The Board would not make that assumption. Suppose a user entity is party to a long-term contract with a supplier employer. The user entity sets the initial wages to be paid the supplied workers. Years go by, the user entity never exercises any further control or influence over wages, and the supplier employer repeatedly adjusts the supplied employees' wages. Whether the user entity is a joint employer of the supplied employees based on that one-time initial setting of wages does not have a self-evident affirmative answer. On the other hand, where a user entity's one-time setting of supplied employees' wages has a continuous consequential effect on
One commenter states that the Board must clarify the relationship between “substantial” direct and immediate control and “limited and routine” control.
Several commenters suggest examples of what should not be deemed substantial direct and immediate control, such as establishing eligibility criteria to provide services,
In the NPRM, the Board proposed that “an employer may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.”
The majority of comments concerning this aspect of the proposed rule do not contest the overarching principle that the Board's joint-employer standard should focus on a putative joint employer's control over employees'
After carefully considering these comments, the Board has decided to modify the proposed rule in several respects. Under the final rule, essential terms and conditions of employment “means wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” Thus, the list of essential terms and conditions of employment has been expanded and made exclusive. To be found a joint employer under the final rule, an entity must possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of employment as would warrant finding that the entity meaningfully affects matters related to the employment relationship, and joint-employer status is determined on “the totality of the relevant facts in each particular employment setting.” Thus, direct and immediate control over at least one essential term or condition is necessary, but the final rule makes clear that it is not necessarily sufficient. Moreover, under the final rule, control over mandatory subjects other than essential terms and conditions may be relevant to joint-employer status, depending upon the other evidence in the case. As provided in the final rule, “the entity's control over mandatory subjects of bargaining other than the essential terms and conditions of employment is probative of joint-employer status, but only to the extent it supplements and reinforces evidence of the entity's possession or exercise of direct and immediate control over a particular essential term and condition of employment.”
The Board believes a standard that requires an entity to possess and exercise substantial direct and immediate control over essential terms and conditions of employment is consistent with the purposes and policies of the Act, as discussed in greater detail below in the justification for the final rule. The Act's purpose of promoting collective bargaining is best served by a joint-employer standard that places at the bargaining table only those entities that control terms and conditions that are most material to collective bargaining. Moreover, a less demanding standard would unjustly subject innocent parties to liability for others' unfair labor practices and coercion in others' labor disputes. A fuzzier standard with no bright lines would make it difficult for the Board to distinguish between arm's-length contracting parties and genuine joint employers. Accordingly, preserving the element of direct and immediate control over
Turning to the merits of specific comments, the Board agrees that a proper standard should not disregard control over mandatory subjects of bargaining that do not qualify as essential terms or conditions, and the final rule does not limit the joint-employer analysis to essential terms. That said, the Board has long focused the joint-employer analysis primarily on a putative joint employer's control over essential terms and conditions of
Two commenters argue that the Ninth Circuit's decision in
Moreover, several federal appellate courts have approved the Board's longstanding insistence on control of essential terms and conditions of employment to make an entity a joint employer. See
Some commenters argue that the Board should require direct and immediate control of
Contrary to a commenter's contention, the Board's longstanding requirement of control over essential terms and conditions of employment, to which both the proposed and final rules adhere, is consistent with the Supreme Court's decision in
We also disagree with the assertion that requiring control of essential terms and conditions cannot be squared with
While economic terms are certainly important aspects of the employment relationship, they are not the only subjects sought to be negotiated at the bargaining table. Indeed, monetary terms may not necessarily be the most critical issues between the parties. . . . [I]t may be that the parties' primary interest is in the noneconomic area. It was shortsighted, therefore, for the Board to declare that bargaining is meaningless unless it includes the entire range of economic issues.
The proposed rule was, and the final rule is, consistent with
Nothing in Section 8(a)(5) and (d) of the Act prohibits the Board from promulgating a joint-employer rule that requires control over essential terms and conditions of employment. Under Section 8(a)(5) and (d), an employer is obligated to bargain with its unit employees' representative “with respect to wages, hours, and other terms and conditions of employment,” commonly
For example, it is certainly possible that in a particular case, a putative joint employer's control might extend only to terms and conditions of employment too limited in scope or significance to permit meaningful collective bargaining. Moreover, as a rule, a joint employer will be required to bargain only with respect to such terms and conditions which it possesses the authority to control.
362 NLRB at 1614.
That said, the Board believes, after considering the relevant comments, that control over mandatory subjects other than essential terms and conditions should play a role in the joint-employer analysis. Accordingly, the final rule provides that evidence of such control is probative of joint-employer status “to the extent it supplements and reinforces evidence of the entity's possession or exercise of direct and immediate control over a particular essential term and condition of employment.” Rule Sec. 103.40(A).
Several commenters addressed whether the final rule should make the list of essential terms and conditions of employment exhaustive—
After careful consideration, the Board has decided to modify the proposed rule in two relevant respects. First, the final rule makes the list of essential terms and conditions of employment exclusive. This will provide clarity and predictability for the regulated community and remove an issue from litigation. Second, under the final rule, an entity must “possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of . . . employment as would warrant finding that the entity meaningfully affects matters relating to the employment relationship” with another employer's employees. This reflects the Board's recognition that direct and immediate control over one essential term may warrant a finding of joint-employer status—but on the other hand, it may not, and control even over more than one essential term may fall short of the mark where an entity has exercised such control so infrequently that the evidence fails to support a finding that the entity meaningfully affects matters relating to the employment relationship.
Finally, the Board agrees that wages, benefits, and hours of work should be included in the list of essential terms and conditions of employment. The language of the Act supports including wages and hours of work. Section 8(d) defines collective bargaining as the “performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to
Board precedent likewise supports including wages, hours of work, and benefits among the essential terms and conditions. See,
The courts, too, have understood essential terms and conditions of employment to include wages, hours of work, and benefits. See
Two commenters contend that the list of essential terms and conditions of employment must or should include each of the indicia of supervisory status set forth in Section 2(11).
Two additional points should be emphasized here. First, as described above, control over a mandatory subject of bargaining that is not an “essential” term is relevant in a joint-employer analysis under this final rule. Such control can supplement and reinforce evidence of possession or exercise of direct and immediate control over a particular essential term and condition of employment, as discussed above. Second, when applying this final rule, the Board will not be bound by a putative joint employer's characterization of its conduct. For example, under the circumstances of a particular case, an employment action codetermined by a putative joint employer and characterized as a “layoff” could in fact be a discharge. Similarly, “rewarding” another employer's employee could, depending on the circumstances, be tantamount to bestowing a benefit. Relatedly, if a putative joint employer directly and immediately resolved (
Several comments address the doctrine of joint employment as it has been interpreted under other statutes. In general, as explained below, we believe that joint-employer determinations under other statutes are instructive but of limited utility to the joint-employer inquiry under the NLRA.
Several commenters observe that the FLSA broadly defines “employ” as to “suffer or permit to work” and “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.”
Two commenters assert that courts consider evidence of indirect control and the “economic realities” of the work relationship when determining whether an entity is a joint employer under the FLSA.
Other commenters point out that the Occupational Safety and Health Administration (OSHA) applies a policy under which, on multi-employer worksites, more than one employer may be cited for a hazardous condition that violates an OSHA standard.
Some commenters observe that the joint-employer inquiry under the FLSA is performed on a case-by-case basis, and that this inquiry is always fact-specific under the common law.
Some commenters contend that the proposed joint-employer standard will impact numerous areas of labor-management relations and federal and state workplace laws.
One commenter observes that indirect and reserved control are relevant factors in joint-employer determinations under Title VII, citing, inter alia,
Several commenters cite the Restatement (Second) of Agency, in particular Sections 2(2) and 220, for the proposition that an employee is a worker who is subject to the employer's “control or
Initially, as explained more fully below, a master-servant relationship under the common law of independent-contractor status is not synonymous with joint-employer status.
In any case, the Board agrees with one commenter that, although the court in
One comment contends that consideration of indirect control over employees' wages and working conditions is consistent with common-law agency doctrine.
One commenter observes that Section 220 of the Restatement (Second) of Agency includes many considerations that are broader and less formalistic than the proposed rule, such as whether the one employed is engaged in a distinct occupation or business and whether the work is a part of the regular business of the putative employer.
Another commenter argues that when determining what the D.C. Circuit and the common law mean by indirect control, it may be useful to consider the so-called subservant doctrine, under which employer-employee relationships are established by indirect control.
Many commenters address the relevance—or lack of relevance—of independent-contractor precedent to the joint-employer inquiry. As noted by one commenter, in NLRB v. United Insurance Co. of America, 390 U.S. at 256, the Supreme Court held that the determination of whether a worker is a statutorily protected employee or a statutorily exempt independent contractor is governed by common-law agency principles.
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the
Several commenters acknowledge that various elements of the independent-contractor test are inapplicable to determining joint-employer status.
Moreover, as observed by one commenter, in
Consistent with these commenters, the Board believes that the common-law factors relative to determining employee or independent-contractor status are instructive but of limited utility in the joint-employer context. Application of those factors is appropriate to determine whether a putative employer has the “right to control the manner and means by which the product is accomplished,”
A commenter contends that the common law of independent-contractor status is instructive in the joint-employer context to the extent it assists in identifying the
One of the above commenters further argues that the common law of independent-contractor status—specifically, the Restatement (Second) of Agency—makes clear that contractually reserved authority, standing alone, is sufficient to establish an employment relationship.
The Board received many comments regarding the impact of the D.C. Circuit's decision in
Some commenters contend that the proposed rule is inconsistent with the D.C. Circuit's conclusions in
Some commenters, on the other hand, argue the proposed rule is consistent with the D.C. Circuit's decision.
Another commenter argues that it is irrelevant whether the rule is consistent with
The Board believes that the final rule is consistent with
Commenters propose multiple changes to the proposed rule based on the D.C. Circuit's criticisms of
The first set of comments responds to the court's criticism of the Board's application of the indirect control factor in
Commenters make various proposals for how the rule could erect the “legal scaffolding” the D.C. Circuit directed the Board to provide. One commenter proposes that the Board list and define essential terms and conditions of employment.
Some commenters propose that the rule exclude from the joint-employer inquiry specific actions they say fall within the routine contours of most joint undertakings. One commenter, for example, proposes the rule state that the following factors do not support joint-employer status: Decisions that set the objectives, basic ground rules, and expectations for a third-party contractor; use of a cost-plus contract; routine contractual terms; supervision that is inherent to any joint undertaking; global oversight; cooperation and coordination between a service recipient and a contractor's employees; and the basic contours of a contracted-for service.
The final rule provides the legal scaffolding the D.C. Circuit found lacking in the Board's
The final rule should also provide a satisfactory response to the specific exclusions sought by several commenters because it provides examples of specific acts that will not constitute direct and immediate control over essential terms and conditions.
The second set of comments responds to the court's criticism of the
In response to the Court's critique, commenters request that the rule define the terms and conditions “essential” to make collective bargaining “meaningful” and clarify what “meaningful collective bargaining” requires. To that end, one commenter proposes the rule identify the subjects over which a joint employer must negotiate and specify that they do not include decisions to change aspects of the contracting arrangement affecting employment terms, to reallocate bargaining responsibilities between employers, or to end a service arrangement.
The final rule addresses the shortcomings the court identified in
Concerned that the court's decision in
The final rule clarifies the contours and limits of indirect and reserved control consistent with both the commenters' requests and the D.C. Circuit's opinion. The final rule specifies that indirect and reserved control are probative of joint-employer status only to the extent they supplement and reinforce evidence of direct and immediate control. However, for reasons explained above, the Board has not limited indirect and reserved control to a specific right to displace a contractor and directly control its employees,
Other comments advance additional proposals based on
Another commenter requests that the Board add “significant” to the rule to match the phrasing used by the D.C. Circuit where it stated that “for roughly the last 25 years, the governing framework for the joint-employer inquiry has been whether both employers `exert significant control over the same employees' in that they `share or co-determine those matters governing the essential terms and conditions of employment.' ” Id. at 1209 (quoting
Commenters also discuss whether the D.C. Circuit's decision affects the Board's authorization to promulgate a joint-employer standard via rulemaking rather than case adjudication, or at least the propriety of doing so. Two commenters argue that by advising that the rulemaking must color within common-law lines rather than directing the Board to adopt a specific rule or no
Other commenters argue that
The Board does not agree that
Moreover, the arguments against the rulemaking mistake substance for process. The common law of agency must inform the substance of the joint-employer rule, not the process by which it is promulgated. The Board is free to establish the joint-employer standard through rulemaking or case adjudication, so long as the substance of the standard colors within common-law lines. The final rule stays within those bounds and is therefore consistent with
One commenter argues that any rulemaking is premature while
Many commenters cite the rise of contingent employment and alternative workforce arrangements as a significant reason for opposing the proposed rule, and many commenters have described this economic trend in detail. For example, one commenter represents that the percentage of U.S. workers who participate in flexible contract work as their primary job increased 56 percent between 2007 and 2017, and that roughly 10 percent of workers in 2017 were employed in “alternative work arrangements,” including 10.6 million independent contractors, 2.6 million on-call workers, 1.4 million temporary help agency workers, and 933,000 workers provided by contract firms.
Relatedly, other commenters argue that the increased outsourcing of business functions to contractors and subcontractors has resulted in the “fissuring” of the workplace, where two or more firms control the terms and conditions of employment.
Other commenters argue that the Board's refusal to address these issues would constitute a failure on the part of the Board to adapt the Act to the changing patterns of industrial life.
After considering these comments, the Board is not persuaded that the trend toward increased contingent or temporary employment relationships warrants abandoning the initial proposal to restore to the joint-employer standard the requirement that a putative joint employer exercise substantial direct and immediate control over essential terms and conditions of employment. Instead, meaningful collective bargaining is best promoted by a standard that places at the bargaining table only those entities that actually control, directly and immediately, the essential terms and conditions of employment of another
Opponents of the proposed rule cite research purportedly indicating that the proposed rule would have negative economic consequences for workers. Specifically, one commenter contends that the proposed rule would make collective bargaining among subcontracted and temporary workers nearly impossible, and that this would result in an annual transfer of $1.3 billion from workers to employers.
In contrast, supporters of the proposed rule contend that
One commenter contends that the negative economic and social effects of outsourcing cited by critics of the proposed rule have to be weighed against the economic opportunities that outsourcing provides.
The final rule is not based on a prediction by the Board regarding purported economic impacts, if any, on workers' wages or the economy generally. Rather, as explained throughout, returning to the joint-employer framework that predated
Many commenters write favorably regarding the hypothetical scenarios—called “examples” in the NPRM—contained in the regulatory text of the proposed rule, stating, among other things, that they are helpful;
By contrast, many commenters criticize the scenarios, stating, among other things, that they are unhelpful;
Having considered these comments and on further review, the Board has decided not to include in the final rule the examples from the proposed rule. As several commenters note, real-life fact patterns are likely to be far more complex than those portrayed in the examples' hypothetical scenarios, and therefore the scenarios are not that useful. Nevertheless, as discussed elsewhere, the Board has sought to clarify the joint-employer standard by adding definitions of its key terms to the regulatory text. The Board believes that this captures the benefits of the examples while avoiding the more negative aspects noted by some commenters. The Board also believes that this approach helps provide the “scaffolding” that the court in
Additionally, one commenter states that the Board should consider the totality of the circumstances in each case, including both evidence of a putative joint employer's control as well as evidence of its lack of control.
The final rule also incorporates, in various ways, other feedback received on the hypothetical scenarios from the proposed rule. Specifically, one commenter notes that Examples 1 and 2 did not provide any guidance as to the impact of a finding of control over the wage rate.
Regarding Examples 2 and 11, one commenter states that, in the contract-security industry, a company must be able to impose certain requirements and should be able to have a contract employee removed from its property for poor or unprofessional performance or for engaging in illegal activities.
Regarding Example 6, one commenter suggests making it clear that Franchisor has not exercised direct and immediate control over essential terms and conditions of employment of Franchisee's employees to the extent Franchisor merely recommends or coordinates the availability of certain benefits that Franchisee is not obligated to offer to its employees.
Regarding Example 2, one commenter notes that some employers may use unfounded complaints from other entities to terminate employees' employment.
One commenter states that the examples do not indicate how many instances of direct and immediate control are required and that, while several examples describe control that is “direct and immediate,” none explains whether an entity would be deemed a joint employer based on the facts in those examples, or how many other “essential terms and conditions” an employer must control.
The Board's general rulemaking authority has been recognized both by commenters supporting the rule and by those opposing the rule.
One commenter acknowledges that the Board has statutory authority to promulgate a rule on joint-employer status, but urges the Board to rely on several other provisions of the Act, as well as Section 6, in promulgating this rule.
In contrast, other commenters oppose the Board's use of rulemaking to establish the joint-employer standard. For the following reasons, the Board finds these arguments unpersuasive.
One commenter states that a desire by the Board to avoid policy oscillation cannot serve as a proper basis for rulemaking because the proposed rule would represent further oscillation with respect to the joint-employer standard.
Some commenters argue that the Board's reference in the NPRM to “continuing uncertainty” in the labor-management community in the wake of the Board's decision in
One commenter argues that rulemaking is inappropriate because the reasons justifying past rulemakings by the Board—judicial rejection of adjudicatory attempts to formulate a standard regarding bargaining units in the healthcare industry; the purported need to provide a comprehensive update of the Board's representation-election rules—are absent here.
Another commenter suggests that rulemaking is suspect because it is a “purely political process” and because adjudication is the Board's “normal” process.
Several commenters contend that adjudication is preferable to rulemaking because adjudication assertedly permits the Board to develop joint-employer doctrine more carefully, one case at a time.
One commenter argues that it is a vice, rather than a virtue, that a standard codified in a regulation is more difficult to change than one developed through adjudication, especially because a regulation would, in its view, deprive the Board of the flexibility needed to take into account “ever-changing factors in our dynamic economy.”
One commenter argues that rulemaking is an inefficient use of Board resources.
Another commenter suggests that it would have been more efficient for the Board to have engaged in interpretive rulemaking, as an interpretative rule could accomplish similar goals and would not require the Board to respond to comments.
One commenter asserts that the proposed rule runs counter to the APA's “presumption against changes in current policy.”
In
In any event, the Board is firmly convinced that the final rule is an improvement over the standard set forth in
The final rule comprehensively addresses all these shortcomings more fully than would be possible in the adjudication of a case. It re-establishes a commonsense hierarchy that recognizes the superior force of evidence of actually exercised direct and immediate control as compared with indirect and reserved-but-unexercised control. It provides an exhaustive list of “essential” terms and conditions of employment, and for each essential term it specifies what will and will not count as direct and immediate control over that essential term. In these ways, the final rule provides vital guidance regarding the circumstances in which joint-employer status will and will not attach. The final rule also erects the “legal scaffolding” demanded by the D.C. Circuit in
One commenter argues that the Board has failed to adequately consider the costs of the proposed rule relative to its benefits, beyond mere costs to small businesses and labor unions.
Contrary to the suggestion of the commenter, and for reasons already explained, it is inappropriate to base the joint-employer standard on studies regarding economic impact because the Board is constrained to base the standard on the common law, applied in the particular context of the Act.
Moreover, the cases cited by the commenter involve statutes that, unlike the Act, contain wording indicating that costs must be considered. See
With respect to Executive Order 13725, that order encourages, but does not require, independent agencies to comply with the order. Id. Sec. 3(b). As the NLRB is an independent agency, see 44 U.S.C. 3502(5), it is not required to comply with Executive Order 13725.
Finally, the Board does not agree with the notion that joint-employer status should arise from the purported effect on competition for labor from franchisor-franchisee no-poaching agreements. For one thing, competition for labor is only one factor in the wage an employer offers. Moreover, the disputed no-poaching agreements, as described by the commenter, limit the ability of franchisees to hire employees of the franchisor or other franchisees of that franchisor. Such provisions place no limit on cross-franchise competition for labor. Regardless of whether one fast food franchise can hire an employee away from another franchisee of the same franchisor, a no-poaching agreement between a franchisee and franchisor would not prevent the franchisee from hiring an employee away from franchisees of a different franchisor. Whatever highly attenuated influence no-poaching agreements may have on market wages, it is a far cry from direct and immediate control over wages as defined in the final rule—the kind of control that warrants placing the entity that exercises it at the bargaining table.
One commenter argues that the proposed rule violates Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” which requires that “for every one new regulation 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.”
Several commenters argue that the Board failed to properly consider the value of taking no action, or the value of promulgating a standard that makes entities with sufficient market power joint employers, because the Board did not base its decision on empirical data or economic and public policy research.
To the extent the commenters are contending that the Board failed to consider alternatives, the contention is incorrect. The Board sought comment on “all aspects” of the proposed rule, including whether the common law dictated the approach of the proposed rule or of
To the extent the commenters are arguing that the Board should have engaged in an economic analysis assessing the value of taking no action, the argument has no merit. As stated repeatedly herein, the joint-employer standard is governed by the common law as applied within the context of the Act, not by broader economic factors. See,
One commenter asserts that the Board has failed to provide sufficient time for comments.
Contrary to this commenter, the time provided for comments was more than sufficient. Preliminarily, the APA provides no minimum comment period, and many agencies, including the Board in past rulemaking proceedings, have afforded comment periods of only 30 days. Agencies have discretion to provide still shorter periods and are simply “encouraged to provide an appropriate explanation for doing so.” Administrative Conference of the United States Recommendation 2011-2 (June 16, 2011), at 3.
The NPRM, which issued September 14, 2018, announced a deadline for initial comments of November 13, 2018, and that reply comments needed to be received on or before November 20, 2018. The Board then extended the comment period three times, for a total of 76 additional days. This included an extension the Board granted following the D.C. Circuit's decision in
Several commenters argue that the Board should have held public hearings in connection with this rulemaking, as it has done in prior rulemakings. Commenters assert that hearings would provide more input and would help dispel the impression that the outcome was preordained.
The AFL-CIO argues that the Board violated the APA by relying on arguments and evidence outside the rulemaking record
The HR Policy Association counters that the Board did not act improperly, and it asserts that (1) the Board did not rely on the petitions; (2) the Board was not required to include the petitions in the record; (3) by submitting the petitions with its comments, the AFL-CIO has provided the public an opportunity to comment on the petitions; and (4) many of the organizations involved issued press releases regarding their petitions, and there was media coverage about potential rulemaking. HR Policy Association at 3-5 and fn. 8 (citing June 2018 press releases and news reports regarding rulemaking petitions).
The Board has not relied on materials outside of the administrative record in this rulemaking. The administrative record contains each of the petitions for rulemaking, including those cited by the AFL-CIO. In addition, the Board did not undertake this rulemaking based on any of these petitions. Each of the petitions was filed
One commenter also argues that changes made to the proposed rule in response to the D.C. Circuit's decision in
Apparently assuming that the commenter's “logical outgrowth” argument concerns the role that indirect and reserved-but-unexercised control may play in the final rule, other commenters counter that the proposed rule did not require the Board to ignore indirect or reserved control.
“To satisfy the [APA]'s notice requirement, 5 U.S.C. Sec. 553(b)(3), an agency's final action must be a logical outgrowth of its proposed rule.”
Here, the rule proposed in the NPRM relevantly stated: “A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine.” The NPRM stated that the proposed rule “reflects the Board's preliminary view, subject to potential revision in response to comments, that the Act's purposes of promoting collective bargaining and
In
Consistent with the D.C. Circuit's decision in
Although the final rule modifies the proposed rule in this and other respects, the final rule remains a logical outgrowth of the proposed rule. First, the final rule, like the proposed rule, requires proof of “substantial direct and immediate control” to establish joint-employer status. The final rule provides that indirect and reserved control are also probative, but the proposed rule was merely silent regarding those forms of control. The proposed rule did not expressly exclude them. The proposed rule also made clear the Board's understanding that the joint-employer standard had to be consistent with the common law, and it referred to the
Many commenters argue that clarifying the joint-employer standard as proposed in the NPRM will make joint-employer determinations more predictable, and that greater predictability in this regard is desirable.
Having considered these comments, the Board believes that the final rule will promote predictability and certainty and will do so more effectively than retaining the
Commenters also variously claim that retaining or discarding
In determining the appropriate joint-employer standard, the Board does not rely on the various purported economic effects that commenters predict the final rule will have on the economy at large or on workers' wages. The final rule is governed by the common law of joint-employer relationships in the particular context of the Act and further based on a policy judgment that it would frustrate, rather than promote, national labor policy to draw into a collective-bargaining relationship an entity that has never exercised any substantial direct and immediate control over essential terms and conditions of employment of another employer's employees. Thus, as it did in
Some commenters argue that legally required actions franchisors take to protect their trademark and service mark should not be considered evidence of joint-employer status.
By contrast, the one commenter argues that the Board should not disregard evidence of influence where it is subjectively motivated by concerns such as compliance with the law or protection of a brand.
As explained elsewhere, the Board has decided not to include in the final rule any provisions that are tailored to particular industries or business models. Instead, the final rule establishes a single, generally applicable standard that assesses the “totality of the relevant facts in each particular employment setting.” As appropriate, the Board will take the nature of the particular business or industry into consideration in applying the standard articulated in the final rule to the facts of the specific case.
Importantly, however, we note that routine contracting practices of independent businesses will not evidence joint-employer status under the final rule. Such practices include provisions in business contracts that set the objectives, basic ground rules, or expectations for another entity's performance under a contract. As discussed above, and in agreement with the D.C. Circuit, the final rule differentiates “those aspects of indirect control relevant to status as an employer” from “those quotidian aspects of common-law third-party contract relationships,” which “cast no meaningful light on joint-employer status.”
Of course, the Board will examine the circumstances of the franchisor-franchisee relationship in each particular case to determine whether the franchisor has exercised direct and immediate control over the essential terms and conditions of employment of the franchisee's employees. Whether a franchisor exercises control over essential working conditions is measured objectively and is not based on the franchisor's subjective intent. The possibility that the franchisor can “work around” joint-employer liability by negotiating an indemnification clause is not a sufficient reason to find that its brand-protection measures should be considered evidence of joint-employer status. Put somewhat differently, as between franchisors and franchisees, we decline to put our thumb on the scale. That is exactly what we would do if we imposed a joint-employer standard that compels franchisors to contract around an otherwise forced choice between protecting their brand and incurring joint-employer status, or avoiding joint-employer status by abandoning their legal duty to protect their brand.
Similarly, a variety of corporate social responsibility standards are routine contracting practices and will not be considered evidence of joint-employer status. Examples include an entity's requirement that another employer adopt safety and quality standards
Commenters present conflicting views regarding the effect the proposed rule would have on collective bargaining. Some contend that
Professor Kulwiec also posits that the concern over having too many employers at the bargaining table is overstated because the existence of a joint-employer relationship does not require bargaining unless the Board finds that the unit is appropriate for collective bargaining.
The Board shares the concerns of those commenters who observe that the
One commenter contends that an entity's requirement that another employer comply with government regulations should be considered evidence of direct control, citing
This argument is misplaced. The rule does not provide that employers have no duty to bargain over discretionary action taken to comply with a government regulation. Rather, it addresses which entity—the employees' direct employer, or a third party—must engage in such bargaining. Requiring the direct employer to comply with government regulations does not evidence joint-employer status because requiring such compliance is part of the basic ground rules or expectations for that employer's performance under a contract. Thus, considering such requirements as evidence of joint-employer status would be contrary to the common-law principles stated in
Commenters argue that by eliminating the bargaining obligation of an entity that exercises indirect control over the terms and conditions of employment of another employer's employees, the proposed rule will cause labor unrest, such as strikes.
Some commenters advance arguments related to Section 8(b)(4)'s prohibition on secondary picketing. For example, the one commenter contends that joint-employer status should not render an otherwise neutral entity a “primary” employer lawfully subject to picketing unless the entity is directly and substantially involved in controlling the term or condition of employment in dispute.
This rulemaking solely concerns the joint-employer standard, not other legal doctrines. The Board therefore declines the request to modify standards regarding secondary picketing. Certainly, as was stated in the NPRM, a finding of joint-employer status may determine whether picketing directed at a particular business is primary and lawful, or secondary and unlawful. In that sense, the final rule's clarification of the joint-employer standard should make it easier to determine whether an entity is a joint employer and thus a lawful target of picketing along with employees' direct employer. The Board is not inclined, however, to rule that an entity may be a joint employer
In addition, commenters argue that narrowing the joint-employer standard
Finally, one commenter argues that eliminating the relevance of contractually reserved authority, which is objective and documentable, will engender litigation and impose recordkeeping and related costs.
Many commenters favor the proposed rule to the extent it exposes an entity to unfair labor practice liability as a joint employer only if it exercises substantial direct and immediate control over another employer's employees' terms and conditions of employment.
Other commenters urge us to adopt a final rule that would further limit unfair labor practice liability even when an entity is found to be a joint employer of another's employees. One commenter, for example, suggests imposing liability only where the joint employer is involved in the unlawful act or controls the essential term or condition of employment at issue in the unlawful act, or where the unfair labor practice cannot be adequately remedied without its participation.
The Board declines to expand the scope of the proposed rule to change Board precedent regarding the joint-and-several liability of one joint employer for the unfair labor practices committed by another joint employer. Although joint-employer status is a predicate of joint liability, the analyses of the two concepts have often been distinct, each with its own considerations and caselaw.
Moreover, as explained in the NPRM, a significant motive for this rulemaking is to resolve the recent oscillations in Board law regarding joint-employer status that have occurred in the past several years. The NPRM explained that the rule was necessary “[i]n light of the continuing uncertainty in the labor-management community created by these adjudicatory variations in defining the appropriate joint-employer standard under the Act.” 83 FR at 46682. There has been no recent oscillation in the law, however, regarding the issue of joint liability, which the Board did not change or even address in
The issue of joint liability is also best resolved on a case-by-case basis. Determining whether one joint employer is jointly and severally liable for the other joint employer's unfair labor practices depends on the nature of the joint-employment relationship and the type of violation alleged. As the Board explained in
Several commenters discuss particular industries or business relationships,
The joint-employer doctrine plays an important role in the administration of the National Labor Relations Act (NLRA or the Act). Most notably, the doctrine determines when an entity other than the direct employer of certain employees has a duty to bargain with the representative of those employees, may be liable for unfair labor practices it did not directly commit, and may be targeted as a primary employer in a labor dispute. The joint-employer analysis set forth in this final rule is based on the common law as applied in the particular context of the NLRA. Certain considerations must be taken into account under the Act that may not apply in other contexts. The Board must consider when an entity's participation in collective bargaining is required for there to be meaningful bargaining over the terms and conditions of employees directly employed by another employer. The Board also must consider under what circumstances it is appropriate to impose liability on an entity that did not directly commit an unfair labor practice. And the Board must consider Congress's concern with limiting third parties' exposure to economic warfare in labor disputes.
The Board intends in this final rule to return, with clarifying guidance, to the carefully balanced law as it existed before the Board's departure in
As noted above, in reviewing the Board's
By returning to the Board's prior precedent, this final rule answers that open question. In applying the common law in the context of the NLRA, the Board will not find indirect or unexercised reserved control, alone, dispositive, but such control will be relevant to the extent it supplements and reinforces evidence of direct and immediate control. The Board's analysis here, in the words of the D.C. Circuit, “color[s] within the common-law lines identified by the judiciary.” Id. at 1208. The standard we adopt in this final rule dates back at least to the Board's adoption in
With this final rule, the Board has endeavored to provide greater clarity, guided by the many comments received, as to how it will determine joint-employer status. Joint-employer determinations have always been fact-intensive, and they will continue to be so. The Board is confident, however, that a more precise definition of the key terms and analytical points will facilitate consistent application of the standard across a broad spectrum of industries and business-to-business relationships. This specificity stands in contrast to the uncertainty the Board's
Broadly, an entity shares or codetermines the essential terms and conditions of another employer's employees—that is, may be considered a joint employer of those employees—when it possesses and exercises substantial direct and immediate control over the employees' essential terms and conditions. The final rule's definitions of “essential terms and conditions of employment,” “direct and immediate control,” and when direct and immediate control is “substantial” are explained below, as is the final rule's treatment of indirect control and unexercised, contractually reserved authority and of certain common business practices.
In
First, the inclusion of these three terms and conditions, urged by many commenters, is a commonsense addition. “Wages” and “hours” feature prominently in the NLRA. See Sections 8(d) and 9 of the Act. And Board precedent has assumed wages, benefits, and hours of work are essential terms and conditions of employment for purposes of the joint-employer analysis. See,
Second, setting essential terms and conditions of employment as including
Direct and immediate control distinguishes the obvious, meaningful control exercised over employees from attenuated indirect and unexercised reserved control, which is much less significant in identifying a joint employer, and from routine features of company-to-company contracting that are not relevant to joint-employer status at all. The final rule defines direct and immediate control with respect to each of the eight essential terms and conditions of employment based on lines drawn in the Board's pre-
Over wages, an entity exercises direct and immediate control if it actually determines the wage rates, salary, or other rate of pay that is paid to another employer's individual employees or job classifications. See,
Over hours of work, an entity exercises direct and immediate control if it actually determines work schedules or the work hours, including overtime, of another employer's employees. See
Over hiring, an entity exercises direct and immediate control if it actually determines which employees will be hired and which employees will not. Compare
Over discharge, an entity exercises direct and immediate control if it actually decides to terminate the employment of another employer's employee. See,
Over discipline, an entity exercises direct and immediate control if it actually decides to suspend or otherwise discipline another employer's employee. See
Over supervision, an entity exercises direct and immediate control by actually instructing another employer's employees how to perform their work or by actually issuing employee performance appraisals. See,
Over direction, an entity exercises direct and immediate control by assigning particular employees their individual work schedules, positions, and tasks. See,
It is a well-settled principle in Board law that “[t]o establish joint employer status there must be a showing that the employer meaningfully affects matters relating to the employment relationship.”
Depending on the circumstances, however, direct and immediate control over only one essential term or condition of employment, or even more than one, has sometimes been found insufficient to meaningfully affect matters relating to the employment relationship. The direct-and-immediate control may be too isolated or sporadic to be meaningful for purposes of imposing bargaining obligations and potential unfair labor practice liability.
The final rule reflects this precedent by providing that the Board will consider the totality of the relevant facts in each particular employment setting and that “[s]ubstantial direct and immediate control” means “direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment of another employer's employees. Such control is not `substantial' if only exercised on a sporadic, isolated, or de minimis basis.” The final rule also specifies, as has always been the case, that the party asserting joint-employer status bears the burden of proof. See,
As referenced above, indirect control and unexercised, contractually reserved authority generally reference control that is not direct and immediate. However, the final rule specifies that, within the meaning of the rule, indirect control does not encompass indirect control or influence over setting the objectives, basic ground rules, or expectations for another entity's performance under a contract. This distinction is discussed further in the following section on business practices that are not probative of joint-employer status. By contractually reserved authority, the final rule means the authority that an entity reserves to itself, under the terms of a contract with another employer, over the essential terms and conditions of employment of that other employer's employees, but that has never been exercised.
Under Board law as it existed prior to
The Board is mindful, as was implicit in its pre-
Accordingly, under the final rule, the Board does not intend the following to be evidence of joint-employer status: Entering a cost-plus contract (with or without a maximum reimbursable rate); setting minimal standards for hiring, performance, or conduct, such as those required by government regulation; requiring the contractor to institute safety or sexual-harassment policies; a franchisor's protection of its trademark or service mark; or anything else that promotes legal compliance or sets the objectives, basic ground rules, or expectations for a contractor's performance.
The Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (RFA), 5 U.S.C. 601-612, requires an agency promulgating a final rule to prepare a Final Regulatory Flexibility Analysis (FRFA) when the regulation will have a significant impact on a substantial number of small entities. An agency is not required to prepare a FRFA if the Agency head certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). In the NPRM, although the Board believed that this rule would not have a significant economic impact on a substantial number of small entities, the Board issued its Initial Regulatory Flexibility Analysis (IRFA) to provide the public the fullest opportunity to comment on the proposed rule. See 83 FR at 46693. The Board solicited comments from the public that would shed light on potential compliance costs that may result from the rule that it had not identified or anticipated.
The RFA does not define either “significant economic impact” or “substantial number of small entities.”
The final rule establishes the standard for determining, under the NLRA, whether a business is a joint employer of a group of employees directly employed by another employer. This rule is necessary to foster predictability and consistency in joint-employer determinations under the NLRA, particularly in light of considerable uncertainty regarding the status of the current standard, which was established through adjudication. The guidance furnished by the final rule will enable regulated parties to determine in advance whether their actions are likely to result in a joint-employer finding, which entails or may entail significant consequences under the NLRA: A duty to bargain collectively, exposure to what would otherwise be unlawful secondary union activity, and derivative unfair labor practice liability. Accordingly, a final rule setting forth a comprehensive and detailed standard is vitally important to businesses covered by the NLRA, employees employed by those businesses, and labor organizations that represent or seek to represent those employees. Defining the joint-employer standard through rulemaking also permits the Board to provide more guidance than would be readily achievable through adjudication. The final rule accomplishes these objectives by defining critical elements of the joint-employer standard that have heretofore been undefined and by focusing the inquiry on the factors most relevant to joint-employer status in light of the policies and purposes of the NLRA.
As stated in the Board's IRFA, the rule “will only be applied as a matter of law when . . . businesses are alleged to be joint employers in a Board proceeding.” 83 FR at 46693. After analyzing recent case statistics, the Board found that only .028% of
Some comments criticized the Board's IRFA for finding that the businesses “most directly impacted by the proposed rule” are those alleged to be joint employers in a Board proceeding. 83 FR at 46693. By measuring “most direct[] impact” in this manner, one commenter argues that the Board has ignored that businesses structure their transactions based in part on the applicable legal costs of compliance and that workers and small businesses bear these costs when the indirect employers have substantial market power, whether or not they are subject to a Board proceeding.
Other comments similarly criticized the Board for failing to analyze whether the proposed rule would cause competitive harm to small businesses on a broad basis. According to these comments, because the proposed rule allows indirect employers to avoid the cost and responsibility of complying with the NLRA, the rule places small employers at a competitive disadvantage to larger employers.
Respectfully, the foregoing commenters do not raise direct economic impacts under the RFA. The RFA does not require an agency to consider speculative and wholly discretionary responses to the rule, or the indirect impact on every stratum of the economy. What the statute requires is that the regulatory agency consider the direct burden that compliance with a new regulation will likely impose on small entities.
This construction of the RFA, requiring agencies to consider only direct compliance costs, finds support in the text of the Act. Section 603(a) of the RFA states that if an IRFA is required, it “shall describe the impact of the proposed rule on small entities.” 5 U.S.C. 603(a). Although the term “impact” is undefined, its meaning can be gleaned from Section 603(b), which recites the required elements of an initial regulatory flexibility analysis. One such element is “a description of the projected
Additional support for confining the regulatory analysis to direct compliance costs is found in an authoritative guide published by the Office of Advocacy of the SBA. In the SBA Guide, the SBA explains that “other compliance requirements” under Section 603 include the following examples:
(a) Capital costs for equipment needed to meet the regulatory requirements; (b) costs of modifying existing processes and procedures to comply with the proposed rule; (c) lost sales and profits resulting from the proposed rule; (d) changes in market competition as a result of the proposed rule and its impact on small entities or specific submarkets of small entities; (e) extra costs associated with the payment of taxes or fees associated with the proposed rule; and (f) hiring employees dedicated to compliance with regulatory requirements.
In the IRFA, the Board noted that the only identifiable compliance cost imposed by the proposed rule for entities not named in a Board proceeding related to reviewing and understanding the substantive changes to the joint-employer standard. 83 FR at 46695. Otherwise, there will be no “reporting, recordkeeping and other compliance requirements” for these small entities. See 5 U.S.C. 603(b)(4) & 604(b)(4). The same is true of the final rule. And the final rule imposes no mandatory capital costs, no mandatory costs of modifying existing process, no costs of lost sales or profits, and, as discussed further below, no appreciable changes in market competition. See SBA Guide at 37. Lastly, for small entities not party to Board proceedings, there are no costs associated with taxes or fees and no costs for additional employees dedicated to compliance, as no compliance requirements exist. Id.
Consistent with these principles, the Board rejects the view that it must analyze how indirect employers exercise market power within their contracting arrangements to determine the impact upon small businesses, as suggested by the comments discussed above. The D.C. Circuit has firmly rejected the notion that a regulating agency must analyze every indirect and remote economic impact. See
But a massive exercise in economic modeling is exactly what the commenter asks the Board to undertake. The rule does not require contracting parties to alter their arrangements now or in the future. If indirect employers with market power drive harder bargains with direct employers than they do now, as the commenter predicts, such outcomes will result from the individual choices of economic actors, not from actions required to comply with the rule.
Notwithstanding the indirect nature of the potential impacts raised by these comments, the Board also disagrees that the rule will upset existing collective-bargaining relationships. The Board believes that the rule will promote labor-management stability because it simplifies the test for joint employment, provides for a more consistent standard, and ends the unpredictable oscillations between differing tests for joint employment.
Furthermore, the Board finds no evidence to support the notion that the rule places small employers at a competitive disadvantage to large employers. Employers of all sizes routinely enter into service contracts, and all have an interest in the applicable joint-employer standard. Those private-sector employers that exercise substantial direct and immediate control over the essential working conditions of employees maintain the same legal responsibilities under the NLRA as they had before the rule. And while the rule does decrease liability and responsibilities of employers that do not exercise such control over those essential terms and conditions of employment, the rule does not intrude upon the contractual liberties of direct and indirect entities. Those employers may negotiate contractual terms of their choosing without the undue burden of a complicated joint-employer standard. Accordingly, this rule would provide no additional leverage for employers of any size to manipulate the supply of and demand for labor, nor interfere with market access.
One commenter argues that “[u]nder the proposed narrow standard, small businesses that can't afford to
Many critics of the Board's IRFA contend that the Board did not fully consider the impact of requiring direct employers, including small businesses, to bear the full cost of liability under the NLRA. For example, one commenter contends that, since the rule applies to business relationships where the larger entity contracts for services of the smaller employer, the smaller employer will shoulder all liability under the NLRA.
In the NPRM, the Board noted that liability and liability insurance costs may increase for small entities because they may no longer have larger entities with which to share the cost of any NLRA backpay remedies ordered in unfair labor practice proceedings. There, the Board further stated that these costs could arguably fall within the SBA Guide's category of “extra costs associated with the payment of taxes or fees associated with the proposed rule.”
Even if increased unfair labor practice liability were a direct cost attributable to the rule, those costs would not impact a substantial number of small entities. As the Board explained in the NPRM, only .028% of all 5.9 million business firms in the United States were alleged to be joint employers in Board proceedings from 2013 to 2017.
Nor does the Board believe the rule creates the prospect of added liability for direct employers subject to organizing campaigns or engaged in collective bargaining. These direct employers have always been the primary target of union organizing aimed at their workers by virtue of their direct control over payroll and other essential terms and conditions of employment. And as the Board stated in the NPRM, the proposed rule may make it easier for employers to collectively bargain without the complications of fragmented bargaining while providing much greater certainty as to their bargaining obligations. See 83 FR at 46695. As was also pointed out there, for at least 30 years (from no later than 1984 to 2015) evidence of indirect control was typically insufficient to prove that one company was the joint employer of another business's workers. See id. at 46693. And the contrary
Several comments assert that the Board should have provided a more detailed consideration of the impact upon labor unions, a specific category of small entities directly impacted by the proposed rule. One commenter, for example, believe that the alleged shift in market power away from direct employers will reduce employment and suppress pay and, in turn, cause a reduction in dues contributions to labor unions.
The comments on this issue present no reliable empirical evidence to show that the rule would have a significant economic impact on a substantial number of small entity labor unions. One commenter estimates $1.3 billion in yearly transfers from workers in contract firms and temporary help agencies to employers as a result of the rule, and argues that this $1.3 billion annual transfer will necessarily reduce union dues since dues are often calculated as a percentage of gross pay.
The Board finds this analysis unreliable because it makes several critical and unsubstantiated assumptions.
This analysis is flawed. Initially, it assumes that a pay disparity exists between union and nonunion workers in these industries, that the assumed disparity is consistent in magnitude with the disparity that exists in the overall economy, and that the impact of unionization (and not, for example, cost of living differentials) is the sole explanation for any pay disparity. The commenter presented no evidence to support these assumptions. But, most troublesome, the comment assumes that the new rule will cause union workers to
In the NPRM, the Board's IRFA assumed for purposes of analysis that a substantial number of small entity labor unions would be impacted by the rule. See 83 FR at 46693. But the Board also stated its belief that the cost of compliance with the rule would be very low, related to reviewing and understanding the substantive changes to the joint employer standard, meaning that there would not be a significant impact on a substantial number of small unions. See 83 FR at 46693 and 46695. In reviewing the comments on this subject, the Board finds no other compliance costs to labor unions, and no evidence showing a significant impact. Labor unions certainly have an interest in the rule, as with any other standard or substantive application of the NLRA, but the negative economic impacts on labor unions raised by the comments are wholly speculative and based upon perceived indirect consequences of the rule.
In fact, the rule leaves undisturbed the statutory duties and bargaining obligations of those employers that directly control payroll and other essential terms and conditions of employment for employees. As such, labor unions will still be able organize the workforces of direct employers, engage in collective bargaining with direct employers, and file unfair labor practices charges against direct employers. And the Board has made clear that the new standard will foster predictability and consistency regarding determinations of joint-employer status in a variety of business relationships, thereby promoting labor-management stability. Hence, the Board finds that there is no reliable evidence to support the proposition that the rule will have a significant impact on union organizing or union membership.
The Board's IRFA stated that the Board did not believe that the rule would impose any new recordkeeping or reporting requirements on small entities. See 83 FR at 46695. One commenter speculates that the rule will actually impose more onerous recordkeeping costs because small businesses will be required to maintain more detailed records of the actual control exercised upon their employees (by those small employers and their larger business partners).
Nor is the Board persuaded that any changes to the evidentiary burden placed upon parties to establish a joint-employer relationship will meaningfully affect the cost of litigation. Assuming an increase in litigation costs for a particular case, the commenter makes no effort to analyze the impact in order to assess the significance. The Board also expects that the new rule will decrease the overall amount of litigation involving the joint-employer standard, which would also decrease litigation costs to unions. In any event, beyond familiarization costs, the Board finds that the new rule imposes no additional costs for reporting, recordkeeping, or other direct compliance requirements, and none of the comments present empirical evidence to the contrary.
Some comments contend that the Board has failed to identify all relevant rules and regulations which may “duplicate, overlap or conflict with the proposed rule,” as Section 603(b)(5) of the RFA requires.
Rules are duplicative or overlapping if they are based on the same or similar reasons for the regulation, the same or similar regulatory goals, and if they regulate the same classes of industry. Rules are conflicting when they impose two conflicting regulatory requirements on the same classes of industry.
One commenter argues that the Board failed to conduct sufficient outreach to small businesses, including small local unions, that will be impacted by the rule. 5 U.S.C. 609.
The Chief Counsel of Advocacy of the Small Business Administration did not submit comments in response to the NPRM.
In order to evaluate the impact of the proposed rule, the Board first identified the entire universe of businesses that could be impacted by a change in the joint-employer standard. According to the United States Census Bureau, there were approximately 5.95 million business firms with employees in 2016.
The following employers are excluded from the NLRB's jurisdiction by statute:
• Federal, state and local governments, including public schools, libraries, and parks, Federal Reserve banks, and wholly-owned government corporations. 29 U.S.C. 152(2).
• Employers that employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities or prepare commodities for delivery. 29 U.S.C. 153(3).
• Employers subject to the Railway Labor Act, such as interstate railroads and airlines. 29 U.S.C. 152(2).
The final rule will only be applied as a matter of law when small businesses are alleged to be joint employers in a Board proceeding. Therefore, the frequency with which the issue comes before the Board is indicative of the number of small entities most directly impacted by the final rule. A review of the Board's representation petitions and unfair labor practice charges provides a basis for estimating the frequency with which the joint-employer issue comes before the Agency. During the five-year period between January 1, 2013, and December 31, 2017, a total of 114,577 representation and unfair labor practice cases were initiated with the Agency. In 1598 of those filings, the representation petition or unfair labor practice charge filed with the Agency asserted a joint-employer relationship between at least two employers.
As discussed in the NPRM, irrespective of an Agency proceeding, the rule may be more relevant to certain types of small employers because their
(1) Businesses commonly enter into contracts with vendors to receive a wide range of services that may satisfy their primary business objectives or solve discrete problems they are not qualified to address. And there are seemingly unlimited types of vendors who provide these types of contract services. Businesses may also subcontract work to vendors to satisfy their own contractual obligations—an arrangement common to the construction industry. Businesses that contract to receive or provide services often share workspaces and sometimes share control over workers, rendering their relationships subject to application of the Board's joint-employer standard. The Board does not have the means to identify precisely how many businesses are impacted by contracting and subcontracting within the United States, or how many contractors and subcontractors would be small businesses as defined by the SBA.
(2) Temporary help service suppliers (NAICS #561320) are primarily engaged in supplying workers to supplement a client employer's workforce. To be defined as a small business temporary help service supplier by the SBA, the entity must generate receipts of less than $27.5 million annually.
(3) Entities that use temporary help services in order to staff their businesses are widespread throughout many types of industries and include both large and small employers. A 2012 survey of business owners by the Census Bureau revealed that at least 266,006 firms obtained staffing from temporary help services in that calendar year.
(4) Franchising is a method of distributing products or services in which a franchisor lends its trademark or trade name and a business system to a franchisee, which pays a royalty and often an initial fee for the right to conduct business under the franchisor's name and system.
The Board received comments from the IFA and Chamber of Commerce stating that there are 233,000 small business franchisees in the United States. However, the Board is unable to verify the methodology of the underlying study producing that number. Nevertheless, the statistic supplied by these commenters is not far off from Census data showing the total number of franchisees with paid employees in 2012. In the Board's view, Census data is more reliable than a number that is derived from unknown means. Therefore, the Board has decided to rely on the Census's data in performing this analysis.
(5) Labor unions, as defined by the NLRA, are entities “in which employees participate and which exist for the purpose . . . of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
Based on the foregoing, the Board assumes there are 12,532 temporary help supplier firms, 197,204 franchise firms, and 13,408 union firms that are small businesses; and it further assumes that all 266,006 temporary help user firms are small businesses. Therefore, among these four categories of employers that are most interested in the final rule, 489,150 business firms are assumed to be small businesses as defined by the SBA. The Board believes that all of these small businesses, and also those businesses regularly engaged in contracting/subcontracting, have a general interest in the rule and would be impacted by the compliance costs, discussed below, related to reviewing and understanding the rule. But, as previously noted, employers will only be most directly impacted when they are alleged to be a joint employer in a Board proceeding. Given the Board's historic filing data, this number is very small relative to the number of small employers in these five categories.
Throughout the IRFA, the Board requested comments or data that might improve its analysis, 83 FR at 46693, 46695-46696, but no additional data was received regarding the number of small entities to which the rule will apply, other than the comments referenced in n. 409, above.
The RFA requires an agency to consider the direct burden that compliance with a new regulation will likely impose on small entities.
The Board concludes that the final rule imposes no capital costs for equipment needed to meet the regulatory requirements; no costs of modifying existing processes and procedures to comply with the final rule; no lost sales and profits resulting from the final rule; no changes in market competition as a result of the final rule and its impact on small entities or specific submarkets of small entities; and no costs of hiring employees dedicated to compliance with regulatory requirements.
Small entities may incur some costs from reviewing the rule in order to understand the substantive changes to the joint-employer standard. The Board estimates that a labor compliance employee at a small employer who undertook to become generally familiar with the proposed changes may take at most one hour to read the summary of the rule in the introductory section of the preamble. It is also possible that a small employer may wish to consult with an attorney, which we estimated to require one hour as well.
As to the impact on unions, the Board anticipates they may also incur costs from reviewing the rule. The Board believes a union would consult with an attorney, which is estimated to require no more than one hour of attorney time costing $97.08 (see fns. 418 and 419)) because union counsel should already be familiar with the pre-
The Board does not find the estimated $144.69 cost to small employers and the estimated $97.08 cost to unions in order to review and understand the rule to be significant within the meaning of the RFA. In making this finding, one important indicator is the cost of compliance in relation to the revenue of the entity or the percentage of profits affected.
The minimal cost to read and understand the rule, $144.69 for small employers and $97.08 for small unions, will not generate any such significant economic impacts.
In the NPRM, the Board requested comments from the public that would shed light on any potential compliance costs, 83 FR 46693, and considered those responses in the comments section above.
Pursuant to 5 U.S.C. Sec. 604(a)(6), agencies are directed to examine “why each one of the other significant
Several comments suggest that the Board withdraw the proposed rule and leave in place the
One comment proposes two additional alternatives.
In the NPRM, the Board considered exempting certain small entities. See 83 FR 46696. The Board received no comments on this potential alternative and again rejects this exemption as impractical because such a large percentage of employers and unions would be exempt under the SBA definitions, thereby substantially undermining the purpose of the final rule. Moreover, as this rule often applies to relationships involving a small entity (such as a franchisee) and a large enterprise (such as a franchisor), exemptions for small businesses would decrease the application of the rule to larger businesses as well, potentially undermining the policy behind this rule. Additionally, given the very small quantifiable cost of compliance, it is possible that the burden on a small business of determining whether it fell within a particular exempt category might exceed the burden of compliance. Congress gave the Board very broad jurisdiction, with no suggestion that it wanted to limit coverage of any part of the Act to only larger employers.
None of the alternatives considered accomplished the objectives of issuing this rule while minimizing costs on small businesses. Accordingly, the Board believes that promulgating this final rule is the best regulatory course of action.
In the NPRM, the Board explained that the proposed rule would not impose any information collection requirements and accordingly, the proposed rule is not subject to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521. See 83 FR 46696. No substantive comments were received relevant to the Board's analysis of its obligations under the PRA.
In the NPRM, the Board explained that the provisions of the proposed rule were substantive and that the Board would submit this rule and required accompanying information to the Senate, the House of Representatives, and the Comptroller General as required by the Small Business Regulatory Enforcement Fairness Act (Congressional Review Act or CRA), 5 U.S.C. 801-808. Pursuant to the Congressional Review Act, the Office of Information and Regulatory Affairs designated this rule as a major rule. Accordingly, the rule will become effective April 27, 2020.
This rule is published as a final rule.
Jurisdictional standards, Election procedures, Appropriate bargaining units, Joint Employers, Remedial Orders.
For the reasons stated in the preamble, the National Labor Relations Board amends 29 CFR part 103 as follows:
29 U.S.C. 156, in accordance with the procedure set forth in 5 U.S.C. 553.
(a) An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer's employees only if the two employers share or codetermine the employees' essential terms and conditions of employment. To establish that an entity shares or codetermines the essential terms and conditions of another employer's employees, the entity must possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningfully affects matters relating to the employment relationship with those employees. Evidence of the entity's indirect control over essential terms and conditions of employment of another employer's employees, the entity's contractually reserved but never exercised authority over the essential terms and conditions of employment of another employer's employees, or the entity's control over mandatory subjects of bargaining other than the essential terms and conditions of employment is probative of joint-employer status, but only to the extent it supplements and reinforces evidence of the entity's possession or exercise of direct and immediate control over a particular essential term and condition of employment. Joint-employer status must be determined on the totality of the relevant facts in each particular employment setting. The party asserting that an entity is a joint employer has the burden of proof.
(b) “Essential terms and conditions of employment” means wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.
(c) “Direct and Immediate Control” means the following with respect to each respective essential employment term or condition:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(d) “Substantial direct and immediate control” means direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment of another employer's employees. Such control is not “substantial” if only exercised on a sporadic, isolated, or de minimis basis.
(e) “Indirect control” means indirect control over essential terms and conditions of employment of another employer's employees but not control or influence over setting the objectives, basic ground rules, or expectations for another entity's performance under a contract.
(f) “Contractually reserved authority over essential terms and conditions of employment” means the authority that an entity reserves to itself, under the terms of a contract with another employer, over the essential terms and conditions of employment of that other employer's employees, but that has never been exercised.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the black pinesnake (
This rule becomes effective on March 27, 2020.
This final rule is available on the internet at
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Stephen Ricks, Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Fish and Wildlife Office, 6578 Dogwood View Parkway, Jackson, MS; telephone 601-321-1122.
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.
The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the black pinesnake. We are designating a total of approximately 324,679 acres (ac) (131,393 hectares (ha)) in eight units as critical habitat in Alabama and Mississippi.
On October 7, 2014 (79 FR 60406), we published a proposed rule to list the black pinesnake as threatened. On, March 11, 2015 (80 FR 12846), we published a proposed rule to designate critical habitat for the subspecies. On October 6, 2015 (80 FR 60468), we published the final listing rule, which added the black pinesnake to the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations at 50 CFR 17.11(h). On October 11, 2018 (83 FR 51418), we reopened the public comment period on the proposed critical habitat designation and associated draft economic analysis to revise two units proposed in the original designation and to announce public informational meetings on the proposed designation.
We published public notices in the Hattiesburg American on October 18, 2018, and the Clarke County Democrat on October 18, 2018. We held the two public informational meetings within the subspecies' range with one in Hattiesburg, Mississippi, on October 22, 2018, and a second one on October 24, 2018 in Thomasville, Alabama.
All other previous Federal actions for the black pinesnake are described in one or more of the documents discussed above.
We requested written comments from the public on the initial and revised proposed designation of critical habitat for the black pinesnake during two comment periods. The first comment period, associated with the proposed critical habitat designation and notification of the availability of the associated draft economic analysis (80 FR 12846), opened on March 11, 2015, and closed on May 11, 2015. The second comment period, announcing a revised proposed designation (83 FR 51418), opened on October 11, 2018 and closed on November 13, 2018. We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties, and invited them to comment on the proposed critical habitat designation and draft economic analysis during these comment periods. We also received comments during our two informational meetings held during the last open comment period in October 2018 in
During the first comment period, we received 184 written comments directly addressing the proposed critical habitat designation or the draft economic analysis. During the second comment period, we received 15 comments directly addressing the revised proposed critical habitat designation or the draft economic analysis. All substantive information provided during comment periods either has been incorporated directly into this final determination or is addressed in our responses below.
In accordance with our peer review policy published in the
We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding critical habitat for the black pinesnake. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
We are not suggesting that the individual pinesnakes documented in the 1990s are the same ones occupying the units today; a population persisting at the site would likely be made up of the progeny of the pinesnakes documented previously. For our initial analysis of all potential critical habitat areas, the pinesnake records were the primary indicator that the area could support the subspecies, followed by a thorough analysis using updated GIS habitat information of the units. If we found that sufficient forested habitat was still present and available in the vicinity of where the pinesnakes had been documented, we determined that there was a reasonable likelihood that black pinesnake populations still occur in those areas. Evidence supporting this line of reasoning is a record of a black pinesnake documented in July of 2015 in Unit 7 (Jones Branch, Clarke County, Alabama), verifying that pinesnakes still persist on the site even though our other records (four) were from the mid-1990s and surveys in 2008-2009 (Barbour 2009, p. 12) had failed to locate pinesnakes at this site with the notation that suitable habitat existed.
We corroborated our value of minimum reserve area (discussed in “Criteria Used To Identify Critical Habitat”, below) using a population size of 50 individuals, as this number has been previously proposed as a minimum effective population size for many vertebrate species (Franklin 1980, p. 147). Similar to a method used for Florida pinesnakes (
The lands in this zone encompass a large percentage of the artillery ranges on the installation; therefore, they are prone to regular range fires that maintain it as highly suitable black pinesnake habitat. While evaluating this area, we determined that because it would continue to be maintained as suitable pinesnake habitat due to the range fires, and because the Service has discretion in removing lands from critical habitat when designating them would impact national security and homeland security, that the removal of these lands was appropriate. Some of these lands overlap with those exempted under section 4(a)(3), so the total area in Unit 3 on Camp Shelby that is either excluded or exempted from critical habitat designation with this final critical habitat designation is 18,901 ac (7,649 ha). As to the remaining area, the Service does not expect critical habitat to affect ongoing military operations over and above the existing protections resulting from the listing of the subspecies.
Because the entire critical habitat unit is considered occupied by the black pinesnake, the Service anticipates that impacts from critical habitat will be limited to administrative impacts (IEc 2014). Any additional incremental impacts to military activities are not expected because areas we designated as black pinesnake critical habitat areas on Camp Shelby are within the same habitats shared by other listed species (
Section 4(b)(5)(A)(ii) of the Act requires the Service to give actual notice of any designation of lands that are considered to be critical habitat to the appropriate agency of each State in which the species is believed to occur, and invite each such agency to comment on the proposed regulation. Only the Louisiana Department of Wildlife and Fisheries (LDWF) provided comment specifically on the proposed critical habitat designation, stating that it did not support designation of critical habitat in Louisiana due to a lack of current occurrence data for the black pinesnake, which was consistent with our proposed designation.
Although the Act does not provide for any distinction between landownerships in those areas that meet the definition of critical habitat, it does allow the Secretary to exclude specific areas from the final critical habitat designation if the benefits of excluding it outweigh the benefits of including it in critical habitat, unless that exclusion would result in the extinction of the species. In this instance, no private lands were excluded from the designation, although lands on Camp Shelby were excluded due to national security impacts.
The designation of critical habitat on private land has no impact on individual landowner activities unless they involve Federal funding, permits or activities. Critical habitat designation does not affect land ownership or establish a refuge, reserve, preserve or other conservation area. Critical habitat designation informs landowners and the public of which specific areas are important to black pinesnake conservation and recovery, but landowners will not be required to convert their land to longleaf pine forests or to conduct black pinesnake monitoring as a result of this designation.
Referencing the latter part of the comment about a decrease in longleaf pine acres planted, there have been several fluctuations in numbers of acres in longleaf pine planted on private lands since the black pinesnake was listed under the Act in 2015 (80 FR 60486). There was a 125% increase in longleaf establishment acres on private lands in Mississippi in the year following the pinesnake being listed (2016 versus 2015; America's Longleaf Restoration Initiative), and although acreages reported in 2017 and 2018 were back down close to those reported in 2015, there are many variables affecting fluctuations in acreage of longleaf pine trees planted year-to-year. These variables include saturated markets, reduced capacity of various agencies (
However, the analysis also describes the uncertainty associated with this upper bound and several factors that suggest the actual magnitude of the portion of the effect attributable to the critical habitat designation will be lower. These factors include the community's experience with the Act, understanding of the degree to which future section 7 consultations could delay or affect land use activities, and substantial baseline conservation already in place for the black pinesnake due to its listed status, as well as protections for the federally listed gopher tortoise, red-cockaded woodpecker, and dusky gopher frog.
Our economic analysis concluded that financial impacts from critical habitat for the pinesnake are likely limited, borne primarily by the Service and Federal action agencies. Although it is possible (see response to
We reviewed the above-described site-specific comments related to critical habitat for this subspecies, completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act and for exemptions under section 4(a)(3) of the Act, reviewed our analysis of the PBFs essential to the long-term conservation of the black pinesnake, reviewed the application of our criteria for identifying critical habitat across the range of this subspecies to refine our designation, and completed the economic analysis of the designation as proposed. This final rule incorporates changes to our proposed critical habitat rule based on the comments that we received, and have responded to in this document, and considers efforts to conserve the black pinesnake.
As a result, our final designation of critical habitat reflects the following changes from the March 11, 2015, proposed rule (80 FR 12846) and the October 11, 2018, revisions to the proposed designation (83 FR 51418):
• Primary Constituent Elements (PCEs) are referred to as Physical and Biological Features (PBFs) in our final rule.
• Based on information we received from peer reviewers, we removed the
• The habitat management activity of clearcutting was removed from the list of activities seen as threats to the black pinesnake and its habitat. While we recognize that some clearcut harvesting may have a negative impact on black pinesnake habitat, at other times it is a necessary management tool to restore a forest to a condition suitable for pinesnakes and other native wildlife. This is consistent with the language in our final listing rule.
• We have refined our description of PBF 1 to remove the characterization of “open canopy” pine forest as a specific percentage and have instead relied on the percentage metrics for mid-story and groundcover (within an open-canopied pine forest) to best define the habitat structure important to the subspecies.
• We have revised PBF 2 and removed the reference to topographic features, specifically the elevation threshold of 150 ft (46 m) or greater. PBF 2 now only references refugia sites since the elevation threshold was determined to be more of an observation rather than a habitat requirement.
• Throughout the descriptions of PBFs, we removed specific characterization of these features within longleaf pine forests. Although longleaf pine is the preferred canopy species for the long-term conservation of the black pinesnake (see the final listing rule published in the
• Within Unit 3 (Camp Shelby), we excluded the Camp Shelby Impact Area (4,647 ac [1,880 ha]), as proposed in our original critical habitat rule (80 FR 12846, March 11, 2015), and upon further assessment of this area excluded additional acreage known as the Camp Shelby Impact Area Buffer Zone for a total exclusion of 14,862 ac (6,014 ha) of Camp Shelby lands under section 4(b)(2) of the Act (see
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the species status assessment (SSA) document and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
On August 27, 2019, we published a final rule in the
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features (PBFs) that are essential to the conservation of the species and which may require special management considerations or protection. For example, physical features might include gravel of a particular size required for spawning, alkali soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic needed to support the life history of the species. In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
We derive the specific PBFs essential for the black pinesnake from studies of the subspecies and other similar species' habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the
Telemetry studies and previous records indicate that the black pinesnake prefers an open canopy, a reduced midstory, and a dense herbaceous cover typical of a classic longleaf pine forest (see the “Habitat” and “Life History” sections of the final listing rule). An abundant herbaceous groundcover is typical of those areas characterized by a more open-canopied condition, as a byproduct of the increased amount of sunlight reaching the forest floor. As an ectotherm (an organism that regulates its body temperature (
Studies of black pinesnakes have supported this subspecies' preference for a relatively open canopy and reduced mid-story shrub cover (Duran 1998b, pp. 4-8; Baxley
Longleaf pine ecosystems have historically been maintained with fire, as it is necessary for exposing bare mineral soil for seed germination, increasing nutrient content in forage species, and reducing competition of hardwood species (DeBerry and Pashley 2008, pp. 20-21). Prescribed burning during the growing season (late spring to early summer) is more effective at controlling mid-story hardwood vegetation, thereby promoting a more abundant herbaceous groundcover; however, some understory plants respond positively to fires in the dormant season as well (Knapp
A broad distribution of home ranges has been estimated from various telemetry studies, from a mean Minimum Convex Polygon (MCP) (a mathematical tool for determining home range boundaries by connecting the outer location points) value of 106 acres (ac) (43 hectares (ha)) for adult female pinesnakes (Duran 1998a, p. 19) to a mean MCP value of 551 ac (223 ha) for adult male pinesnakes (Baxley and Qualls 2009, p. 287). The maximum home range reported for an individual black pinesnake in the literature is 979 ac (396 ha) for an adult male, and the maximum distance between consecutive locations in a telemetry study (reported as a straight-line distance) was 1.3 miles (2.1 kilometers) (Baxley and Qualls 2009, pp. 287-288). Examination of MCP areas for black pinesnakes occupying the same general area shows very little overlap of home ranges, potentially providing some evidence for territoriality (Duran 1998a, p. 15) although more research is needed.
The minimum amount of habitat necessary to support a viable black pinesnake population (known as the minimum reserve area) has not previously been determined, and estimating those parameters can be quite challenging, primarily based on the elusive nature of the subspecies (Wilson
We corroborated this value of minimum reserve area using a method previously used for Florida pinesnakes (
For further comparison we investigated the population requirements of another large-bodied, wide-ranging snake with expansive home ranges that is also a longleaf pine ecosystem specialist, the threatened eastern indigo snake (
Black pinesnakes consume a variety of food, including nestling rabbits (
To provide the refugia and food needed to support the rodent prey base of black pinesnakes, the habitat must have an abundant herbaceous groundcover. Bluestem grasses (
Therefore, based on the information above, we identify open-canopied pine forest habitat, historically dominated by longleaf pine and maintained by frequent fires, a reduced midstory (<10 percent), and a diverse and abundant native herbaceous groundcover (>40 percent) to be the PBFs necessary for the conservation of the black pinesnake.
Black pinesnakes spend a majority of their time below ground (Duran 1998a, p. 12; Yager
Rudolph
Therefore, based on the information above, we identify the presence of naturally burned-out or rotted-out pine stumps and their associated root systems within historically longleaf-dominated pine forests, to be a PBF for this subspecies.
Very little information on breeding and egg-laying of wild black pinesnakes is available. Lyman
Since there is only one documented natural black pinesnake nest, it is unknown whether the subspecies exhibits nest site fidelity; however, nest site fidelity has been described for other
In addition to the stump holes and associated root systems commonly used by adult black pinesnakes (Duran 1998a, p. 12; Yager
Appropriate soils have been described for the gopher tortoise and are recognized as one of their key habitat requirements, as they allow for burrow excavation and nest development (Ernst
Therefore, based on the information above, we identify sandy, well-drained soils characteristic of historically longleaf-dominated upland pine forest to be a PBF for this subspecies. These specific soil series and related soil associations have the following characteristics: No flooding or ponding; <15 percent medium and coarse gravel fragments; >60 in (152 cm) depth to seasonal high water table; >60 in (152 cm) depth to the hardpan; textural components equaling >30 percent sand and <35 percent clay; and a slope <15 percent.
We have determined the following PBFs for the black pinesnake:
(1) PBF 1:
(a) An open canopy that sustains a reduced woody mid-story (<10 percent cover) and abundant, diverse, native herbaceous groundcover (at least 40 percent cover); and
(b) Minimum of 5,000 ac (2,023 ha) of mostly unfragmented habitat.
(2) PBF 2:
(3) PBF 3:
(a) No flooding or ponding;
(b) <15 percent medium and coarse gravel fragments;
(c) >60 in (152 cm) depth to seasonal high water table;
(d) >60 in (152 cm) depth to the hardpan;
(e) Textural components equaling >30 percent sand and <35 percent clay; and
(f) A slope <15 percent.
Additional information can be found in the final listing rule and the proposed critical habitat designation for the black pinesnake.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection.
All areas designated as critical habitat require some level of management to address the current and future threats to the black pinesnake and to maintain the PBFs. Special management of the upland longleaf pine forest would be needed to ensure an open canopy, reduced mid-story, and abundant herbaceous groundcover (PBF 1); underground refugia for snakes to occupy (PBF 2); and relatively unfragmented tracts of pine forests (PBF 1).
A detailed discussion of activities affecting the black pinesnake and its habitat can be found in the final listing rule published in the
Management activities that could ameliorate these threats include (but are not limited to): Maintaining critical habitat areas as open pine habitat (preferably longleaf pine); conducting forestry management using frequent prescribed burning (1 to 3 years) with seasonal variability; avoiding intensive site preparation that would disturb or destroy pine stumps or stump holes; avoiding the practice of bedding when planting trees; reducing planting densities to create or maintain an open canopied forest with abundant herbaceous groundcover; maintaining forest underground structure such as gopher tortoise burrows and small mammal burrows; and retaining large tracts of unfragmented pine forest by protecting sites from development and new road construction. More information on the special management considerations for each critical habitat unit is provided in the individual unit descriptions below.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b) we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. As discussed below, we are not designating any areas outside the geographical area occupied by the species because we have determined that occupied areas are sufficient for the conservation of the species.
We began our determination of which areas to designate as critical habitat for the black pinesnake with an assessment of the critical life-history components of the subspecies, as they relate to habitat. We reviewed the available information pertaining to historical and current distributions, life histories, and habitat requirements of this subspecies. We focused on the identification of large tracts of remaining unfragmented open pine habitat in our analysis because they are requisite sites for population survival and conservation and their disappearance in the environment is one of the primary reasons that the black pinesnake is declining. Our sources included surveys, unpublished reports, and peer-reviewed scientific literature prepared by the Alabama Department of Conservation and Natural Resources; Alabama Natural Heritage Program; Mississippi Department of Wildlife, Fisheries, and Parks Natural Heritage Program; and black pinesnake researchers. Other sources are Service data and Geographic Information System (GIS) data (such as species occurrence data, elevation contours, soils, transportation, urban areas, National Wetland Inventory, 2011 National Land Cover Database, aerial imagery, ownership maps, and U.S. Geological Survey (USGS) Terrestrial Ecosystems data).
For estimation of activity ranges of black pinesnakes, we used a modified methodology of establishing species occurrence areas, which was informed by the methodology the New Jersey Department of Environmental Protection (NJDEP) uses for northern pinesnakes. These areas are derived by placing circular buffers around documented locations, in order to approximate typical activity ranges (NJDFW 2009, p. 17). There are unproven assumptions that underlie this method, such as that pinesnakes have circular activity ranges, and that the occurrence location represents the center of that individual's range; however, given the lack of representative telemetry data for many areas, this is one approach to estimate activity ranges.
We placed circular buffers around recent black pinesnake location points (post-1990) from the sources listed above, with a radius equaling the maximum known movement distance (1.3 miles (2.1 km)) to approximate the activity range of each snake (3,400 ac (1,376 ha)). The 1990 date was used as it coincides with dates chosen by black pinesnake researchers who conducted habitat assessments at what were considered recently and historically occupied locations (Duran and Givens 2001, pp. 5-9). Using GIS, we located all areas where at least two black pinesnake activity ranges overlapped, and identified those as potential populations. Outside of these activity ranges, if the area was forested and met the soils criteria, that area was considered contiguous habitat and included in potential population boundaries.
We identified 11 populations using this method: 6 in Mississippi and 5 in Alabama. These populations were then assessed in regard to impacts from nearby fragmentation sources such as major roads, wetlands and open water, incompatible land use (such as agricultural conversion), and urban development.
Soils determined to be suitable habitat for the gopher tortoise were used as a surrogate to determine suitable soils for the black pinesnake, as these species both occupy deep, sandy soils of upland longleaf pine forest. A team of biologists and soil scientists from the Service and the Natural Resources Conservation Service, with input from staff from the U.S. Forest Service, developed a model to classify soils throughout the gopher
To analyze potential impacts from roads and exclude areas around roads that do not provide quality habitat for the black pinesnake, a transportation layer was used with GIS, specifically examining Class 1 and 2 roads. Class 1 roads are hard-surface highways, including Interstate and U.S. numbered highways, primary State routes, and all controlled access highways; Class 2 roads include secondary State routes, primary county routes, and other highways that connect principal cities and towns. Both of these road classifications have a high probability of causing permanent black pinesnake population fragmentation and were excluded. Population boundaries were buffered at least 100 meters from all Class 1 and 2 roads in order to exclude not just the roadways themselves, but also to exclude the area capturing rights-of-way, residences, and businesses along these major roads. Major wetland areas and streams were avoided in determining population boundaries, and these generally were consistent with changes in elevation. To analyze the fragmentation effects from incompatible land uses (including but not limited to urbanization), recent aerial imagery and the 2011 National Land Cover Database (NLCD) were used. By selecting the evergreen forest layers from NLCD, it was possible to delineate large tracts of remaining pine forested habitat, and concurrent analysis from the aerial imagery further removed areas with agricultural fields, housing developments, and urban areas.
We calculated that the total area covered by two partially overlapping activity ranges (5,000 ac (2,023 ha)) would be considered a minimum population reserve area, as long as the area was not highly fragmented. This is not to say that two snakes are considered a viable population, but that this area estimate should be considered a minimum value. As was discussed in
Once all the above analyses were complete, the level of fragmentation in each population was assessed. If fragmentation within a population boundary limited the suitable habitat to the point where less than 5,000 ac (2,023 ha) of contiguous forested habitat was available, that population was no longer considered potentially viable and was removed from critical habitat consideration.
Using the above-described process, 8 of the 11 populations examined met the criteria for consideration as critical habitat: all 6 of the populations in Mississippi and 2 of the 5 in Alabama. Five of the six Mississippi populations occur at least partially on the De Soto National Forest, the largest of which is located almost exclusively on the Camp Shelby Special Use Permit area, and the sixth occurs primarily on the Marion County Wildlife Management Area (WMA). All six populations meet the criteria of appropriate size; contiguous, pine-dominated, forested habitat; soils; and minimal fragmentation. The Service has determined that these sites contain the PBFs that are essential for the conservation of the black pinesnake.
Both of the Alabama populations that met the criteria to be considered critical habitat are located in Clarke County and include a population primarily located on lands previously identified as the Scotch WMA and a population located at the Fred T. Stimpson SOA. SOAs are State-owned properties, typically smaller than Wildlife Management Areas in acreage, that offer a different hunting format to reduce pressure and increase the quality of the hunt. Three other populations, in Washington and Mobile Counties, each have two black pinesnake records from the last 25 years, but due to urban and agricultural fragmentation no longer contain the PBFs.
The critical habitat designation does not include all forested areas known to have been occupied by the subspecies historically; instead, it focuses on occupied areas within the current range that have retained the necessary PBFs that will allow for the maintenance and expansion of existing populations. Further, as discussed in the Critical Habitat section above, we recognize that designation of critical habitat might not include all habitat areas that we may eventually determine are necessary for the recovery of the subspecies and that for this reason, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not promote the recovery of the subspecies.
We are not designating any areas outside the geographical areas occupied by the black pinesnake at the time of listing. The units within the area occupied by the subspecies at the time of listing are representative of the current geographical range and include both the core population areas of black pinesnakes, as well as remaining peripheral population areas. We determined that there was sufficient area for the conservation of the subspecies within the occupied areas determined above.
When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for the black pinesnake. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands; nor all lands covered under the Camp Shelby Integrated Natural Resources Management Plan (INRMP), which are exempted from critical habitat designation (see
Eight units, one of which was divided into two subunits, were designated. All eight units contain all of the physical or biological features necessary to support life-history functions essential to the conservation of the black pine snake, namely: Unfragmented tracts of pine forest of sufficient size and structure (PBF 1); suitable underground refugia sites (PBF 2); and deep, sandy soils (PBF 3).
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to
We are designating approximately 324,679 ac (131,393 ha) in eight units (one unit divided into two subunits) as critical habitat for the black pinesnake. Those eight units are: (1) Ovett, (2) Piney Woods Creek, (3) Cypress Creek, (4A) Maxie, (4B) Maxie, (5) Howison, (6) Marion County WMA, (7) Jones Branch, and (8) Fred T. Stimpson SOA.
Table 1 provides the location, approximate area, and land ownership of each critical habitat unit.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the black pinesnake, below.
Unit 1 encompasses approximately 47,179 ac (19,093 ha) on Federal and private land in Jones and Wayne Counties, Mississippi. This unit is located between the Bogue Homo River and Thompson Creek, is approximately 2.0 mi (3.2 km) northeast of Ovett, and is mostly within the boundary of the Chickasawhay Ranger District of the De Soto National Forest (DNF). It is located just east of State Highway 15, west of Salem Road, north of the intersection of State Highway 15 and County Road 205, and approximately 1.3 mi (2.1 km) south of the intersection of Freedom Road and Forest Road.
The majority of this unit (40,639 ac (16,446 ha)) is on Federal lands within the DNF, with the remainder of the unit (6,540 ac (2,647 ha)) on private land.
There are records of eight black pinesnakes located within Unit 1 since 1990. Many of these are located on the higher ridges within the unit boundary, but are within close enough proximity to each other (with contiguous habitat between) for all of them to belong to the same breeding population. Habitat management on the section of this unit owned by the U.S. Forest Service (86 percent) is performed under the Revised Land and Resource Management Plan for National Forests in Mississippi (U.S. Forest Service 2014, 207 pp.). This forest plan contains objectives for the threatened gopher tortoise and endangered red-cockaded woodpecker (
Threats to the black pinesnake and its habitat in Unit 1 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance such as disking, bedding, or whole root ball stump removal; land use conversion and fragmentation, primarily urban development and conversion to agriculture and pine plantations; utility easements; road mortality; and encroachment of invasive species.
Unit 2 encompasses approximately 22,389 ac (9,061 ha) on Federal and private land located primarily in Wayne County, Mississippi, with a small portion extending into Perry County, Mississippi. This unit is located between Thompson Creek and Piney Woods Creek, is approximately 4.0 mi (6.4 km) west of Clara, and is mostly within the boundary of the Chickasawhay Ranger District of the DNF. It is located 2.3 mi (3.7 km) north of the intersection of Camp Eight Road and Will Best Road, and 0.4 mi (0.6 km) southeast of the intersection of Clara-Strengthford Road and Clara-Strengthford Reservoir Road.
The majority of this unit (17,744 ac (7,181 ha)) is on Federal lands within the DNF, with the remainder of the Unit (4,645 ac (1,880 ha)) on private land.
There are records of five black pinesnakes located within Unit 2 since 1990. Many of these are located on the higher ridges within the unit boundary, but are within close enough proximity to each other (with contiguous habitat between) for all of them to belong to the same breeding population. Habitat management on the section of this unit owned by the U.S. Forest Service (79 percent) is performed under the Revised Land and Resource Management Plan for National Forests in Mississippi (U.S. Forest Service 2014, 207 pp.) (see discussion under Unit 1, above).
Threats to the black pinesnake and its habitat in Unit 2 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance
Unit 3 is the largest of all the units, encompassing approximately 131,440 ac (53,192 ha) on Federal, State, and private land in Forrest, Perry, George, and Greene Counties, Mississippi. This unit is located north of Black Creek (Cypress Creek runs into part of the unit, but is not a barrier to gene flow), and is approximately 3.0 mi (4.8 km) east of McLaurin, 1.8 mi (2.9 km) south of New Augusta, and 4.6 mi (7.4 km) northwest of Benndale. Unit 3 is mostly within the installation boundary of Camp Shelby on the De Soto Ranger District of the DNF, and is bordered by State Highways 26 and 57 and U.S. Highways 49 and 98.
The majority of this unit (115,315 ac (46,666 ha)) is on Federal lands, with another 1,768 ac (716 ha) on State lands; and the remainder (14,357 ac (5,810 ha)) on private land. This unit contains 4,054 ac (1,641 ha) of State- and Department of Defense (DoD)-owned lands that are covered under the Camp Shelby INRMP, which are exempted from critical habitat designation (see
There are over 100 records of black pinesnakes located within Unit 3 since 2004, as compiled by The Nature Conservancy's Camp Shelby Field Office. Many of these are located on the higher ridges within the unit boundary, but are within close enough proximity to each other (with contiguous habitat between) for all of them to belong to the same breeding population. Habitat management on the section of this unit owned by the U.S. Forest Service is performed under the Revised Land and Resource Management Plan for National Forests in Mississippi (U.S. Forest Service 2014, 207 pp.). In addition to containing objectives for the threatened gopher tortoise and endangered red-cockaded woodpecker, both of which occur on Unit 3 (see discussion under Unit 1, above), it also includes objectives for the endangered dusky gopher frog (
Threats to the black pinesnake and its habitat in Unit 3 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance such as disking, bedding, or whole root ball stump removal; land use conversion and fragmentation, primarily urban development and conversion to agriculture and pine plantations; gas, water, electrical power, and sewer easements; road mortality; and encroachment of invasive species.
Unit 4 encompasses a total of approximately 59,528 ac (24,090 ha) on Federal and private land in Forrest, Perry, and Stone Counties, Mississippi. Located south of Black Creek and 3.0 mi (4.8 km) north of Wiggins, this unit is bisected into two subunits (4A and 4B) by U.S. Highway 49. Both subunits are buffered from U.S. Highway 49 by at least 328 ft (100 m). The close proximity of black pinesnake records with adjacent suitable habitat would have made Unit 4 a single unit following the criteria for designation of critical habitat if not for the presence of U.S. Highway 49, which is a significant source of fragmentation and is potentially restricting gene flow between the two subunits.
Subunit 4A is located between Double Branch and U.S. Highway 49 in Forrest and Stone Counties, Mississippi. It is 0.3 mi (4.8 km) northwest of Bond and 0.5 mi (0.8 km) southwest of Maxie, and is located mostly within the boundary of the De Soto Ranger District of the DNF. Most of this subunit (8,914 ac (3,607 ha)) is on Federal lands within the DNF, with the remainder of the subunit (6,303 ac (2,551 ha)) on private land. There are records of two black pinesnakes located within subunit 4A since 1990. These are located on the eastern edge of the subunit, but have contiguous habitat with the rest of the area.
Subunit 4B is located between Black Creek and U.S. Highway 49 in Forrest, Perry, and Stone Counties, Mississippi. It is directly adjacent to Maxie on the western border, and is located mostly within the boundary of the De Soto Ranger District of the DNF. Most of this subunit (28,232 ac (11,425 ha)) is on Federal lands within the DNF, with the remainder of the subunit (16,079 ac (6,507 ha)) on private land. There are records of four black pinesnakes located within subunit 4B since 1990. These are located on the higher ridges of the subunit, but have contiguous habitat with the rest of the area.
Habitat management on the section of these subunits owned by the U.S. Forest Service (86 percent) is performed under the Revised Land and Resource Management Plan for National Forests in Mississippi (U.S. Forest Service 2014, 207 pp.). This forest plan contains objectives for the threatened gopher tortoise, which occurs on both subunits of Unit 4. These objectives include restoring and opening up canopy conditions in areas with sandy soils with 1- to 3-year fire intervals; however, the management practices outlined in this plan do not specifically target the habitat requirements of the black pinesnake. Subunit 4B also contains two units designated as critical habitat for the endangered dusky gopher frog, totaling 598.6 ac (242.2 ha) (see discussion of Unit 3, above, for more about forest plan objectives for the gopher frog).
Threats to the black pinesnake and its habitat in Unit 4 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance such as disking, bedding, or whole root ball stump removal; land use conversion and fragmentation, primarily urban development and conversion to agriculture and pine plantations; gas, water, electrical power, and sewer easements; road mortality; and encroachment of invasive species.
Unit 5 encompasses approximately 12,949 ac (5,240 ha) on Federal and private land in Harrison and Stone Counties, Mississippi. This unit is located between Tuxachanie Creek and U.S. Highway 49, approximately 0.4 mi (0.6 km) east of Howison and 1.3 mi (2 km) southeast of McHenry, and this unit is mostly within the boundary of the De Soto Ranger District of the DNF. The unit is bordered on the northern edge by E. McHenry Road and on the western edge by U.S. Highway 49 (buffered from the highway by at least 328 ft (100 m)).
The majority of this unit (9,430 ac (3,816 ha)) is on Federal lands within the DNF, with the remainder of the unit
There are records of seven black pinesnakes located within Unit 5 since 1990. Many of these are located on the higher ridges within the unit boundary, but are within close enough proximity of each other (with contiguous habitat between) for all of them to belong to the same breeding population. Habitat management on the section of this unit owned by the U.S. Forest Service is performed under the Revised Land and Resource Management Plan for National Forests in Mississippi (U.S. Forest Service 2014, 207 pp.). This forest plan contains objectives for the threatened gopher tortoise, which occurs on Unit 5 (see discussion for Unit 4, above).
Threats to the black pinesnake and its habitat in Unit 5 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance such as disking, bedding, or whole root ball stump removal; land use conversion and fragmentation, primarily urban development and conversion to agriculture and pine plantations; gas, water, electrical power, and sewer easements; road mortality; and encroachment of invasive species.
Unit 6 encompasses approximately 11,856 ac (4,798 ha) on State and private land in Marion County, Mississippi. This unit is located between the Upper Little Creek and Lower Little Creek, 7.0 mi (11 km) southeast of Columbia. It is located 0.8 mi (1.3 km) north of State Highway 13, and 2.6 mi (4.2 km) south of U.S. Highway 98. Approximately half of Unit 6 is within the Marion County WMA.
The unit is divided between State lands (5,587 ac (2,261 ha)) and private lands (6,270 ac (2,537 ha)).
There are records of two black pinesnakes located within Unit 6 since 1990. These are both located on the WMA, although there is contiguous suitable habitat across the remainder of the unit. Regulations on the WMA include prohibitions of wildlife harassment; however, there are no habitat management activities occurring at the WMA that specifically target the habitat requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 6 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance such as disking, bedding, or whole root ball stump removal; land use conversion and fragmentation, primarily urban development and conversion to agriculture and pine plantations; gas, water, electrical power, and sewer easements; road mortality; and encroachment of invasive species.
Unit 7 encompasses approximately 33,395 ac (13,515 ha) of private land in Clarke County, Alabama. This unit is bordered by Salitpa Creek to the south, Tallahatta Creek to the north, and Harris Creek to the west. It is located approximately 2.7 mi (4.3 km) southeast of Campbell and 1.1 mi (1.8 km) north of the intersection of Old Mill Pond Road and Reedy Branch Road.
There are records of five black pinesnakes located within Unit 7 since 1994, including one as recently as 2015. Many of these are located on the higher ridges within the unit boundary, but are within close enough proximity to each other (with contiguous habitat between) for all of them to belong to the same breeding population. Most of this unit is managed by Scotch Land Management, LLC; however, there are no management practices on this unit that specifically target the habitat requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 7 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance such as disking, bedding, or whole root ball stump removal; land use conversion and fragmentation, primarily urban development and conversion to agriculture and pine plantations; gas, water, electrical power, and sewer easements; road mortality; and encroachment of invasive species.
Unit 8 encompasses approximately 5,943 ac (2,405 ha) on State and private land in Clarke County, Alabama. This unit is located between Sand Hill Creek and the Tombigbee River, is approximately 1 mi (1.6 km) north of Carlton, and is 1.0 mi (1.6 km) south of the intersection of County Road 15 and Christian Vall Road. The southern two-thirds of this unit is on the Fred T. Stimpson SOA. Over 60 percent of the unit (3,843 ac (1,555 ha)) is on State lands, with the remainder of the unit (2,100 ac (850 ha)) on private land.
There are records of two black pinesnakes located within Unit 8 since 1992. These are both located on the SOA, although there is contiguous suitable habitat across the remainder of the unit. There are no habitat management practices outlined at the site that specifically target the habitat requirements of the black pinesnake.
Threats to the black pinesnake and its habitat in Unit 8 that may require special management considerations or protection of the PBFs include: Fire suppression and low fire frequencies; detrimental forestry practices that could cause significant subsurface disturbance such as disking, bedding, or whole root ball stump removal; land use conversion and fragmentation, primarily urban development and conversion to agriculture and pine plantations; gas, water, electrical power, and sewer easements; road mortality; and encroachment of invasive species.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species listed under the Act or result in the destruction or adverse modification of critical habitat.
We published a final regulation with a new definition of destruction or adverse modification on August 27, 2019 (84 FR 45020). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of the black pinesnake. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the black pinesnake. These activities include, but are not limited to:
(1) Forestry management actions in pine habitat that would significantly alter the suitability of black pinesnake habitat. Such activities include, but are not limited to: Silvicultural activities such as disking and bedding that involve significant subsurface disturbance, or stumping involving whole root ball removal; conversion to densely stocked pine plantations; and chemical applications (pesticides or herbicides) that are either unlawful or that are not directly aimed at hazardous fuels reduction, mid-story hardwood control, or noxious weed control. These activities could destroy or alter the pine forest habitats and refugia necessary for the growth and development of black pinesnakes, and may reduce populations of the snake's primary prey (rodents), either through direct extermination or through loss of the forage necessary to sustain the prey base.
(2) Actions that would significantly fragment black pinesnake populations. Such activities include, but are not limited to: Conversion of timber land to other uses (agricultural, urban/residential development) and construction of new structures. These activities could lead to degradation or elimination of forest habitat, limit or prevent breeding opportunities between black pinesnakes, limit access to familiar refugia or nesting sites within individual home ranges, and increase the frequency of road mortality from road crossings.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides that the Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.
We consult with the military on the development and implementation of INRMPs for installations with listed
Camp Shelby is located in Forrest, George, and Perry Counties, near the town of Hattiesburg, Mississippi, and contains habitat with features essential to the conservation of the black pinesnake. The primary mission of Camp Shelby is to train U.S. Army soldiers (National Guard and Reserve) for combat and combat-related missions. Training activities at Camp Shelby primarily include troop bivouacking, wheeled vehicle maneuvers, artillery firing exercises, and tank training maneuvers.
Camp Shelby is composed of property belonging in four different categories: Department of Defense (DoD), State, United States Forest Service (USFS), and private land. The main part of Camp Shelby's training area belongs to the USFS and is operated under a special use permit (permit) from the USFS granted in 2007 for 20 years. The DoD and State lands are managed by the Mississippi Army National Guard (MSARNG) in support of the military mission, and the Camp Shelby INRMP addresses integrative management on these lands only (MSARNG 2014, p. 13). These DoD and State lands, included in the INRMP, with habitat features essential to the conservation of the black pinesnake, total approximately 4,054 ac (1,641 ha). We have examined the INRMP and determined that it outlines conservation measures for the black pinesnake, as well as management plans for important upland habitats at Camp Shelby. Conservation measures outlined in the INRMP for the black pinesnake at Camp Shelby include: Research on life history, habitat requirements, and habitat use; monitoring; prescribed burning and longleaf pine restoration programs, including increasing the frequency of growing season burns, reducing canopy closure and basal area, and restoring the natural fire regime; protecting and maintaining downed deadwood and pine stumps (when not identified as a safety hazard); and implementation of education programs for users of Camp Shelby (geared towards minimizing the negative impacts of vehicular mortality on the black pinesnake and other species) (MSARNG 2014, pp. 92-94). The INRMP will continue to be reviewed annually to monitor the effectiveness of the plan, and be reviewed every 5 years to develop revisions and updates as necessary.
Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the Camp Shelby INRMP and that conservation efforts identified in the INRMP will provide a benefit to the black pinesnake. Therefore, DoD and State lands within this installation, which are covered under the INRMP, are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 4,054 ac (1,641 ha) of habitat in this final critical habitat designation because of this exemption.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection from destruction of adverse modification as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation or the continuation, strengthening, or encouragement of partnerships. In the case of the black pinesnake, the benefits of critical habitat include public awareness of the presence of black pinesnake and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the black pinesnake due to the protection from destruction or adverse modification of critical habitat. Additionally, continued implementation of an ongoing management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
As discussed below, based on the information provided by entities seeking exclusion, as well as additional public comments received, we determined that certain lands were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. Specifically, we are excluding the Camp Shelby Impact Area and the associated buffer zone (14,862 ac [6,014 ha]), located within Unit 3, from designation of critical habitat for the black pinesnake (see discussion under
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis, which, together with our narrative and interpretation of effects, constitutes our draft economic analysis (DEA) of the proposed critical habitat designation and related factors (IEc 2014). The analysis, dated May 2, 2014, was made available for public review from March 11, 2015, through May 11, 2015 (80 FR 12846), and again from October 11, 2018, through November 13, 2018 (83 FR 51418). The DEA addressed probable economic impacts of critical habitat designation for the black pinesnake. Following the close of the comment periods, we reviewed and evaluated all information submitted during the comment periods that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Information relevant to the probable incremental economic impacts of critical habitat designation for the black pinesnake is summarized below and available in the final economic analysis (also referred to below as the screening analysis) for the black pinesnake (IEc 2014a), available at
As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the black pinesnake in the May 2, 2014, IEM we identified probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (U.S. Forest Service); (2) forest management; (3) agriculture; (4) development; (5) silviculture/timber; (6) transportation activities; and (7) utilities. We considered each industry or category individually. Additionally, we considered whether the activities have any Federal involvement. Critical habitat designation does not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the black pinesnake is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the federally threatened subspecies, and consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into that consultation process.
In our IEM, we attempted to clarify the distinction between the effects that would result from the subspecies being listed and those attributable to the critical habitat designation (
The critical habitat designation for the black pinesnake consists of eight units, one of which is divided into two subunits, encompassing approximately 324,679 ac (131,393 ha) in Mississippi and Alabama. Included lands are under Federal, State, and private ownership, and all are within the area occupied by the black pinesnake at the time of listing. Federal land is predominant in Units 1 through 5. Federal lands make up from 58 to 90 percent of the acreage in these units, which account for approximately 68 percent of the total critical habitat acreage. Privately owned land is present in all eight units and ranges from 10 percent to a high of 100 percent in one unit. Private lands account for approximately 29 percent of the total critical habitat acreage. Approximately 14,862 ac (6,014 ha) of the originally proposed critical habitat designation in one unit has been excluded under section 4(b)(2) of the Act due to a national security concern (see
All lands in the critical habitat designation for the black pinesnake are currently occupied by the subspecies. In these areas any actions that may affect the subspecies or its habitat would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the black pinesnake. Therefore, only administrative costs are expected in the critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, we conclude that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.
The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or municipalities. Activities we expect will be subject to consultations that may involve private entities as third parties are residential and commercial development that may occur on private lands; however, cost to private entities within these sectors is expected to be minor as most of the critical habitat is in Federal ownership (68 percent) and only 29 percent of the lands are privately owned. According to a review of consultation records, the additional administrative cost of addressing adverse modification during the section 7 consultation process ranges from approximately $410 to $9,000 per consultation. Based on the project activity identified by relevant action agencies and comparison to the consultation history for species that co-occur or share habitat with the black pinesnake, the number of future formal consultations is likely to be five or fewer in the year immediately following the final designation. In addition, up to 60 informal consultations and five technical assists could occur annually following the designation. Thus, the incremental administrative burden resulting from the designation is likely to be less than $190,000 in this first year, the year with the highest anticipated costs; therefore, the costs would not be significant.
In summary, the probable incremental economic impacts of the black pinesnake critical habitat designation are expected to be limited to additional administrative efforts as well as minor costs of conservation efforts resulting from a small number of future section 7 consultations. This finding is based on the following factors:
(1) All critical habitat is occupied by the subspecies; thus, the presence of the subspecies results in significant baseline protection under the Act.
(2) Project modifications requested by the Service to avoid jeopardy to the subspecies would be the same as those likely to avoid adverse modification of critical habitat.
(3) Critical habitat would be unlikely to increase the number of consultations as a result of the awareness by Federal agencies of the need to consult for the listed subspecies, as well as the past involvement of key action agencies in consultations for co-occurring species.
(4) The designation also receives baseline protection from the presence of two other federally listed species (gopher tortoise and red-cockaded woodpecker) that have habitat needs similar to those of the pinesnake.
(5) The designation also receives baseline protection from overlap with designated critical habitat for the dusky gopher frog.
A supplemental document to the DEA, prepared by IEc (2014b), investigated possible effects on the value of private lands within critical habitat from the public perception that the designation posed restrictions on the use of these lands. Land ownership data suggested that the designation intersected about 65,000 acres of privately owned lands. Due to existing data limitations regarding the probability that such effects will occur and the likely degree to which property values will be incrementally affected by this designation (above and beyond possible perception effects resulting from the presence of co-occurring listed species, including the pinesnake, gopher tortoise, red-cockaded woodpecker, and dusky gopher frog, as well as its critical habitat), we are unable to estimate the magnitude of perception-related costs resulting from this designation.
Based on the above-described consideration of the economic impacts of the critical habitat designation, the Secretary is not exercising his discretion to exclude any areas from this designation of critical habitat for the black pinesnake based on economic impacts.
A copy of the IEM and screening analysis with supporting documents may be obtained by contacting the Mississippi Field Office (see
Section 4(a)(3)(B)(i) of the Act (see discussion above) may not cover all DoD lands or areas that pose potential national-security concerns (
We cannot, however, automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific justification, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.
After review of public comments and additional consideration, we are excluding from critical habitat designation for the black pinesnake the Camp Shelby Joint Forces Training Center Impact Area (Impact Area) and its associated buffer zone, occupying a portion (14,862 ac (1,880 ha)) of Unit 3 in Perry County, Mississippi, under section 4(b)(2) of the Act. In the paragraphs below, we provide a detailed analysis of our decision to exclude this land.
The Impact Area of Camp Shelby Joint Forces Training Center (Camp Shelby) is a 4,647-ac (1,880-ha) area operated by the MSARNG for training and maneuver exercises in an area of the De Soto National Forest within Unit 3 located in Perry County, Mississippi. The MSARNG uses this area under a permit from the U.S. Forest Service, who is the primary landowner and manager within the installation boundary. The Impact Area, which is located in the center of Camp Shelby and in the northern portion of Unit 3, has been used for artillery training for decades. As a result, access of any kind is prohibited in this impact area due to the high risk of encountering unexploded ordnance. Surrounding the impact area is a buffer zone delineated by the following roads: Grapevine Road on the west; South Tank Trail on the south; Red Hill Road on the east; and Davis Range Road on the north. All roads leading into this buffer zone are gated and locked, with restricted public access and only allowed through coordination with Camp Shelby Range Control. This buffer zone (14,862 ac (6,014 ha) including the impact area) contains most of the artillery ranges on the installation; therefore, much of this landscape burns almost annually due to range fires. Portions of the acreage within this area overlap with those lands covered under the Camp Shelby INRMP (see
We are not able to demonstrate any benefit to including this area in the critical habitat designation for the black pinesnake. Access into this area is restricted for human safety and to maintain effective military training; therefore, the educational benefit associated with identifying specific areas as critical habitat as a means to provide the public with areas of potential conservation value is not realized here. Furthermore, because of the restricted access, there are likely no
The benefits of excluding approximately 14,862 ac (6,014 ha) of U.S. Forest Service lands that encompass the Impact Area and its associated buffer zone of Camp Shelby are significant. Foremost, access into this area is restricted due to the high risk of encountering unexploded ordnance and to maintain safety and security of military operations; thus, there is limited opportunity to implement habitat management. However, as stated above, the area experiences frequent fires due to the concentration of artillery ranges there, and this is the preferred management technique for maintaining optimal habitat conditions for the black pinesnake. In addition, the black pinesnake receives secondary conservation benefits from management of adjacent lands for the threatened gopher tortoise. Lands within the Impact Area and its associated buffer zone encompass a large percentage of the area used for artillery training on Camp Shelby, providing soldiers with essential combat skills that they use on the battlefield. We believe that excluding these U.S. Forest Service lands on Camp Shelby from critical habitat designation would alleviate any potential impacts that a designation of critical habitat could have on MSARNG and the military's ability to maintain national security.
Though access to the Impact Area and its associated buffer zone is restricted, an analysis of GIS and aerial imagery determined that this area contains the physical and biological features essential to the conservation of the black pinesnake, thereby meeting the definition of critical habitat under the Act. This area is also contiguous with other critical habitat with known occurrences for the black pinesnake. In making our decision to exclude the Impact Area and its associated buffer zone, we considered several factors: Restricted access due to a human safety issue; the apparent maintenance of physical and biological factors essential to the conservation of the subspecies from frequent burning due to the nature of the artillery ranges in the area; protection from habitat loss associated with land conversion; and potential impacts to national security associated with a critical habitat designation. We determined there are significant benefits to excluding these lands from critical habitat designation and were unable to demonstrate a benefit to including these lands in the designation. Therefore, we have determined that the benefits of exclusion of approximately 14,862 ac (6,014 ha) of the Impact Area and its associated buffer zone of Camp Shelby from the critical habitat designation outweigh the benefits of including these lands.
The exclusion of this portion (14,862 ac (6,014 ha)) from the total critical habitat designation in Unit 3 (135,494 ac (54,833 ha)) will have minimal to no adverse effect on the subspecies. Adjacent lands contain habitat for the black pinesnake and are part of the designation. Maintenance of appropriate habitat for the black pinesnake with frequent fires is likely to continue in this area due to the use of this area for artillery training. The jeopardy standard of section 7 of the Act and routine implementation of conservation measures through the section 7 process provide additional assurances that the subspecies will not become extinct as a result of this exclusion. Thus, it is our determination that the exclusion of the Camp Shelby Impact Area and its associated buffer zone lands from the final designation of critical habitat for the black pinesnake will not result in the extinction of the subspecies.
Based on this analysis, under section 4(b)(2) of the Act, the Secretary has exercised his discretion to exclude the Camp Shelby Impact Area and its associated buffer zone within Unit 3 from the final critical habitat designation as a result of impacts to national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this final rule, we have determined that there are currently no permitted conservation plans or other non-permitted conservation agreements or partnerships for the black pinesnake, and the final designation does not include any tribal lands or tribal trust resources. We anticipate no impact on tribal lands, partnerships, permitted or non-permitted plans or agreements from this critical habitat designation. Accordingly, the Secretary is not exercising his discretion to exclude any areas from this final designation based on other relevant impacts.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule is not an E.O. 13771 (“Reducing Regulation and Controlling Regulatory Costs”) (82 FR 9339, February 3, 2017) regulatory action because this rule is not significant under E.O. 12866.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that the final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration.
The economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with black pinesnake conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate
(2) We do not believe that this rule will significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the black pinesnake in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of critical habitat for the black pinesnake does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this rule does not have significant federalism effects. A federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in Alabama and Mississippi. We did not receive written comments from Alabama or Mississippi specifically on the critical habitat designation. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the National Government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the black pinesnake. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the
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 determined that no tribal lands are affected by the designation.
A complete list of all references cited is available on the internet at
The primary authors of this rulemaking are the staff members of the Mississippi Field Office.
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; 4201-4245, unless otherwise noted.
(h) * * *
(c) * * *
(1) Critical habitat units are depicted for Forrest, George, Greene, Harrison, Jones, Marion, Perry, Stone, and Wayne Counties, Mississippi, and Clarke County, Alabama, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of black pinesnake consist of the following components:
(i)
(A) An open canopy that sustains a reduced woody mid-story (<10 percent cover) and abundant, diverse, native herbaceous groundcover (at least 40 percent cover); and
(B) Minimum of 5,000 ac (2,023 ha) of mostly unfragmented habitat.
(ii)
(iii)
(A) No flooding or ponding;
(B) <15 percent medium and coarse gravel fragments;
(C) >60 in (152 cm) depth to seasonal high water table;
(D) >60 in (152 cm) depth to the hardpan;
(E) Textural components equaling >30 percent sand and <35 percent clay; and
(F) A slope <15 percent.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on March 27, 2020. In addition, State and Department of Defense lands covered under the Camp Shelby Integrated Natural Resources Management Plan (INRMP) are not considered critical habitat in Unit 3; nor are U.S. Forest Service lands within the Camp Shelby Impact Area Buffer Zone.
(4)
(5)
(6) Unit 1: Ovett—Jones and Wayne Counties, Mississippi.
(i) Unit 1 encompasses approximately 47,179 ac (19,093 ha) on Federal and private land in Jones and Wayne Counties, Mississippi. The majority of this unit (40,639 ac (16,446 ha)) is on Federal lands within the De Soto National Forest, with the remainder of the unit (6,540 ac (2,647 ha)) on private land. This unit is located between the Bogue Homo River and Thompson Creek, is approximately 2.0 mi (3.2 km) northeast of Ovett, and is mostly within the boundary of the Chickasawhay Ranger District of the De Soto National Forest. It is located just east of State Highway 15, west of Salem Road, north of the intersection of State Highway 15 and County Road 205, and approximately 1.3 mi (2.1 km) south of
(ii) Map of Units 1 (Ovett) and 2 (Piney Woods Creek) follows:
(7) Unit 2: Piney Woods Creek—Perry and Wayne Counties, Mississippi.
(i) Unit 2 encompasses approximately 22,389 ac (9,061 ha) on Federal and private land located primarily in Wayne County, Mississippi, with a small portion extending into Perry County, Mississippi. The majority of this unit (17,744 ac (7,181 ha)) is on Federal lands within the De Soto National Forest, with the remainder of the Unit (4,645 ac (1,880 ha)) on private land. This unit is located between Thompson Creek and Piney Woods Creek, is approximately 4.0 mi (6.4 km) west of Clara, and is mostly within the boundary of the Chickasawhay Ranger District of the De Soto National Forest. It is located 2.3 mi (3.7 km) north of the intersection of Camp Eight Road and Will Best Road, and 0.4 mi (0.6 km) southeast of the intersection of Clara-Strengthford Road and Clara-Strengthford Reservoir Road.
(ii) Map of Unit 2 (Piney Woods Creek) is provided at paragraph (6)(ii) of this entry.
(8) Unit 3: Cypress Creek—Greene, George, Forrest, and Perry Counties, Mississippi.
(i) This unit is located north of Black Creek (Cypress Creek runs into part of the unit, but is not a barrier to gene flow), and is approximately 3.0 mi (4.8 km) east of McLaurin, 1.8 mi (2.9 km) south of New Augusta, and 4.6 mi (7.4 km) northwest of Benndale. Unit 3 is mostly within the installation boundary of Camp Shelby on the De Soto Ranger District of the De Soto National Forest, and is bordered by State Highways 26 and 57 and U.S. Highways 49 and 98. The majority of this unit (115,315 ac (46,666 ha)) is on Federal lands, with another 1,768 ac (716 ha) on State lands, and the remainder (14,357 ac (5,810 ha)) on private land. This unit contains 4,054 ac (1,641 ha) of State- and Department of Defense (DoD)-owned lands (covered under the Camp Shelby INRMP) that are exempted from critical habitat designation; and 14,862 ac (6,014 ha) of U.S. Forest Service-owned lands excluded from critical habitat designation.
(ii) Map of Units 3 (Cypress Creek) and 4 (Maxie) follows:
(9) Unit 4: Maxie—Forrest, Perry, and Stone Counties, Mississippi.
(i) Subunit 4A—Forrest and Stone Counties, Mississippi. Subunit 4A is located between Double Branch and U.S. Highway 49 in Forrest and Stone Counties, Mississippi. It is 0.3 mi (4.8 km) northwest of Bond and 0.5 mi (0.8 km) southwest of Maxie, and is located mostly within the boundary of the De Soto Ranger District of the De Soto National Forest. Most of this subunit (8,914 ac (3,607 ha)) is on Federal lands within the De Soto National Forest, with the remainder of the subunit (6,303 ac (2,551 ha)) on private land.
(ii) Subunit 4B—Forrest, Perry, and Stone Counties, Mississippi. Subunit 4B is located between Black Creek and U.S. Highway 49 in Forrest, Perry, and Stone Counties, Mississippi. It is directly adjacent to Maxie on the western border, and is located mostly within the boundary of the De Soto Ranger District of the De Soto National Forest. Most of this subunit (28,232 ac (11,425 ha)) is on Federal lands within the De Soto National Forest, with the remainder of the subunit (16,079 ac (6,507 ha)) on private land.
(iii) Map of Unit 4 (Maxie) is provided at paragraph (8)(ii) of this entry.
(10) Unit 5: Howison—Harrison and Stone Counties, Mississippi.
(i) Unit 5 encompasses approximately 12,949 ac (5,240 ha) on Federal and private land in Harrison and Stone Counties, Mississippi. The majority of this unit (9,430 ac (3,816 ha)) is on Federal lands within the De Soto National Forest, with the remainder of the unit on private lands (3,519 ac (1,424 ha)). This unit is located between Tuxachanie Creek and U.S. Highway 49, approximately 0.4 mi (0.6 km) east of Howison and 1.3 mi (2 km) southeast of McHenry. The unit is bordered on the northern edge by E. McHenry Road and on the western edge by U.S. Highway 49 (buffered from the highway by at least 328 ft (100 m)).
(ii) Map of Unit 5 (Howison) follows:
(11) Unit 6: Marion County Wildlife Management Area (WMA)—Marion County, Mississippi.
(i) Unit 6 encompasses approximately 11,856 ac (4,798 ha) on State and private land in Marion County, Mississippi. The unit is divided between State lands (5,587 ac (2,261 ha)) and private lands (6,270 ac (2,537 ha)). This unit is located between the Upper Little Creek and Lower Little Creek, 7.0 mi (11 km) southeast of Columbia. It is located 0.8 mi (1.3 km) north of State Highway 13, and 2.6 mi (4.2 km) south of U.S. Highway 98. Approximately half of Unit 6 is within the Marion County Wildlife Management Area.
(ii) Map of Unit 6 (Marion County WMA) follows:
(12) Unit 7: Jones Branch—Clarke County, Alabama.
(i) Unit 7 encompasses approximately 33,395 ac (13,515 ha) of private land in Clarke County, Alabama. This unit is bordered by Salitpa Creek to the south, Tallahatta Creek to the north, and Harris Creek to the west. It is located approximately 2.7 mi (4.3 km) southeast of Campbell and 1.1 mi (1.8 km) north of the intersection of Old Mill Pond Road and Reedy Branch Road.
(ii) Map of Unit 7 (Jones Branch) follows:
(13) Unit 8: Fred T. Stimpson Special Opportunity Area (SOA)—Clarke County, Alabama.
(i) Unit 8 encompasses approximately 5,943 ac (2,405 ha) on State and private land in Clarke County, Alabama. Over 60 percent of the unit (3,843 ac (1,555 ha)) is on State lands, with the remainder of the unit (2,100 ac (850 ha)) on private land. This unit is located between Sand Hill Creek and the Tombigbee River, is approximately 1 mi (1.6 km) north of Carlton, and is 1.0 mi (1.6 km) south of the intersection of County Road 15 and Christian Vall Road. The southern two-thirds of this unit is on the Fred T. Stimpson SOA.
(ii) Map of Unit 8 (Fred T. Stimpson SOA) follows:
(a) implement the relevant authorities of subtitle J of the Water Infrastructure Improvements for the Nation Act (Public Law 114-322), which include provisions focused on (1) developing water storage, (2) capturing more water during storm events, and (3) giving agricultural and municipal water users more regulatory certainty;
(b) fully implement, with respect to future agency actions, recent Administration improvements to management of programs established pursuant to the Endangered Species Act of 1973 (Public Law 93-205); and
(c) provide quarterly updates to the Chair of the Council on Environmental Quality and, at the request of other components of the Executive Office of the President, to each such component, regarding progress in carrying out sections 2(a) and (b) of this memorandum.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Secretary of the Interior is hereby authorized and directed to publish this memorandum in the