Rural Housing Service
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Air Force Department
Engineers Corps
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
Federal Aviation Administration
Pipeline and Hazardous Materials Safety Administration
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Board of Governors of the Federal Reserve System (Board).
Interim final rule with request for comments.
In light of recent disruptions in economic conditions caused by the coronavirus disease 2019 (COVID-19) and current strains in U.S. financial markets, the Board is issuing an interim final rule that revises the definition of eligible retained income for purposes of the Board's total loss-absorbing capacity (TLAC) rule. The revised definition of eligible retained income will make any automatic limitations on capital distributions that could apply under the TLAC rule more gradual and aligns to recent action taken by the Board and the other Federal banking agencies in the capital rule.
The interim final rule is effective March 26, 2020. Comments on the interim final rule must be received no later than May 11, 2020.
You may submit comments, identified by Docket No. R-1706; 7100-AF80, by any of the following methods:
•
•
•
•
All public comments will be made available on the Board's website at
Anna Lee Hewko, Associate Director, (202) 530-6360, Constance Horsley, Deputy Associate Director, (202) 452-5239, Juan Climent, Manager, (202) 460 2180, Sean Healey, Lead Financial Institution Policy Analyst, (202) 912-4611, Division of Supervision and Regulation; Benjamin McDonough, Assistant General Counsel, (202) 452-2036, or Mark Buresh, Senior Counsel, (202) 452-5270, Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551. Users of Telecommunication Device for Deaf (TDD) only, call (202) 263-4869.
In December 2016, the Board issued a final rule (TLAC rule) to require the largest domestic and foreign banking organizations operating in the United States to maintain a minimum amount of total loss-absorbing capacity (TLAC), consisting of a minimum amount of long-term debt (LTD) and tier 1 capital.
The TLAC rule applies to the largest and most systemic U.S. banking organizations (U.S. GSIBs) and the U.S. operations of the largest and most systemic foreign banking organizations (covered IHCs), because the failure or material financial distress of these companies has the greatest potential to disrupt U.S. financial stability (collectively, covered companies).
The TLAC and LTD requirements in the final rule build on, and serve as a complement to, the regulatory capital requirements in the Board's capital rule.
The requirements of the TLAC rule are based on many of the same measures as those that are in the capital rule. For example, the TLAC requirements are based on the risk-based and leverage-
As with the capital rule, the TLAC buffer requirements were established to encourage better capital conservation by covered companies and to enhance the resilience of the banking system during stress periods.
The Board, together with the other federal banking agencies (collectively, the agencies), recently revised a core aspect of the buffer requirements in the capital rule, the definition of “eligible retained income.”
Before these revisions to the capital rule, the limitations on capital distributions could have been sudden and severe if a banking organization was to experience even a modest reduction in its capital ratios, undermining the ability of the banking organization to use its capital buffers. This same concern applies to covered companies and the TLAC buffer requirements because, as noted, the TLAC buffers uses the former definition of eligible retained income.
The interim final rule revises the definition of eligible retained income under the TLAC rule to be consistent with the recently revised definition of eligible retained income in the capital rule. By modifying the definition of eligible retained income and thereby allowing covered companies to use their capital buffers in a more gradual manner, the interim final rule should help to promote lending activity and other financial intermediation activities by covered companies and avoid compounding negative impacts on the financial markets.
Under the TLAC rule, if a covered company's TLAC levels fall within its TLAC buffer requirements, the maximum amount of capital distributions and discretionary bonus payments it can make is a function of its eligible retained income. The original definition of eligible retained income under the TLAC rule, as under the capital rule, was four quarters of net income,
Recent events have suddenly and significantly impacted financial markets. The spread of COVID-19 has disrupted economic activity in many countries. In addition, financial markets have experienced significant volatility. The magnitude and persistence of the overall effects on the economy remain highly uncertain. In light of these developments, covered companies may realize a sudden, unanticipated drop in capital ratios. This could create a strong incentive for covered companies to limit their lending and other financial intermediation activities in order to avoid facing abrupt limitations on capital distributions.
To better allow a covered company to continue lending during times of stress, the Board is issuing the interim final rule to revise the definition of eligible retained income in the TLAC rule to the greater of (1) a covered company's net income for the four preceding calendar quarters, net of any distributions and associated tax effects not already reflected in net income, and (2) the average of a covered company's net income over the preceding four quarters. This definition will apply with respect to all of the TLAC buffer requirements under the TLAC rule.
This interim final rule is intended to facilitate use by a covered company of its TLAC buffers as intended and serve as a financial intermediary and source of credit to the economy. As noted, this revision would reduce the likelihood that a covered company is suddenly subject to abrupt and restrictive distribution limitations in a scenario of lower than expected TLAC levels.
As discussed above, the revised definition of eligible net income in the interim final rule allows a covered company to more gradually reduce distributions as it enters stress, and provides a covered company with stronger incentives to continue to lend in such a scenario. On the other hand, by enabling a covered company to gradually decrease capital distributions as it enters stress (rather than mandating a sharp decrease), the rule could incrementally reduce the covered company's loss-absorption capacity in stress.
The definition of eligible retained income affects the distributions of covered companies with TLAC levels within their TLAC buffer requirements. It does not have an impact on minimum TLAC or LTD levels,
The Board is issuing the interim final rule without prior notice and the opportunity for public comment and the delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA)).
The Board believes that the public interest is best served by implementing the interim final rule immediately upon publication in the
The APA also requires a 30-day delayed effective date, except for (1) substantive rules which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause.
While the Board believes that there is good cause to issue the rule without advance notice and comment and with an immediate effective date, the Board is interested in the views of the public and requests comment on all aspects of the interim final rule.
For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule.
The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
For the same reasons set forth above, the Board is adopting the interim final rule without the delayed effective date generally prescribed under the Congressional Review Act. The delayed effective date required by the Congressional Review Act does not apply to any rule for which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
As required by the Congressional Review Act, the Board will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.
In accordance with the requirements of the Paperwork Reduction Act (PRA), an agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Board has reviewed this interim final rule pursuant to authority delegated by the OMB and has determined that it does not contain any collections of information pursuant to the PRA.
The Regulatory Flexibility Act (RFA)
Nevertheless, the Board seeks comment on whether, and the extent to which, the interim final rule would affect a significant number of small entities.
Section 722 of the Gramm-Leach-Bliley Act
• Has the Board organized the material to suit your needs? If not, how could this material be better organized?
• Are the requirements in the regulation clearly stated? If not, how could the regulation be more clearly stated?
• Does the regulation contain language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes to the format would make the regulation easier to understand?
• What else could we do to make the regulation easier to understand?
Administrative practice and procedure, Banks, banking, Credit, Federal Reserve System, Holding companies, Investments, Qualified financial contracts, Reporting and recordkeeping requirements, Securities.
For the reasons stated in the preamble, the Board of Governors of the Federal Reserve System amends 12 CFR chapter II as follows:
12 U.S.C. 321-338a, 481-486, 1467a, 1818, 1828, 1831n, 1831o, 1831p-1, 1831w, 1835, 1844(b), 1844(c), 3101
(c) * * *
(2) * * *
(i)
(A) The global systemically important BHC's net income, calculated in accordance with the instructions to the FR Y-9C, for the four calendar quarters preceding the current calendar quarter, net of any distributions and associated tax effects not already reflected in net income; and
(B) The average of the global systemically important BHC's net income, calculated in accordance with the instructions to the FR Y-9C, for the four calendar quarters preceding the current calendar quarter.
(d) * * *
(2) * * *
(i)
(A) The Covered IHC's net income, calculated in accordance with the instructions to the FR Y-9C, for the four calendar quarters preceding the current calendar quarter, net of any distributions and associated tax effects not already reflected in net income; and
(B) The average of the Covered IHC's net income, calculated in accordance with the instructions to the FR Y-9C, for the four calendar quarters preceding the current calendar quarter.
Enforcement and Compliance, International Trade Administration, Commerce.
Temporary final rule.
The Department Commerce (Commerce)'s Enforcement and Compliance Unit (E&C) is temporarily modifying certain requirements for serving documents containing business proprietary information in antidumping and countervailing duty (AD/CVD) cases to facilitate the effectuation of service through electronic means. The goal is to promote public health and slow the spread of COVID-19. These temporary modifications will be in place until May 19, 2020, unless extended.
Evangeline D. Keenan, Director, APO/Dockets Unit, at 202-482-3354.
In light of the recent COVID-19 outbreak, the U.S. Government is encouraging American citizens to work from home whenever possible. The service requirements in E&C's regulations are often effectuated by hand delivery or by U.S. mail delivery of hard copy documents, which often takes place in an office setting. In turn, this poses a risk to the personnel tasked with serving or accepting service by hand or mail, as well as those around them. Accordingly, Enforcement & Compliance (E&C) will temporarily deem service of submissions containing business proprietary information (BPI) to be effectuated when the BPI submissions are filed by parties in ACCESS (E&C's online document portal), with certain exceptions, with the goal of promoting public health and slowing the spread of COVID-19 while at the same time permitting the continued administration of antidumping and countervailing duty proceedings.
In general, 19 CFR 351.303(f)(1) states that a person filing a document with Commerce simultaneously must serve a copy of the document on all relevant persons by personal service or first class mail. 19 CFR 351.303(f)(3) provides that case and rebuttal briefs must be made by personal service, overnight mail, courier, or in the case of service outside the United States, by first class airmail. E&C is temporarily modifying the means by which a person may serve documents containing BPI, as follows.
For BPI documents submitted with final bracketing on the due date (
For BPI documents submitted under the one-day lag rule, 19 CFR 351.303(c)(2)(i), E&C is temporarily waiving the service requirement for bracketing-not-final BPI submissions filed on the due date. In addition, E&C will deem service to be effectuated upon the filing in ACCESS of the complete
For case and rebuttal briefs served pursuant to 19 CFR 351.303(f)(3)(i), service of BPI case and rebuttal briefs will be deemed effectuated via ACCESS. To provide adequate time for release of case briefs via ACCESS, E&C intends to schedule the due date for all rebuttal briefs to be 7 days after case briefs are filed (while these modifications remain in effect). This modification does not apply to service to pro se parties or parties represented by a non-APO-authorized representative.
Notwithstanding the modifications described above, parties must still take active steps to serve pro se parties BPI documents containing only the pro se party's BPI and serve parties represented by a non-APO-authorized representative documents containing only that party's BPI, consistent with 19 CFR 351.306(c)(2). However, E&C is temporarily modifying the electronic service provision under 19 CFR 351.303(f)(1)(ii), so that a pro se party may give consent to another interested party to serve a document electronically on that pro se party only, provided that the document only contains the pro se party's BPI. In addition, a party represented by a non-APO-authorized representative may give consent to another interested party to serve a document electronically on that non-APO-authorized representative only, provided that the document only contains the BPI of the party represented by that non-APO-authorized representative. If such consent is given, then the serving party's APO-authorized representative may serve the submission on that party via electronic transmission with that recipient's consent. The document must not contain the business proprietary information of other parties.
The following types of submissions and scenarios require the normal means of service as required by section 19 CFR 351.303(f) of E&C regulations, as ACCESS cannot effectuate service:
E&C is not modifying the applicable requirements for serving public documents and public versions at this time, see 19 CFR 351.303(f)(1)(ii), which permit electronic service of public documents and public versions, provided that the receiving party consents.
The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation are waived for good cause because they would be impracticable and contrary to the public interest. (See 5 U.S.C. 553(b)(B)). Interested parties participating in E&C's antidumping and countervailing duty proceedings are generally required to serve other interested parties with documents they submit to E&C. If notice and comment were to be allowed, parties submitting documents containing BPI information to E&C likely either would be unable to serve other parties in the manners proscribed in E&C's regulations or potentially would put their health and safety at risk in doing so. COVID-19 was unexpected and this circumstance could not have been foreseen; therefore E&C could not have prepared ahead of time for this set of circumstances. The provision of the Administrative Procedure Act otherwise requiring a 30-day delay in effectiveness is also waived for those same reasons, which constitute good cause. (5 U.S.C. 553(d)(3)).
The Office of Management and Budget (OMB) has determined that this temporary rule is not significant for purposes of Executive Order 12866.
This temporary rule is not expected to be subject to the requirements of Executive Order 13771 because this temporary rule is not significant for purposes of Executive Order 12866.
This temporary rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
This temporary rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
The analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative Practice and Procedure, Antidumping, Countervailing Duties, Confidential Business Information, Reporting and Recordkeeping Requirements.
For the reasons stated in the preamble, 19 CFR part 351 is amended as follows:
5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671
(f) * * *
(4) Notwithstanding any other paragraph in this section, until further notice, as of March 24, 2020, we are modifying the service requirements with respect to documents containing business proprietary information as follows:
(i) For BPI documents submitted with final bracketing on the due date (
(ii) For BPI documents submitted under the one-day lag rule, paragraph (c)(2)(i) of this section, E&C is temporarily waiving the service requirement for bracketing-not-final BPI submissions filed on the due date. In addition, E&C will deem service to be effectuated upon the filing in ACCESS
(iii) For case and rebuttal briefs served pursuant to paragraph (f)(3)(i) of this section, service of BPI case and rebuttal briefs will be deemed effectuated via ACCESS. This paragraph (f)(4)(iii) does not apply to service to pro se parties or parties represented by a non-APO-authorized representative.
(iv) Parties must still take active steps to serve pro se parties BPI documents containing only the pro se party's BPI and serve parties represented by a non-APO-authorized representative documents containing only that party's BPI, consistent with § 351.306(c)(2). However, E&C is temporarily modifying the electronic service provision under paragraph (f)(1)(ii) of this section, so that a pro se party may give consent to another interested party to serve a document electronically on that pro se party only, provided that the document only contains the pro se party's BPI. Such a document must not contain the BPI of other parties. In addition, a party represented by a non-APO-authorized representative may give consent to another interested party to serve a document electronically on that non-APO-authorized representative only, provided that the document only contains the BPI of the party represented by that non-APO-authorized representative. Such a document must not contain the BPI of other parties. If such consent is given, then the serving party's APO-authorized representative may serve the submission on that party via electronic transmission with that recipient's consent.
(v)
(A) Requests for administrative review, new shipper review, changed circumstances review and expedited review.
(B) Requests for scope ruling or anti-circumvention inquiry.
Food and Drug Administration, HHS.
Notification of availability.
The Food and Drug Administration (FDA, Agency, or we) is announcing the availability of a final guidance for industry entitled “Temporary Policy Regarding Preventive Controls and FSVP Food Supplier Verification Onsite Audit Requirements During the COVID-19 Public Health Emergency.” The guidance communicates the Agency's intention not to enforce certain onsite audit requirements in three of our food safety regulations in certain circumstances related to the impact of the coronavirus if other supplier verification methods that are designed to provide sufficient assurance that hazards have been significantly minimized or prevented are used instead during the period of onsite audit delay.
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 § 10.115(g)(5) (21 CFR 10.115(g)(5))).
Submit written requests for single copies of the guidance to the Office of Food Safety, Center for Food Safety and Applied Nutrition, Food and Drug Administration (HFS-300), 5001 Campus Dr., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the
We are announcing the availability of a guidance for industry entitled “Temporary Policy Regarding Preventive Controls and FSVP Food Supplier Verification Onsite Audit Requirements During the COVID-19 Public Health Emergency.” We are issuing this guidance consistent with our good guidance practices regulation (§ 10.115). In accordance with § 10.115(g)(2), we are implementing the guidance immediately because we have determined that prior public participation is not feasible or appropriate. Although the guidance document is immediately in effect, FDA will accept comments at any time. The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance document concerns certain supplier verification requirements contained in three of the seven foundational regulations that we have established in Title 21 of the Code of Federal Regulations (CFR) as part of our implementation of the FDA Food Safety Modernization Act (Pub. L. 111-353). The three final regulations are entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” (part 117 (21 CFR part 117)) (
The purpose of the guidance is to state the current intent of FDA, in certain circumstances related to the impact of the coronavirus, not to enforce requirements in the three regulations to conduct onsite audits of food suppliers when other supplier verification methods are used to provide sufficient assurance that hazards have been significantly minimized or prevented, during the period of onsite audit delay.
This guidance refers to previously approved FDA 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 part 117 have been approved under OMB control number 0910-0751. The collections of information in part 507 have been approved under OMB control number 0910-0789. The collections of information in part 1, subpart L have been approved under OMB control number 0910-0752.
Persons with access to the internet may obtain the guidance at either
Bureau of Indian Affairs, Interior.
Final rule.
The Bureau of Indian Education (BIE) is finalizing a rule developed using a negotiated rulemaking process, as required by the Elementary and Secondary Education Act of 1965 (ESEA or the Act), as amended by 2015 Every Student Succeeds Act (ESSA), for implementation of the Secretary of the Interior's (Secretary) responsibility to establish requirements for standards, assessments, and an accountability system for BIE-funded schools.
This rule is effective on April 27, 2020.
Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680;
On June 10, 2019, BIE published a proposed rule to govern how the Secretary will establish requirements for standards, assessments, and an accountability system for BIE-funded schools consistent with ESEA section 1111 on a national, regional, or tribal basis, as appropriate, taking into account the unique circumstances and needs of such schools and the students served by such schools.
This Standards, Assessments, and Accountability System final rule replaces the 25 CFR part 30 regulations concerning Adequate Yearly Progress (AYP) published in the
Among other things, in this final rule, the BIE:
• Added a definition of “School Year” and added language to § 30.112 to clarify a general effective date for approved alternative requirements that will allow sufficient time for planning and implementation;
• Replaced the term
• Added language to § 30.100 similar to that previously located at § 30.103(e) of the proposed rule describing the ability of tribal governing bodies or school boards to create their own Native American language academic standards and Native American language assessments that specifically references the sovereign right to use Native American languages as a medium of instruction;
• Added language at the end of § 30.103(a), similar to language recommended by the BIE's Standards, Assessments, and Accountability System Negotiated Rulemaking Committee (Committee) previously located at § 30.111(b)(7) of the proposed rule, indicating that the Secretary must periodically review and revise the requirements for the accountability system established pursuant to this part;
• Amended and clarified language in § 30.103(c) regarding consultation with stakeholders to reference the Department of the Interior's (Department) Consultation Policy;
• Revised the language in § 30.104(a) and (b) for consistency with ESEA section 1111(b)(1);
• Revised the language in § 30.104(c) to clarify this paragraph applies to content standards versus achievement standards;
• Added a new paragraph (h) to § 30.105 similar to 34 CFR 200.6, (j)-(k) regarding assessments for students in Native American language schools or programs throughout the BIE-funded school system; and
• Added language to § 30.111 and §§ 30.120 through 30.124 for consistency with ESEA section 1111(c)-(d) and to clarify requirements regarding school comprehensive support and improvement activities as well as targeted support and improvement activities.
The BIE sought public comment on the proposed rule, as well as tribal input through a series of tribal consultation sessions. Overall, BIE heard from a wide variety of stakeholders including tribal leaders, school board members, educators, national organizations, and the public. BIE also received over 40 written comment submissions. All public comments received in response to the proposed rule are available for public inspection. To view all comments, search by Docket Number “BIA-2016-0005” in
The BIE received a wide range of comments expressing concerns about the condition of facilities, lack of communication, the need for up-to-date computer equipment, and the various challenges that affect the everyday lives of students served by the BIE-funded schools. BIE addresses these general comments below.
In order to address concerns, the BIE has added language to § 30.100 specifically referencing rights under statutes such as the
The BIE further notes that the process described in the Committee's recommendation for § 30.112(g) and the process for waivers and alternative proposals in subpart B of the proposed rule, §§ 30.112 to 30.119 and in ESEA section 8204(c), only differ in requiring a tribal governing body or school board to also notify the Secretary of Education. The BIE notes that this change in the final rule conforms to the understanding underlying the Committee's recommendation that BIE-funded schools would generally follow the BIE's requirements as part of a system of unified requirements. Finally, the proposed language ignores the statutory role of the Secretary of Education in the process of approving requirements alternative to those implemented pursuant to this final rule.
This portion of the preamble previews the final rule and highlights certain aspects of the rule that may benefit from additional explanation.
This final rule amends part 30 as a whole. The title of part 30 will change from “Adequate Yearly Progress” to “Standards, Assessments, and Accountability System.” This final rule describes rules for establishing requirements for a unified standards, assessments, and an accountability system for BIE-funded schools consistent with section 1111 on a national basis, taking into account the unique circumstances and needs of such schools and the students served by such schools. This final rule also describes rules for waiver of such requirements in part or in whole and approval of alternative proposals for requirements; and further provides rules for school comprehensive support and improvement activities. This final rule also recognizes the unique status and importance of Native American languages and the sovereign right of Tribes to use such languages as a medium of instruction.
This section has been modified from the proposed rule. As recommended by some commenters, the section adapts language from the old 25 CFR 30.102 and provides that nothing in part 30 shall be construed to affect, modify, or diminish the sovereign rights of Tribes, statutory rights under law, the Secretary of the Interior's trust responsibility for Indian education, nor the trust responsibility of the United States to Indian Tribes or individual Indians. In response to other commenters concerned that a lack of language concerning the use of Native American languages as a medium of instruction, this section also specifically enumerates the Native American Languages Act of 1990 and the right to use Native American languages as a medium of instruction. Since this section recognizes the right to use Native American languages as a medium of instruction, language recommended by the Committee for § 30.103(e) concerning Native American language assessments has been removed. The BIE has added language to § 30.105(h) concerning the use of assessments in Native American languages for Title I compliance purposes and has attempted to distinguish such assessments in the final rule from others such as assessments of proficiency in a Native American language or for other purposes. The BIE has also incorporated language from 25 CFR 32.4(h) concerning the production and use of instructional materials, culturally appropriate methodologies and teaching and learning strategies that will reinforce, preserve, and maintain Indian and Alaska Native languages, cultures, and histories which school boards, Tribes, and Alaska Native entities may utilize at their discretion.
As indicated in Section II and III above, the BIE modified and added definitions in response to commenters to clarify terms used in the rule. In response to comments, the BIE has added definitions for “agency,” “agency plan,” and “English learner.” The definition of “peer review” has been modified to explain that peer review means a process through which the technical soundness of an assessment, including its validity and reliability is demonstrated. The BIE has added language to § 30.105(e)(2) explaining that it will develop non-regulatory guidance, in collaboration with the Department of Education, on the use of Native American language content assessments in consultation with Tribes and other stakeholders. The definition of “Native American language” has been modified to include a reference to the definition of the same in 25 U.S.C. 2021(20).
In response to comments and for clarity within the rule, BIE has added a definition of “technical assistance” and describes two types of technical assistance: Technical assistance with regard to comprehensive support and improvement and technical assistance with regard to proposals for alternate assessments. In response to requests for clarity on the authority to exercise the right to waive the BIE's requirements and submit proposals for requirements alternative to such requirements, the BIE has split the definition of “tribal governing body or school board” into two separate definitions for “tribal governing body” and “school board.” The BIE has modified the definitions of “alternative proposal” and “waiver” for similar reasons. The BIE has also added a definition of “academic school year” to establish a timeframe for acquiring alternate assessments, if applicable. The BIE has further modified the definition of “Tribally controlled school” to incorporate language from 25 U.S.C. 2511(9). The BIE has added a definition of “tribal consultation” to add clarification to how the BIE meaningfully and timely consults with Tribes and other stakeholders.
This subpart in the rule outlines how the Secretary will develop or implement requirements for standards, assessments, and an accountability system at BIE-funded schools.
This section contains non-substantive changes from the proposed rule for clarity through the inclusion of the words “by such schools” at the end of paragraph (b) and the words “that seeks a waiver described in paragraph (b).”
This section includes language to support the periodic review and revision of the Secretary's requirements. The BIE has removed language recommended by the Committee for this section at § 30.111(b) regarding the periodic review and revision of the accountability system in use at BIE-funded schools since this language is redundant in light of § 30.103(a)-(b). For consistency with the text of similar language in section 1111(a)(6)(A)(ii) providing that State plans shall “be periodically reviewed and revised as necessary . . . to reflect changes in the State's strategies and programs,” the BIE has incorporated some of the language of § 30.111(b)(7) into § 30.103(a).
The BIE replaced a reference to a “Standards, Assessments and Accountability Plan (SAAP)” with a reference to an “Agency Plan” to clarify the plan is by a Federal agency and parallels the State Plans of States. The Agency Plan term also reflects that the plan is intended to be a living document that will encompass the Bureau's
This section retains the proposed provision reflecting the Committee's recommendation to include a requirement for academic standards in tribal civics. The BIE has modified the language of paragraphs (a) and (b) of this section for clarity and consistency with section 1111 of the Act. Paragraph (c) of this section has been modified to add the word “content” in front of the word “standards” in the first instance in which it is used. The BIE has also specified a requirement in paragraph (f) for English language proficiency standards. The BIE has also made other non-substantive changes to this section.
The section includes certain non-substantive changes. Consistent with the concept of phasing tribal civics into BIE's requirements, § 30.105(a) has been modified to provide that tribal civics assessments will be developed as funding becomes available. The BIE has incorporated into paragraph (b)(9)(i)(C) of this section a suggestion from the comments on the proposed rule to include a reference to the definition of “children with disabilities” as defined in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400
In response to both comments expressing concern that the proposed rule restricted the use of Native American language assessments and comments supporting the inclusion of a provision like that in the Department of Education's regulations at 34 CFR 200.6, paragraphs (j) and (k), the BIE has added a new paragraph (h). The language is similar to that in the regulations of the Department of Education but modified to reflect the difficulty of peer review of Native American language assessments, and to change requirements for peer review to a requirement that such assessments be technically valid and reliable for the purposes for which they are intended.
This section contains no changes from the proposed rule.
This section contains no changes from the proposed rule.
The BIE has included some non-substantive changes to this section and has fixed an error in word choice identified by commenters. In response to comments, the BIE has clarified that the one (1) percent cap referred to in paragraph (a)(1) of this section refers to one (1) percent of the total number of “all” students in “all” BIE-funded schools for each subject who take an alternate assessment aligned with alternate academic achievement standards. In response to comments, the BIE has added language to paragraph (a)(2)(ii) to explain that information explaining the alternate assessments to be used consistent with a student's individualized education plan (IEP) will be uploaded to the BIE's student information system. This information will be used to justify exceeding the 1% cap. In response to comments, BIE has also added language to paragraph (a)(3)(i) specifying that BIE will provide technical assistance upon written request with regard to individualized education program (IEP) teams.
The BIE has made some non-substantive changes to this section. In response to comments, the BIE has added language to paragraph (c) of this section specifying that the BIE will provide technical assistance upon written request to BIE-funded schools and parents in regard to English language learners.
The BIE has added language to paragraph (a) of this section to clarify that annual assessments in English proficiency must be valid and reliable. In response to comments, the BIE has also added a new paragraph (h) specifying that the BIE will provide technical assistance, including training teachers on how to administer assessments, upon written request to support BIE-funded schools with the BIE's alternate English language proficiency assessments.
The BIE has removed language recommended by the Committee and incorporated into the proposed rule at § 30.111(b) language regarding consultation and the periodic review and revision of the accountability system in use at BIE-funded schools because that language was redundant to § 30.103(a)-(b). For consistency with the text of similar language in section 1111(a)(6)(A)(ii) providing that State plans shall “be periodically reviewed and revised as necessary . . . to reflect changes in the State's strategies and programs,” the BIE has incorporated some of the language of § 30.111(b)(7) into § 30.103(a).
The BIE supports the Committee's recommendation that science and tribal civics be incorporated into the requirements for an accountability system. To this end, the BIE has consolidated subsections (c) and (d) of this section as it existed in the proposed rule and has provided that both science and tribal civics requirements will be phased into the accountability system as School Quality or Student Success (SQSS) indicators. This new paragraph further provides, consistent with the language recommended by the
BIE also added an explanation of the term “extended-year cohort graduation rate” to this section to recognize that it may be appropriate to consider for purposes of accountability, in addition to schools' four-year adjusted cohort graduation rate, one or more extended-year rates (
In response to comments regarding when alternative requirements will be effective, the BIE has added language to this section clarifying that alternative requirements will generally be effective in the school year following the school year in which such alternative requirements have been approved. The final rule specifies a general effective date in “the school year following the school year” to provide time for proper implementation. The final rule uses the word “generally” to reflect the fact that in some circumstances it may not be feasible to implement alternative requirements in the next school year, such as due to a lack of appropriated funds. The use of the word “generally” is also intended to signify that there may be some circumstances in which alternative requirements could be implemented during the school year in which they have been approved, and also recognizes that in some circumstances plans for alternative requirements might themselves contemplate a gradual phasing in of such requirements.
The BIE has made some non-substantive changes to this section. In order to address concerns over accountability regarding the BIE's responsiveness to notices of waivers, the BIE has added language to paragraph (b) to specify that technical assistance must be requested in writing. The BIE has similarly specified in paragraph (d) that a request for extension of the statutory 60-day deadline for submission of a proposal for alternative requirements should be in writing. Such specification in both subsections (b) and (d) should help to create a paper trail for accountability purposes. Such specification further should be broad enough to accommodate tribal laws concerning official tribal government action.
This section contains no changes from the proposed rule.
This section contains no changes from the proposed rule.
This section has been modified from the proposed rule to specify that requests for technical assistance regarding the development of alternative proposals should be submitted in writing to the Director.
This section has been modified from the proposed rule to provide that requests for technical assistance regarding the development of alternative proposals should be sent to the Department of Education as well as the BIE. This change acknowledges the statutory requirement for both Departments to provide technical assistance in this capacity.
This section has been modified from the proposed rule to specify that a request for technical assistance regarding the development of alternative proposals should be in writing.
This section contains no changes from the proposed rule.
Both in response to comments seeking clarity on support and improvement activities, and considering a need for consistency with section 1111(c)-(d), the BIE has added clarifying language to this subpart.
This section has been modified from the proposed rule to reference support and improvement activities in the context of requirements for accountability system described in § 30.111(g).
Both in response to comments seeking clarity on comprehensive support and improvement activities, and considering a need for consistency with section 1111(c)-(d), the BIE has added clarifying language to this section.
Both in response to comments seeking clarity on support and improvement activities, and considering a need for consistency with section 1111(c)-(d), the BIE has added clarifying language to this section.
In response to comments, this section has been modified from the proposed rule to clarify that the lowest-performing 5% percent of schools referenced in the section refers to the lowest-performing 5% of schools identified for comprehensive support and improvement. Both in response to comments seeking clarity on support and improvement activities, and in light of a need for consistency with section 1111(c)-(d), the BIE has added clarifying language to this section. The BIE has further added a reference back to a requirement for a system of annual meaningful differentiation in § 30.111(f).
Both in response to comments seeking clarity on comprehensive and targeted support and improvement activities, and in light of a need for consistency with section 1111(c)-(d), the BIE has added clarifying language to this section.
This rule describes “Responsibilities and Accountability” in regard to the BIE and this part.
This section contains no changes from the proposed rule.
The BIE will receive the OMB Control Number for the new information collection regarding the waiver process.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
E.O. 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 E.O. 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. The BIE has developed this rule in a manner consistent with these requirements. In addition, section 8204 of the ESEA, as amended, directs the Secretary of the Interior, in consultation with the Secretary of Education, if so requested, to use a negotiated rulemaking process to develop regulations for implementation of the Secretary of the Interior's obligation to establish requirements for the standards, assessments and an accountability system for BIE-funded schools. This rule is also part of the Department's commitment under the Executive order to reduce the number and burden of regulations.
E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. E.O. 13771, however, applies only to significant regulatory actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O. 13771 does not apply to this rule.
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more because it is the responsibility and goal for the Federal Government to provide comprehensive education programs and services for Indian Tribes and Alaska Natives.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, tribal or local government agencies, or geographic regions because this rule affects only the children served at BIE-funded schools.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises because this rule affects only the children served at BIE-funded schools.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the criteria in section 2 of E.O. 12630, this rule does not have any significant takings implications. This rule does not impose conditions or limitations on the use of any private property or otherwise have taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule does not substantially and directly affect the relationship between the Federal and State government. The Secretary of the Interior is responsible for managing BIE-funded schools and interacting with tribal governments or tribal organizations operating Tribally-controlled grant and contract schools. Because this rule does not alter that relationship, a federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be writing to minimize litigation.
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty.
Under the Department's consultation policy and the criteria in E.O. 13175, we evaluated this rule and determined that it would have no tribal implications that would impose substantial direct compliance costs on Indian tribal governments.
Also, under this consultation policy and Executive order criteria with Indian Tribes and other individual stakeholders, BIE added language recommended by the Committee indicating the Secretary must
This rule contains information collections requiring approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. We are not required to provide a detailed statement under the National Environmental Policy Act of 1969 (NEPA) because this rule qualifies for categorical exclusion under 43 CFR 46.210(f) and (i) and the DOI Departmental Manual, part 516, section 15.4.D: (f)-(i). We have also determined that this rulemaking is not involved in any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule would not be a significant energy action under the definition in Executive Order 13211, and therefore, would not require a Statement of Energy Effects.
Elementary and secondary education, Grant programs-Indians, Indians-education, Schools.
For the reasons set forth in the preamble, the Department of the Interior, Bureau of Indian Affairs, revises 25 CFR part 30 to read as follows:
Pub. L. 114-94, 129 Stat. 1312, 20 U.S.C. 6311
(a) This part establishes regulations regarding standards, assessments, and an accountability system at BIE-funded schools consistent with section 1111 of the Elementary and Secondary Education Act of 1965. The Act requires the Secretary to develop or implement requirements for standards, assessments, and an accountability system for BIE-funded schools.
(b) Nothing in this part may be construed to affect, modify, or diminish the sovereign rights of Indian Tribes; statutory rights under law, including the right to use Native American languages as a medium of instruction as described in the
(c) In carrying out activities under this part, the Secretary will be guided by the policies stated in 25 CFR part 32.
(1) Who is aged three (3) through twenty-one (21);
(2) Who is enrolled or preparing to enroll in an elementary school or secondary school;
(3)(i) Who was not born in the United States or whose native language is a language other than English;
(ii)(A) Who is a Native American or Alaska Native, or a native resident of the outlying areas; and
(B) Who comes from an environment where a language other than English has had a significant impact on the individual's level of English language proficiency; or
(iii) Who is migratory, whose native language is a language other than English, and who comes from an environment where a language other than English is dominant; and
(4) Whose difficulties in speaking, reading, writing, or understanding the English language may be sufficient to deny the individual;
(i) The ability to meet the challenging academic standards;
(ii) The ability to successfully achieve in classrooms where the language of instruction is English; or
(iii) The opportunity to participate fully in society.
(5) This definition is not intended to affect the right to use Native American language as a medium of instruction.
(1) Economically disadvantaged students;
(2) Students from major racial and ethnic groups;
(3) Children with disabilities; and
(4) English learners.
(1) Comprehensive or targeted support and improvement or additional targeted support, subject to the availability of appropriations, assistance from the BIE to address issues impacting a school's or one or more subgroups within a school's ability to meet the BIE's academic goals and indicators developed or implemented in accordance with this part, including assistance to extend technical capabilities and training opportunities;
(2) Proposals for alternative requirements, technical assistance means, subject to the availability of appropriations, assistance from the BIE and the Department of Education in the development of alternative requirements for standards, assessments, and an accountability system in part or in whole, including assistance in understanding what options may be available to enhance the exercise of sovereignty in education and address the unique circumstances and needs of BIE-funded schools and the students served at such schools.
(3) English language proficiency assessments and alternate English language proficiency assessments, assistance including training teachers on how to administer such assessments.
(1) Tribally controlled schools, the entity authorized under applicable tribal law to waive the Secretary's requirements and propose alternative requirements; and
(2) A BIE-operated school, the recognized governing body of the Indian Tribe involved that represents at least ninety (90) percent of the students served by such school.
(1) Operated by an Indian Tribe or a tribal organization, enrolling students in Kindergarten through grade twelve (12) of schools that may have varying structure, including a preschool;
(2) Not a local education agency as defined in 25 U.S.C. 2511(5); and
(3) Not directly administered by the Bureau of Indian Education.
(a) The Act requires the Secretary to define standards, assessments, and accountability system, consistent with section 1111 of the Act, for schools on a national, regional, or tribal basis, as appropriate, taking into account the unique circumstances and needs of the schools and the students served, using regulations developed through a negotiated rulemaking process.
(b) If a tribal governing body or school board determines that the requirements described in paragraph (a) of this section are inappropriate, it may waive these requirements, in part or in whole, and propose alternative requirements for standards, assessments, and an accountability system that meets the requirements of section 1111 of the Act, taking into account the unique circumstances and needs of the school or schools and the students served by such schools.
(c) The Secretary and the Secretary of Education will provide technical assistance, upon request, either directly or through a contract, to a tribal governing body or school board that seeks a waiver and alternative requirements described in paragraph (b) of this section.
(a) The Secretary, through the Director, must describe requirements for standards, assessments, and an accountability system for use at BIE-funded schools in accordance with this part. The Director must periodically review and revise these requirements, as necessary, but review will occur not less often than every four (4) years beginning with the school year for which the requirements become effective.
(b) The Director will develop an Agency Plan that will provide Indian Tribes, schools, parents, and other stakeholders with quality, transparent information about how the Act will be implemented at BIE-funded schools, including the requirements that have been established for standards, assessments, and an accountability system for BIE-funded schools.
(c) The Secretary will engage in meaningful consultation with Indian Tribes and Alaska Native Villages, schools, parents, and other stakeholders, when developing and revising requirements for standards, assessments, and an accountability system for BIE-funded schools.
(d) The Secretary may voluntarily partner with States, or another Federal agency, in the development of challenging academic standards and assessments.
(a) The Secretary will implement requirements for academic standards for BIE-funded schools by adopting:
(1) Challenging academic content standards; and
(2) Aligned academic achievement standards consisting of at least three levels of achievement defined in the Agency Plan.
(b) Combined, both academic content standards and academic achievement standards are hereinafter collectively referred to as “challenging academic standards.”
(c) The academic content standards will apply to all BIE-funded schools and the students served at those schools. Such academic content standards will include:
(1) Mathematics;
(2) Reading or Language Arts;
(3) Science;
(4) Tribal civics, as appropriations become available; and
(5) Any other subject determined by the Secretary.
(d) The academic content standards must be aligned to entrance requirements for credit-bearing coursework in higher education and relevant career and technical education standards.
(e) The Secretary must, through a documented and validated standards-setting process, adopt alternate academic achievement standards for students with the most significant cognitive disabilities that:
(1) Are aligned with the challenging academic content standards under paragraphs (a) and (b) of this section;
(2) Promote access to the general education curriculum, consistent with the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400
(3) Reflect professional judgment as to the highest possible standards achievable by the students;
(4) Are designated in the individualized education program developed under section 614(d)(3) of IDEA (20 U.S.C. 1414(d)(3)) for each such student as the academic achievement standards that will be used for the student; and
(5) Are aligned to ensure that a student who meets the alternate academic achievement standards is on track to pursue postsecondary education or competitive integrated employment, consistent with the purposes of the Rehabilitation Act of 1973, as amended by the Workforce Innovation and Opportunity Act, as in effect on July 22, 2014.
(f) The Secretary will adopt English language proficiency standards that:
(1) Are derived from the four (4) recognized domains of speaking, listening, reading, and writing;
(2) Address the different proficiency levels of English learners; and
(3) Are aligned with the challenging academic standards.
(a)
(b)
(1) Except with respect to alternate assessments for students with the most significant cognitive disabilities, be:
(i) The same academic assessments used to measure the achievement of all BIE-funded school students; and
(ii) Administered to all BIE-funded school students, including the following highly-mobile student populations:
(A) Students with status as a migratory child;
(B) Students with status as a homeless child or youth;
(C) Students with status as a child in foster care;
(D) Students with status as a student with a parent who is a member of the armed forces on active duty or serves on full-time National Guard duty;
(2) Be aligned with the BIE's challenging academic standards, and provide coherent and timely information about student attainment of such standards and whether the student is performing at the student's grade level;
(3) Be used for purposes for which such assessments are valid and reliable, consistent with relevant, nationally recognized professional and technical testing standards; objectively measure academic achievement, knowledge, and skills; and use tests that do not evaluate or assess personal or family beliefs and attitudes, or publicly disclose personally identifiable information, except that this provision does not preclude the use of:
(i) Constructed-response, short answer, or essay questions; or
(ii) Items that require a student to analyze a passage of text or to express opinions;
(4) Be of adequate technical quality for each purpose required under the Act and consistent with the requirements of this section, the evidence of which will be made public, including on the BIE website;
(5) Be administered:
(i) In the case of mathematics and reading or language arts:
(A) In each of grades three (3) through eight (8); and
(B) At least once in grades nine (9) through twelve (12);
(ii) In the case of science, not less than one time during:
(A) Grades three (3) through five (5);
(B) Grades six (6) through nine (9); and
(C) Grades ten (10) through twelve (12); and
(iii) In the case of any other subject chosen by the BIE, at the discretion of the BIE;
(6) Involve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills, such as critical thinking, reasoning, analysis, complex problem solving, effective communication, and understanding of challenging content, which may:
(i) Include valid and reliable measures of student academic growth at all achievement levels to help ensure that the assessment results could be used to improve student instruction; and
(ii) Be partially delivered in the form of portfolios, projects, or extended performance tasks;
(7) At the BIE's discretion, be administered through:
(i) A single summative assessment; or
(ii) Multiple Bureau-wide interim assessments during the course of the academic year that result in a single summative score that provides valid, reliable, and transparent information on student achievement or growth;
(8) Produce individual student interpretive, descriptive, and diagnostic reports, consistent with paragraph (b)(3) of this section, regarding achievement on such assessments that allow parents, teachers, principals, and other school leaders to understand and address the specific academic needs of students, and that are provided to parents, teachers, and school leaders, as soon as is practicable after the assessment is given, in an understandable and uniform format, and to the extent practicable, in a language that parents can understand;
(9) Enable results to be disaggregated:
(i) Within the Bureau and each BIE-funded school by:
(A) Each major racial and ethnic group;
(B) Economically disadvantaged students as compared to students who are not economically disadvantaged;
(C) Children with disabilities as defined in section 602(3) of the IDEA compared to children without disabilities;
(D) English proficiency status;
(E) Gender;
(F) Migrant status;
(G) Status as a homeless child or youth as defined in section 725(2) of title VII, subtitle B of the McKinney-Vento Homeless Assistance Act, as amended;
(H) Status as a child in foster care; and
(I) Status as a student with a parent who is a member of the armed forces on active duty or serves on full-time National Guard duty.
(ii) Disaggregation is not required in the cases in which the number of students in a subgroup is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student;
(10) Enable itemized score analyses to be produced and reported, consistent with paragraph (b)(3) of this section, to BIE-funded schools, so that parents, teachers, principals, other school leaders, and administrators can interpret and address the specific academic needs of students as indicated by the students' achievement on assessment items; and
(11) Be designed and developed:
(i) To be valid and accessible for use by all students, including students with disabilities and English learners; and
(ii) To the extent practicable, using the principles of universal design for learning. For the purposes of this section, “universal design for learning” means a scientifically valid framework for guiding educational practice that:
(A) Provides flexibility in the ways information is presented, in the ways students respond or demonstrate knowledge and skills, and in the ways students are engaged; and
(B) Reduces barriers in instruction, provides appropriate accommodations, supports, and challenges, and maintains high achievement expectations for all students, including students with disabilities and English learners.
(c)
(d)
(i) The requirement that the same academic assessments must be used to measure the achievement of all BIE-funded school students and that the assessments must be administered to all BIE-funded school students may not be interpreted to require that all students taking the computer adaptive assessment be administered the same assessment items; and
(ii) Such assessment:
(A) Must measure, at a minimum, each student's academic proficiency based on the challenging academic standards for the student's grade level and growth toward such standards; and
(B) May measure the student's level of academic proficiency and growth using items above or below the student's grade level, including for use as part of the accountability system.
(2) In developing and administering computer adaptive assessments for students with the most significant cognitive disabilities and English learners:
(i) The BIE will ensure that the computer adaptive assessments for students with the most significant cognitive disabilities:
(A) Assess a student's academic achievement based on the challenging academic content standards for the grade in which the student is enrolled;
(B) Meet the requirements of this section and §§ 30.106 through 30.110, including § 30.108, except the assessments are not required to meet the requirements of paragraph (d)(1)(ii) of this section; and
(C) Assess the student's academic achievement to measure, in the subject being assessed, whether the student is
(ii) The BIE may provide for the use of computer adaptive assessments that:
(A) Meet the requirements §§ 30.106 through 30.110 except the assessments are not required to meet the requirements of paragraph (d)(1)(ii) of this section; and
(B) Assess the student's English language proficiency, which may include growth towards such proficiency, in order to measure the student's acquisition of English.
(e)
(2) BIE will develop guidance on the use of academic assessments in a Native American language for purposes of compliance with these regulatory requirements, including evidence of technical validity and reliability, in consultation with the Department of Education, Tribes, and other stakeholders.
(f)
(g)
(h)
(1) The program or school provides an assessment in the Native American language to all students in the program or school and:
(i) Submits evidence to the BIE according to BIE guidelines developed under paragraph (e)(2) of this section regarding such assessment's technical validity and reliability for the purposes for which it is intended; and
(ii) BIE submits this evidence to Department of Education for approval; and
(2) For an English learner the BIE continues to assess the English language proficiency of such English learner, using the annual English language proficiency assessment required under § 30.110, and provides appropriate services to enable him or her to attain proficiency in English.
The Secretary will provide assessment instruments that allow for:
(a) The participation of all students, generally;
(b) The participation of students with disabilities, as detailed in §§ 30.107 and 30.108; and
(c) The participation of English learners, as detailed in § 30.109.
(a) The BIE and BIE-funded schools must ensure that students with disabilities have the appropriate accommodations, such as interoperability with, and ability to use, assistive technology, for students with disabilities, including students with the most significant cognitive disabilities, necessary to measure the academic achievement of such children relative to the BIE's challenging academic standards or alternate academic achievement standards described in § 30.104(d) and (e).
(b) The Secretary must include students with disabilities in all assessments, with appropriate accommodations. For purposes of this section, students with disabilities, collectively, are:
(1) All children with disabilities as defined under section 602(3) of the IDEA;
(2) Students with the most significant cognitive disabilities who are identified from among the students in paragraph (a) of this section; and
(3) Students with disabilities covered under other acts, including:
(i) Section 504 of the Rehabilitation Act of 1973, as amended; and
(ii) Title II of the Americans with Disabilities Act (ADA), as amended.
(c) Appropriate accommodations for those students described in paragraph (b) of this section will be determined by:
(1) For each student under paragraphs (b)(1) and (2) of this section, the student's IEP team;
(2) For each student under paragraph (b)(3)(i) of this section, the student's placement team; or
(3) For each student under paragraph (b)(3)(ii) of this section, the individual or team designated by the school to make these decisions.
(d)(1) Except as provided in paragraph (d)(2) of this section, a student with a disability must be assessed with an assessment aligned with the BIE's challenging academic standards for the grade in which the student is enrolled.
(2) A student with the most significant cognitive disabilities may be assessed with:
(i) The general assessment under § 30.106(b); or
(ii) The alternate assessment under § 30.108 aligned with the BIE's challenging academic content standards for the grade in which the student is enrolled and the BIE's alternate academic achievement standards.
(e) The BIE and school must ensure that general and special education teachers, paraprofessionals, teachers of English learners, specialized instructional support personnel, and other appropriate staff receive necessary training to administer assessments and know how to administer assessments, including, as necessary, alternate assessments, and know how to make use of appropriate accommodations during assessment for all students with disabilities, consistent with section 1111(b)(2)(B)(vii)(III) of the Act.
(f) The BIE and school must ensure that the use of appropriate accommodations under paragraph (c) of this section does not deny a student with a disability:
(1) The opportunity to participate in the assessment; and
(2) Any of the benefits from participation in the assessment that are afforded to students without disabilities.
(a)
(1) Consistent with paragraph (b) of this section, ensure that, for each subject, the total number of students assessed in the subject using the alternate assessments does not exceed one (1) percent of the total number of all students in all BIE-funded schools who are assessed in the subject;
(2) With regard to the percentage of students assessed under this paragraph (a):
(i) Not prohibit a BIE-funded school from assessing more than one (1)
(ii) Require that the BIE-funded school submit by October 1 information into the BIE's student information system regarding what assessment the student is to take and which must be consistent with the individualized education program (IEP);
(iii) Provide appropriate oversight of a BIE-funded school that is required to submit information to the BIE; and
(iv) Make the information submitted by a BIE-funded school under paragraph (a)(2)(ii) of this section publicly available, provided that such information does not reveal personally identifiable information about an individual student;
(3) With regard to IEP teams:
(i) Establish clear and appropriate guidelines, consistent with section 612(a)(16)(C) of the IDEA, and provide technical assistance as requested in writing, and monitor implementation of clear and appropriate guidelines for IEP teams to apply in determining, on a case-by-case basis, which students with the most significant cognitive disabilities will be assessed based on alternate academic achievement standards. Such guidelines must include a BIE definition of “students with the most significant cognitive disabilities” that addresses factors related to cognitive functioning and adaptive behavior, such that:
(A) The identification of a student as having a particular disability as defined in the IDEA or as an English learner does not determine whether a student is a student with the most significant cognitive disabilities;
(B) A student with the most significant cognitive disabilities is not identified solely on the basis of the student's previous low academic achievement, or the student's previous need for accommodations to participate in general BIE assessments; and
(C) A student is identified as having the most significant cognitive disabilities because the student requires extensive, direct individualized instruction and substantial supports to achieve measurable gains on the BIE's challenging academic content standards for the grade in which the student is enrolled; and
(ii) Provide to IEP teams a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on alternate academic achievement standards, including any effects of BIE and BIE-funded school policies on a student's education resulting from taking an alternate assessment aligned with alternate academic achievement standards, such as how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma;
(4) Ensure that the parents of such students are clearly informed, as part of the process for developing the individualized education program (as defined in section 614(d)(1)(A) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)(1)(A))):
(i) That their child's academic achievement will be measured based on the alternate academic achievement standards; and
(ii) How participation in the assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma;
(5) Promote, consistent with the IDEA (20 U.S.C. 1400
(6) Describe the steps the Bureau has taken to incorporate universal design for learning, to the extent feasible, in alternate assessments;
(7) Describe that general and special education teachers, and other appropriate staff:
(i) Know how to administer the alternate assessments; and
(ii) Make appropriate use of accommodations for students with disabilities on all assessments required under this paragraph (a);
(8) Develop, disseminate information on, and promote the use of appropriate accommodations to increase the number of students with significant cognitive disabilities:
(i) Participating in academic instruction and assessments for the grade level in which the student is enrolled; and
(ii) Who are tested based on the BIE's challenging academic standards for the grade level in which the student is enrolled; and
(9) Not preclude a student with the most significant cognitive disabilities who takes an alternate assessment based on alternate academic achievement standards from attempting to complete the requirements for a regular high school diploma.
(b)
(a)
(1) Assessed in a valid and reliable manner; and
(2) Provided appropriate accommodations on assessments administered including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what the students know and can do in academic content areas, until the students have achieved English language proficiency, consistent with standardized BIE-determined exit procedures.
(b)
(c)
(1) Disseminate information and resources regarding English learners to, at a minimum, BIE-funded schools, and parents;
(2) Promote the use of accommodations for English learners to ensure that all English learners are able to participate in academic instruction and assessments; and
(3) Provide technical assistance when requested in writing.
(d)
(1) Exclude:
(i) The English learner from one administration of the reading or language arts assessment required under § 30.105; and
(ii) The English learner's results on any of the assessments required under § 30.105(b)(5)(i) or § 30.110 for the first year of the English learner's enrollment in the school for the purposes of the BIE-determined accountability system under § 30.111; or
(2) Assess, and report the performance of:
(i) The English learner on the reading or language arts and mathematics assessments required under § 30.105(b)(5)(i) in each year of the student's enrollment in such a school; and
(ii) For the purposes of the BIE-determined accountability system:
(A) For the first year of the student's enrollment in the school, exclude the results on the assessments described in paragraphs (d)(1)(i) and (ii) of this section;
(B) Include a measure of student growth on the assessments described in paragraphs (d)(1)(i) and (ii) of this section in the second year of the student's enrollment in the school; and
(C) Include proficiency on the assessments in reading or language arts and mathematics described in this paragraph (d) in the third year of the student's enrollment in such a school, and each succeeding year of enrollment.
(e)
(a) The BIE will ensure that BIE-funded schools will administer a valid and reliable annual assessment of English proficiency to all English learners in the schools served by the BIE.
(b) The BIE will require BIE-funded schools to use the assessment to assess annually the English language proficiency, including reading, writing, speaking, and listening skills, of all English learners in kindergarten through grade twelve (12).
(c) The English language proficiency assessment must be aligned with the BIE's English language proficiency standards described in § 30.104(f).
(d) The assessment will be implemented, developed, and used consistent with the requirements of this section.
(e) The assessment will provide coherent and timely information about each student's attainment of the BIE's English language proficiency standards to parents.
(f) If an English learner has a disability that precludes assessment of the student in one or more domains of the English language proficiency assessment such that there are no appropriate accommodations for the affected domain(s) (
(g) The BIE must provide for an alternate English language proficiency assessment for English learners with the most significant cognitive disabilities who cannot participate in the assessment under this paragraph (g) even with appropriate accommodations.
(h) BIE will provide technical assistance, including training teachers on how to administer assessments, in regard to English language proficiency assessments and alternate English language proficiency assessments to BIE-funded schools as requested in writing.
(a) The Secretary will define accountability system for BIE-funded schools consistent with this section and subpart C of this part, including provisions for a single Bureau-wide accountability system and system of support and improvement activities, taking into account the unique circumstances and needs of BIE-funded schools and the students served by BIE-funded schools.
(b) To improve student academic achievement and school success among all elementary and secondary schools within the BIE-funded school system, the Secretary will develop and implement a single, Bureau-wide accountability system that:
(1) Is based on the Bureau's challenging academic standards and academic assessments;
(2) Is informed by ambitious long-term goals and measurements of interim progress;
(3) Includes all the accountability indicators described paragraph (e) of this section;
(4) Takes into account the achievement of all elementary and secondary school students within the BIE-funded school system;
(5) Is the same accountability system used to annually, meaningfully differentiate all schools within the BIE-funded school system and the same accountability system used to identify schools for comprehensive and targeted support and improvement; and
(6) Includes the process that the Bureau will use to ensure effective development and implementation of school support and improvement plans, including evidence-based interventions, to hold all schools within the BIE-funded school system accountable for student academic achievement and school success.
(c) The inclusion of science and tribal civics will be phased into the Secretary's requirements for accountability system starting as a school quality or student success indicator and their continued use in such manner will be revisited as the accountability system is implemented.
(d) For all students and separately for each subgroup of students within the BIE-funded school system, the BIE will establish long-term goals and measurements of interim progress that will include, at a minimum, improved academic achievement, as measured by proficiency on the Bureau's annual assessments in mathematics and reading or language arts under § 30.105(b)(5)(i), and high school graduation rates, including the four (4)-year adjusted cohort graduation rate, or at BIE's discretion one or more extended year graduation cohorts, and that will:
(1) Use the same multi-year length of time for all students and for each subgroup of students within the BIE-funded school system to meet the goals; and
(2) Take into account, for subgroups of students who are behind on the measurements of academic achievement
(e) For all students and separately for each subgroup of students within the BIE-funded school system, the BIE will include a long-term goal and measurements of interim progress for increases in the percentage of English learner students making progress in achieving English language proficiency as defined by the Secretary and measured by the assessments under § 30.110 within a timeline determined by the Bureau.
(f) For all students and separately for each subgroup of students the Bureau will establish and annually measure the following accountability indicators:
(1) For all schools, based upon the long-term goals established under paragraphs (b)(2) and (d) of this section, academic achievement:
(i) As measured by proficiency on the annual assessments of mathematics and reading or language arts described in § 30.105(b)(5)(i); and
(ii) At the BIE's discretion, for each high school, growth, as measured by such annual assessments.
(2) For elementary and secondary schools that are not high schools:
(i) A measure of student growth, if determined to be appropriate by the BIE; or
(ii) Another valid and reliable Bureau-wide academic indicator that allows for meaningful differentiation in school performance.
(3) For high schools, based upon the long-term goals established under paragraphs (b)(2) and (d) of this section:
(i) The four (4)-year adjusted cohort graduation rate; and
(ii) At the BIE's discretion, the extended-year adjusted graduation cohort rate, as defined in paragraph (j) of this section.
(4) For all schools, progress in achieving English language proficiency, as defined by the BIE and measured by the assessments of English language proficiency described in § 30.110, within a BIE-determined timeline for all English learners:
(i) In each of grades three (3) through eight (8); and
(ii) In the high school grade for which such English learners are otherwise assessed in mathematics and reading or language arts.
(5) For all schools, not less than one indicator of school quality or student success that:
(i) Allows for meaningful differentiation in school performance;
(ii) Is valid, reliable, comparable, and Bureau-wide (with the same indicator or indicators used for each grade span, as such term is determined by the BIE); and
(iii) May include one or more of the following measures:
(A) Student or Educator engagement;
(B) Chronic absenteeism;
(C) Student access to and completion of advanced coursework;
(D) Postsecondary readiness;
(E) School climate and safety; and
(F) Any other indicator the BIE chooses that meets the requirements of this section.
(g) The BIE will establish a system for meaningfully differentiating, annually, all schools that will:
(1) Be based on all indicators described paragraph (f) of this section for all students and for each subgroup of students; and
(2) With respect to paragraphs (f)(1) through (4) of this section, afford:
(i) Substantial weight to each such indicator;
(ii) In the aggregate, much greater weight than is afforded to the indicator or indicators utilized by the BIE and described in paragraph (f)(5) of this section, in the aggregate; and
(iii) Include differentiation of any such school in which any subgroup of students is consistently underperforming, as determined by the BIE, based on all indicators described in paragraph (f) of this section.
(h) Based on the system of meaningful differentiation described in paragraph (g) of this section, the BIE will establish a methodology to identify:
(1) Beginning with the first full school year following April 27, 2020, and at least once every three (3) years thereafter, one (1) BIE-wide category of schools for comprehensive support and improvement, which will include:
(i) Not less than the lowest-performing five (5) percent of all schools receiving Title I funding;
(ii) All high schools failing to graduate one third (
(iii) All schools identified for additional targeted support and improvement that receive ESEA Title I funding and do not meet exit criteria as provided in § 30.124(a)(2).
(2) The BIE will provide technical assistance to all schools identified for comprehensive support and improvement, targeted support and improvement, or additional targeted support.
(i) The Bureau's accountability system will annually measure the achievement of at least ninety-five (95) percent of all students, and ninety-five (95) percent of each subgroup of students, who are enrolled in a school within the BIE-funded school system on the Bureau's assessments. The denominator for the purpose of measuring, calculating, and reporting on the academic achievement indicator will be the greater of:
(1) Ninety-five (95) percent of all students, or ninety-five (95) percent of each subgroup of students; or
(2) The number of students participating in the assessments.
(j) The performance of students that have not attended the same BIE-funded school for at least half (
(k) Extended-year adjusted cohort graduation rate means the fraction—
(1) The denominator of which consists of the number of students who form the original cohort of entering first-time students in grade nine (9) enrolled in the high school, adjusted by—
(i) Adding the students who joined that cohort, after the date of the determination of the original cohort; and
(ii) Subtracting only those students who left that cohort, after the date of the determination of the original cohort, as described in paragraph (l) of this section; and
(2) The numerator of which—
(i) Consists of the sum of—
(A) The number of students in the cohort, as adjusted under paragraph (k)(1) of this section, who earned a regular high school diploma before, during, or at the conclusion of—
(
(
(B) All students with the most significant cognitive disabilities in the cohort, as adjusted under paragraph (k)(1) of this section, assessed using the alternate assessment aligned to alternate academic achievement standards under § 30.108 and awarded an alternate diploma that is—
(
(
(
(ii) Does not include any student awarded a recognized equivalent of a diploma, such as a general equivalency
(l) To remove a student from a cohort, a school or local educational agency must require documentation, or obtain documentation from the BIE, to confirm that the student has transferred out, immigrated to another country, transferred to a prison or juvenile facility, or is deceased.
(m) For purposes of this paragraph (m), the term “transferred out” has the meaning given the term in ESEA section 8101(25)(C).
(n) For those high schools that start after grade nine (9), the original cohort will be calculated for the earliest high school grade students attend no later than the date by which student membership data is collected annually by the BIE.
Yes. A tribal governing body or school board may waive the Secretary's requirements for standards, assessments, and an accountability system in part or in whole, and the tribal governing body or school board's alternative requirements will apply if they meet the requirements of section 1111, taking into account the unique circumstances and needs of the applicable school or schools and the students served by such school or schools, and are approved by the Secretary and the Secretary of Education. If the Secretary and the Secretary of Education do not approve the tribal governing body or school board's proposal for alternative requirements, the Secretary's requirements under this part continue to apply. Depending on the nature and content of such proposals for alternative requirements, and subject to the availability of appropriations, alternative requirements will generally be effective in the school year following the school year they are approved. Where a tribal governing body or school board proposes to use existing State requirements, approval of the use of such requirements is dependent upon the agreement of the applicable State.
(a) A tribal governing body or school board may waive the Secretary's requirements for standards, assessments, and an accountability system, in part or in whole.
(b) The tribal governing body or school board must notify the Secretary and the Secretary of Education in writing of the decision to waive the Secretary's requirements in part or in whole.
(c) Within sixty (60) days of the decision to waive the Secretary's requirements in part or in whole, the tribal governing body or school board must submit to the Secretary for review and, in coordination with the Secretary of Education, approval, a proposal for alternative requirements that are consistent with section 1111 of the Act, taking into account the unique circumstances and needs of the school or schools and the students served. The Secretary encourages a tribal governing body or school board to request and receive technical assistance well in advance of submission of a plan to the Secretary for review. The tribal governing body or school board must continue to follow the Secretary's requirements for standards, assessments, and an accountability system until a proposal for alternative requirements has been approved and until alternative requirements become effective.
(d) A tribal governing body or school board may request in writing an extension of the sixty (60) day deadline for the provision of technical assistance.
(e) A tribal governing body or school board must use this process anytime a tribal governing body or school board proposes alternative requirements for standards, assessments, and an accountability system, or proposes changes to approved alternative requirements.
(f) The Secretary will work with the Secretary of Education to develop and make available templates for proposals for alternative requirements that tribal governing bodies and school boards may use to assist in the development of such proposals for alternative requirements.
Proposals for alternative requirements must include an explanation of how the alternative proposal meets the requirements of section 1111 of the Act, taking into consideration the unique circumstances and needs of BIE-funded schools and the students served at such schools.
Yes, a tribal governing body or school board may use the Secretary's requirements in part or in whole. Alternative proposals must clearly identify any retained portions of the Secretary's requirements.
The Secretary and the Secretary of Education are required by statute to provide technical assistance, upon request, either directly or through contract, to a tribal governing body or a school board that seeks to develop alternative requirements. A tribal governing body or school board seeking such assistance must submit a request in writing to the Director. The Secretary will provide such technical assistance on an ongoing and timely basis.
(a) Requests for technical assistance must be in writing from a tribal governing body or school board to the Director of BIE and the Department of Education's Assistant Secretary of the Office of Elementary and Secondary Education.
(b) The Director, or designee, will acknowledge receipt of a request for technical assistance.
(c) No later than thirty (30) days after receiving the original request, the Director will identify a point-of-contact and begin the process of providing technical assistance. The Director and requesting tribal governing body or school board will work together to identify the form, substance, and timeline for the assistance.
A tribal governing body or school board may request technical assistance in writing at any time. A tribal governing body or school board is welcomed and encouraged to request technical assistance before formally notifying the Secretary of its intention to waive the requirements established by the Secretary in order to maximize the time available for technical assistance.
(a) The Secretary and the Secretary of Education will jointly approve plans for alternative requirements for standards, assessments, and an accountability system or determine that the proposed
(1) The Secretary will consult with the Secretary of Education through the review of a proposal for alternative requirements.
(2) Upon receipt of a proposal for alternative requirements for standards, assessments, and an accountability system, in part or in whole, the Secretary will begin coordination with the Secretary of Education on review and approval of the proposal.
(3) The Secretary will provide a status update regarding the processing of the proposal within 120 days of receipt of the proposal and every thirty (30) days thereafter to discuss the stage of the review process.
(b) If the Secretary and the Secretary of Education approve a proposal for alternative requirements, the Secretary will:
(1) Promptly notify the tribal governing body or school board; and
(2) Indicate the date for which the alternative proposal will be effective.
(c) If a proposal for alternative requirements is not approved, the tribal governing body or school board will be notified that:
(1) The proposal has not been approved; and
(2) The reasons why the alternative proposal was not approved.
(d) If a proposal for alternative requirements is not approved, the Secretary will provide technical assistance to the tribal governing body or school board to help to overcome the reasons why the alternative proposal was not approved.
(e) If a proposal for alternative requirements is not approved, or is not moving forward, then Tribes may individually request formal consultation with the Secretary and Secretary of Education.
The Secretary will notify each BIE-funded school that has been identified for comprehensive support and improvement as described in § 30.111(h).
(a) Once notified that it has been identified for comprehensive support and improvement, each BIE-funded school is required to develop and implement, in partnership with stakeholders (including principals and other school leaders, teachers, and parents), a comprehensive support and improvement plan to improve student outcomes that:
(1) Is informed by all indicators described in § 30.111(f), including student performance against BIE-determined long-term goals described in § 30.111(d);
(2) Includes evidence-based interventions;
(3) Is based on a school-level needs assessment;
(4) Identifies resource inequities, which may include a review of school-level budgeting, to be addressed through implementation of such comprehensive support and improvement plan;
(5) Is approved by the school and the BIE; and
(6) Upon approval and implementation, is monitored and periodically reviewed by the BIE.
(b) In regard to high schools that have been identified as having failed to graduate one-third or more of their students, the BIE may:
(1) Permit differentiated improvement activities that use evidence-based interventions in the case of a school that predominantly serves students:
(i) Returning to education after having exited secondary school without a regular high school diploma; or
(ii) Who, based on their grade or age, are significantly off track to accumulate sufficient academic credits to meet high school graduation requirements; and
(2) In the case of a school that has a total enrollment of fewer than 100 students, permit the BIE-funded school to forego implementation of improvement activities.
(a) Using the system of annual meaningful differentiation of schools described in § 30.111(b)(5) and (f), the BIE will notify each BIE-funded school in which any subgroup of students is consistently underperforming in accordance with § 30.111(g)(2)(iii).
(b) Each school that has been notified must develop and implement, in partnership with stakeholders (including principals and other school leaders, teachers, and parents), a school-level targeted support and improvement plan to improve student outcomes based on the BIE's indicators for each subgroup of students that was the subject of such notification that:
(1) Is informed by all indicators described in § 30.111(f), including performance against long-term goals described in § 30.111(d);
(2) Includes evidence-based interventions;
(3) Is approved by the BIE prior to implementation of such plan;
(4) Is monitored by the BIE, upon submission and implementation; and
(5) Results in additional action following unsuccessful implementation of such plan after a number of years determined by the BIE.
(a) The BIE will identify for additional support and improvement each school with one (1) or more subgroups that is performing as poorly as the lowest-performing five (5) percent of all Title I schools identified for comprehensive support and improvement in the BIE system using the BIE's system of annual meaningful differentiation of schools described in § 30.111(g).
(b) Each school identified for additional targeted support and improvement must develop and implement a school-level targeted support and improvement plan and identify resource inequities (which may include a review of BIE-funded school level budgeting), to be addressed through implementation of the plan.
(a) The Secretary will establish exit criteria for:
(1) Schools identified for comprehensive support and improvement, which, if not satisfied within a BIE-determined number of years (not to exceed four (4) years), will result in more rigorous BIE-determined action, such as implementation of interventions (which may include addressing school-level operations); and
(2) Schools identified for additional targeted support, which, if not satisfied within a BIE-determined number of years, will, in the case of schools receiving Title I funds, result in identification of the school by the BIE for comprehensive support and improvement.
(b) The Secretary will also periodically review resource allocation to support school improvement.
The Bureau is required to prepare and disseminate widely to the public an annual report card for the BIE-funded school system as a whole, and also report cards for individual BIE-funded schools, consistent with the requirements of section 1111(h) of the
The collections of information in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501
This document was received for publication by the Office of the Federal Register on March 19, 2020.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters of the Monongahela River from mile 23.8 to mile 26.0. This action is necessary to protect persons, vessels, and the marine environment from potential hazards associated with power line work across the river near Elrama Power Plant, Pittsburgh, PA, during an electrical conductor pull from March 23, 2020 through April 6, 2020. Entry of persons or vessels into this zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh or a designated representative.
This rule is effective without actual notice from March 26, 2020 through April 6, 2020. For the purposes of enforcement, actual notice will be used from March 23, 2020 through March 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 MST2 Trevor Vannatta, Waterways Management U.S. Coast Guard; telephone 412-221-0807, email
On November 12, 2019, the Duquesne Light Company notified the Coast Guard that it will be conducting an electrical conductor pull on March 23, 2020, in order to replace existing electrical conductor with new higher ampacity electrical conductor. The conductor pull will take place between mile 23.8 and mile 26 on the Elrama Power Plant side of the Monongahela River. In response, on February 3, 2020, the Coast Guard published a notice of proposed rulemaking (NPRM) titled USCG-2020-0058_NPRM_D8 (85 FR 5909). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this conductor pull project. During the comment period that ended March 4, 2020, we received no comments.
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Pittsburgh (COTP) has determined that potential hazards from the conductor pull include danger to the navigability of the waterway due to obstruction by equipment. The Captain of the Port (COTP) Marine Safety Unit Pittsburgh has determined that potential hazards associated with ongoing work would be a safety concern for anyone transiting the river during the maintenance activity. Possible hazards include risks of injury or death from near or actual contact among working vessels and mariners traversing through the safety zone.
As noted above, we received no comments on our NPRM published February 3, 2020. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a safety zone from March 23, 2020 through April 6, 2020. The safety zone would cover all navigable waters from mile 23.8 to mile 26.0 on the Monongahela River near Pittsburgh, PA. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after a scheduled maintenance activity at the Elrama Power Plant. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Marine Safety Unit Pittsburgh. They may be contacted on VHF-FM Channel 16 or by telephone at (412) 221-0807. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful instructions of the COTP or a designated representative. Breaks in the conductor pull will occur during the enforcement periods, which will allow vessels to pass through the safety zone. The COTP or a designated representative will inform the public of the enforcement period for the safety zone as well as any changes in the schedule through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the safety zone. The zone will impact a 2.2 mile stretch of the Monongahela River and only be enforced during active maintenance periods, and vessel traffic would be able to safely transit around the safety zone. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 0 comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone from mile 23.8 to mile 26.0 on the Monongahela River near Pittsburgh, PA from March 23, 2020 through April 6, 2020. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to 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)
(c)
(2) Persons or vessels requiring entry into or passage through the zone must request permission from the COTP or a designated representative. The COTP's representative may be contacted at (412) 221-0807 or on VHF-FM Channel 16.
(3) All persons and vessels shall comply with the instructions of the COTP or a designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the Chattanooga portion of the Tennessee State Implementation Plan (SIP), provided by the Tennessee Department of Environment and Conservation on behalf of the Chattanooga-Hamilton County Air Pollution Control Bureau (Bureau) through a letter dated September 12, 2018. The revision makes changes to the definition of volatile organic compounds (VOC) that are consistent with changes to state and federal regulations. EPA is approving the changes because they are consistent with the Clean Air Act (CAA or Act).
This rule will be effective April 27, 2020.
EPA has established a docket for this action under Docket ID No. EPA-R04-OAR-2018-0838. All documents in the docket are listed on the
Evan Adams of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9009. Mr. Adams can also be reached via electronic mail at
EPA is taking final action to approve changes to the Chattanooga portion of the Tennessee SIP
In a notice of proposed rulemaking (NPRM) published on May 20, 2019 (84 FR 22786), EPA proposed to approve the aforementioned changes to Part II, Chapter 4, Section 4-2,
To the extent the Commenter is suggesting EPA establish a policy regarding such SIP revisions, EPA acknowledges the comment but notes that it is outside the scope of the action and does not require a substantive response.
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Chattanooga City Code, Part II, Chapter 4, Section 4-2, locally effective on October 3, 2017,
EPA is taking final action to approve the changes to the definition of VOC in Chapter 4 of Part II, Section 4-2, of the Chattanooga portion of the Tennessee SIP because the changes are consistent with section 110 of the CAA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
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 May 26, 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.
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS is reallocating the projected unused amounts of the Community Development Quota (CDQ) pollock directed fishing allowance (DFA) from the Aleutian Islands subarea to the Bering Sea subarea. This action is necessary to provide opportunity for harvest of the 2020 total allowable catch of pollock, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI).
Effective 1200 hrs, Alaska local time (A.l.t.), March 26, 2020, through 2400 hrs, A.l.t., December 31, 2020.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council (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.
In the Aleutian Islands subarea, the portion of the 2020 pollock total allowable catch (TAC) allocated to the CDQ DFA is 1,900 mt as established by the final 2020 and 2021 harvest specifications for groundfish in the BSAI (85 FR 13553, March 9, 2020).
As of March 18, 2020, the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that 1,900 mt of pollock CDQ DFA in the Aleutian Islands subarea will not be harvested. Therefore, in accordance with § 679.20(a)(5)(iii)(B)(
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 opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Aleutian Islands pollock. Since the pollock fishery opened January 20, 2020, it is important to immediately inform the industry as to the Bering Sea subarea pollock CDQ DFA. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery; allow the industry to plan for the fishing season and avoid potential disruption to the fishing fleet as well as processors; and provide opportunity to harvest increased seasonal pollock allocations while value is optimum. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 19, 2020.
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
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Bombardier, Inc., Model CL-600-2B19 (Regional Jet Series 100 & 440), CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. This proposed AD was prompted by a determination that certain airplanes have outdated magnetic variation (MV) tables inside navigation systems. This proposed AD would require revising the existing airplane flight manual (AFM) to update the Flight Management System (FMS), Inertial Reference System (IRS), and Attitude and Heading Reference System (AHRS) limitations. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by May 11, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
• Fax: 202-493-2251.
•
•
For service information identified in this NPRM, 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
Siddeeq Bacchus, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7362; fax 516-794-5531; 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
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2019-40, dated November 1, 2019 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Bombardier, Inc., Model CL-600-2B19 (Regional Jet Series 100 & 440), CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. You may examine the MCAI in the AD docket on the internet at
This proposed AD was prompted by a determination that certain airplanes have outdated MV tables inside navigation systems. The FAA is proposing this AD to address outdated MV tables inside navigation systems, which can affect the performance of the navigation systems and result in the presentation of misleading magnetic heading references on the Primary Flight Displays (PFDs) and Multi-Function Displays (MFDs), positioning the airplane outside of the terrain and obstacle protection provided by instrument flight procedures and flight route designs (
The FAA reviewed the following service information, which describes procedures for updating, among other systems, the FMS, IRS, and AHRS. These documents are distinct since they apply to different airplane models.
• Section 02-09—Navigation System Limitations, of Chapter 2—LIMITATIONS, of the Bombardier CRJ Series Regional Jet Model CL-600-2B19 Airplane Flight Manual, CSP A-012,
• Section 02-09—Navigation System Limitations, of Chapter 2—LIMITATIONS, of the Bombardier CRJ Series Regional Jet Model CL-600-2C10 Airplane Flight Manual, CSP B-012, Revision 26, dated March 1, 2019.
• Section 02-09—Navigation System Limitations, of Chapter 2—LIMITATIONS, of the Bombardier CRJ Series Regional Jet Model CL-600-2C10 and CL-600-2C11 Airplane Flight Manual, CSP B-012, Revision 28, dated September 18, 2019.
• Section 02-09—Navigation System Limitations, of Chapter 2—LIMITATIONS, of the Bombardier CRJ Series Regional Jet Model CL-600-2D15 and CL-600-2D24 Airplane Flight Manual, CSP C-012, Volume 1, Revision 21, dated March 29, 2019.
• Section 02-09—Navigation System Limitations, of Chapter 2—LIMITATIONS, of the Bombardier CRJ Series Regional Jet Model CL-600-2E25 Airplane Flight Manual, CSP D-012, Revision 21, dated February 15, 2019.
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 proposing this AD because the agency evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require revising the existing AFM to update the FMS, IRS, and AHRS limitations.
The FAA estimates that this proposed AD affects 1,072 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 May 11, 2020.
None.
This AD applies to Bombardier, Inc., Model CL-600-2B19 (Regional Jet Series 100 & 440), CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 34, Navigation.
This AD was prompted by a determination that certain airplanes have outdated magnetic variation (MV) tables inside navigation systems. The FAA is issuing this AD to address outdated MV tables inside navigation systems, which can affect the performance of the navigation systems and result in the presentation of misleading magnetic heading references on the Primary Flight Displays (PFDs) and Multi-Function Displays (MFDs), positioning the airplane outside of the terrain and obstacle protection provided by instrument flight procedures and flight route designs (
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the existing AFM to
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2019-40, dated November 1, 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 Siddeeq Bacchus, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7362; fax 516-794-5531; email
(3) 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
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for certain waters of the Lake of the Ozarks. This action is necessary to provide for the safety of life on these navigable waters, during fireworks displays scheduled for May 23, June 20, June 27, July 4, July 11, July 18, July 25, August 1, August 8, and August 15, 2020. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before April 27, 2020.
You may submit comments identified by docket number USCG-2020-0067 using the Federal eRulemaking Portal at
If you have questions on this rule, call or email Lieutenant Commander Christian Barger, Sector Upper Mississippi River Waterways Management Division, U.S. Coast Guard; telephone 314-269-2560, email
On December 10, 2019, Celebration Cruises notified the Coast Guard that it will be conducting a firework display from 9:15 p.m. through 10:15 p.m. on May 23, June 20, June 27, July 4, July 11, July 18, July 25, August 1, August 8, and August 15, 2020. The fireworks are to be launched from a barge on Lake of the Ozarks at mile marker .5 on the main channel of Lake of the Ozarks near Bagnel Dam in Lake Ozark, MO. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 420-foot radius of the barge.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 420-foot radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).
The COTP is proposing to establish a safety zone from 9:15 through 10:15 p.m. on May 23, June 20, June 27, July 4, July 11, July 18, July 25, August 1, August 8, and August 15, 2020. The safety zone would cover all navigable waters within 420 feet of a barge on Lake of the Ozarks at mile marker .5 on the main channel of Lake of the Ozarks near Bagnel Dam in Lake Ozark, MO. The duration of the zone is intended to ensure the safety of persons, vessels, and these navigable waters before, during, and after the scheduled 9:30 p.m. to 10:00 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The COTP or a designated representative will inform the public of the enforcement dates and times for this safety zone, as well as any emergent safety concerns that may delay the enforcement of the zone, through Local Notices to Mariners (LNM).
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the temporary safety zone. This action involves firework display that impact a half mile stretch of Lake of the Ozarks for one hour each.
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 call or email 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.
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 a safety zone lasting only one hour on 10 different days that would prohibit entry within 420 feet of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph L60(a) Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
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
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR 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)
(c)
(2) Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF radio Channel 16 or by telephone at 314-269-2332.
(3) If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative while navigating in the regulated area.
(d)
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 April 27, 2020 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Rural Housing Service, USDA.
Notice; comment requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the above-named agency to request Office of Management and Budget's (OMB) approval for a revision of a currently approved information collection in support of the Single-Family Housing Guaranteed Loan Program (SFHGLP).
Comments on this notice must be received by May 26, 2020 to be assured of consideration.
Arlette Mussington, Rural Development Innovation Center—Regulations Management Division, USDA, 1400 Independence Avenue SW, Room 4227, South Building, Washington, DC 20250-1522. Telephone: (202) 720-2825. Email:
The Office of Management and Budget's (OMB) regulation (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that RHS is submitting to OMB for revision.
Comments are invited on: (a) 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; (b) The accuracy of the Agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) Ways to enhance the quality, utility and clarity of the information to be collected; and (d) Ways to minimize the burden of the collection of information on 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 may be sent by the Federal eRulemaking Portal: Go to
The revision resulted from an estimated increase of 1,714,757 responses and 681,089 burden hours since the last submission. Any change in hours is a result of increased program level funding and demand by the public. Also considered is a change in the average loan amount, additional lenders participating in the program, due to a change in the program funding level and a keener interest by industry partners. Backlogs in some States caused delays in processing lender requests that resulted in various turn-around times from state to state. Integration of the SFHGLP into the National model was necessary to provide lenders improved customer service, consistent turn times and policy interpretation.
Copies of this information collection can be obtained from Arlette Mussington, Innovation Center—Regulations Management Division, at (202) 720-2825. Email:
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable March 26, 2020.
Andrew Huston, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4261.
On February 4, 2020, the Department of Commerce (Commerce) initiated the countervailing duty (CVD) investigation of certain vertical shaft engines between 225cc and 999cc, and parts thereof from the People's Republic of China.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a CVD investigation within 65 days after the date on which Commerce initiated the investigation. However, section 703(c)(1)(A) of the Act permits Commerce to postpone the preliminary determination until no later than 130 days after the date on which Commerce initiated the investigation if a petitioner makes a timely request for a postponement. Under 19 CFR 351.205(e), a petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reason for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.
On March 13, 2020, the Coalition of American Vertical Engine Producers and its individual members, the petitioner in this investigation, submitted a timely request pursuant to section 703(c)(1)(A) of the Act and 19 CFR 351.205(e) to postpone fully the preliminary determination. The petitioner stated that the purpose of its request was to provide Commerce with sufficient time to receive and analyze the questionnaire responses of the mandatory respondents.
In accordance with 19 CFR 351.205(e), the reason for requesting a postponement of the preliminary determination and the record does not present any compelling reasons to deny the request. Therefore, in accordance with section 703(c)(1)(A) of the Act, Commerce is postponing the deadline for the preliminary determination to June 15, 2020.
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(l).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable March 26, 2020.
Katherine Johnson at (202) 482-4929 (Federal Republic of Germany (Germany)), Michael Romani at (202) 482-0198 (India), or Dmitry Vladimirov
On January 8, 2020, the Department of Commerce (Commerce) initiated less-than-fair-value (LTFV) investigations of imports of forged steel fluid end blocks (fluid end blocks) from Germany, India, and Italy.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) The petitioner makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.
On March 5, 2020, the petitioners
For the reasons stated above and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1)(A) of the Act, is postponing the deadline for the preliminary determinations by 50 days (
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
National Institute of Standards and Technology, Department of Commerce.
Notice.
The National Institute of Standards and Technology (NIST) invites organizations to provide products and technical expertise to support and demonstrate security platforms for the Validating the Integrity of Computing Devices project. This notice is the initial step for the National Cybersecurity Center of Excellence (NCCoE) in collaborating with technology companies to address cybersecurity challenges identified under the Validating the Integrity of Computing Devices project. Participation in the building block is open to all interested organizations.
Collaborative activities will commence as soon as enough completed and signed letters of interest have been returned to address all the necessary components and capabilities, but no earlier than April 27, 2020.
The NCCoE is located at 9700 Great Seneca Highway, Rockville, MD 20850. Letters of interest must be submitted to
Nakia Grayson via email to
Interested parties must contact NIST to request a letter of interest template to be completed and submitted to NIST. Letters of interest will be accepted on a first come, first served basis. When the building block has been completed, NIST will post a notice on the NCCoE Validating the Integrity of Computing Devices website at
Interested parties should contact NIST using the information provided in the
Each responding organization's letter of interest should identify how their products address one or more of the following desired solution characteristics in section 3 of the Validating the Integrity of Computing Devices project (for reference, please see the link in the PROCESS section above):
1. Use verifiable and authentic artifacts that manufacturers produce during the manufacturing and integration process.
2. Detect malicious component swaps of the computing device.
3. Manage the automation process when accepting the delivery of a computing device and throughout the operational lifecycle of the device.
4. Inspect computing devices to verify that the components in a delivered (or in-use) system computing device match the attributes and measurements declared by the manufacturer.
Responding organizations need to understand and, in their letters of interest, commit to provide:
1. Access for all participants' project teams to component interfaces and the organization's experts necessary to make functional connections among security platform components.
2. Support for development and demonstration of the Validating the Integrity of Computing Devices project for multiple sectors in NCCoE facilities which will be conducted in a manner consistent with the following standards and guidance: FIPS 200, FIPS 201, SP 800-53, SP 800-147B, SP 800-155 and SP 800-161. Additional details about the Validating the Integrity of Computing Devices project are available at:
NIST cannot guarantee that all of the products proposed by respondents will be used in the demonstration. Each prospective participant will be expected to work collaboratively with NIST staff and other project participants under the terms of the consortium CRADA in the development of the Validating the Integrity of Computing Devices project. Prospective participants' contribution to the collaborative effort will include assistance in establishing the necessary interface functionality, connection and set-up capabilities and procedures, demonstration harnesses, environmental and safety conditions for use, integrated platform user instructions, and demonstration plans and scripts necessary to demonstrate the desired capabilities. Each participant will train NIST personnel, as necessary, to operate its product in capability demonstrations. Following successful demonstrations, NIST will publish a description of the security platform and its performance characteristics sufficient to permit other organizations to develop and deploy security platforms that meet the security objectives of the Validating the Integrity of Computing Devices project. These descriptions will be public information.
Under the terms of the consortium CRADA, NIST will support development of interfaces among participants' products by providing IT infrastructure, laboratory facilities, office facilities, collaboration facilities, and staff support to component composition, security platform documentation, and demonstration activities.
The dates of the demonstration of the Validating the Integrity of Computing Devices' capability will be announced on the NCCoE website at least two weeks in advance at
For additional information on the NCCoE governance, business processes, and NCCoE operational structure, visit
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council, NEFMC) will hold a two-day webinar meeting to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Due to federal and state travel restrictions and updated guidance from the Centers for Disease Control and Prevention regarding the new coronavirus, COVID-19, this meeting will be conducted entirely by webinar.
The webinar meeting will be held on Tuesday and Wednesday, April 14 and 15, 2020, beginning at 9 a.m. on April 14 and 8:30 a.m. on April 15.
All meeting participants and interested parties can register to join the webinar at
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492, ext. 113.
After introductions and brief announcements, the meeting will begin with reports from the Council Chairman and Executive Director, NMFS's Regional Administrator for the Greater Atlantic Regional Fisheries Office (GARFO), liaisons from the Northeast Fisheries Science Center (NEFSC) and Mid-Atlantic Fishery Management Council, staff from the Atlantic States Marine Fisheries Commission (ASMFC), and representatives from NOAA General Counsel, NOAA's Office of Law Enforcement, the U.S. Coast Guard, the Northeast Trawl Advisory Panel, and the Advisory Committee to the U.S. Section of the International Commission for the Conservation of Atlantic Tunas. The Council then will receive a presentation on the NEFSC's State of the Ecosystem 2020 Report for New England, which will be followed by recommendations from the Council's Scientific and Statistical Committee on the report. The Ecosystem-Based Fishery Management (EBFM) Committee will be up next to provide an update on work related to stakeholder engagement and public information workshops focusing on EBFM and the approach used for the Council's example Fishery Ecosystem Plan (eFEP) for Georges Bank. Then, members of the public will have the opportunity to speak during an open comment period on issues that relate to Council business but are not included on the published agenda for this meeting. The Council asks the public to limit remarks to 3-5 minutes. These comments will be received through the webinar. A guide for how to publicly comment through the webinar is available on the Council website at
Following the lunch break, the Council will receive an update from staff at the Stellwagen Bank National Marine Sanctuary on sanctuary activities, as well as a presentation on the new NOAA Condition Report, which is triggering a review of the sanctuary's management plan. Next, the Council will receive a NEFSC report on the March 9-12, 2020 Red Hake Stock Structure Research Track Assessment peer review meeting and go directly into its Small-Mesh Multispecies (Whiting) Report, which will focus on updates to an action being considered to rebuild southern red hake. Finally, the Council will receive the Atlantic Herring Committee Report covering: (1) An update on Framework Adjustment 7 to the Atlantic Herring Fishery Management Plan (FMP), which is being developed to protect spawning herring on Georges Bank; (2) discussion on whether the Council should request that NOAA Fisheries send a letter to ASMFC outlining the differences between Council and ASMFC authorities related to Atlantic herring management; and (3) an update on Framework Adjustment 8, which includes fishing year 2021-23 specifications and possible adjustment of herring measures that potentially inhibit the Atlantic mackerel fishery from achieving optimum yield. The Council then will adjourn the formal meeting for the day and go into a closed session to discuss personnel issues.
The Council will begin the day with a briefing on NMFS's decision to reinitiate consultation on the 2012 Atlantic Sea Scallop Biological Opinion due to the scallop fishery exceeding its incidental take statement for turtles. The Scallop Committee Report with follow. The Council will approve the range of alternatives for Scallop Amendment 21, which is being developed to address: (1) Northern Gulf of Maine Management Area issues, (2) the Limited Access General Category (LAGC) possession limit, and (3) individual fishing quota (IFQ) transfers. Then, the Council will be briefed by GARFO on issues related to the Atlantic Large Whale Take Reduction Team, the North Atlantic Right Whale Biological Opinion, and the timeline for upcoming action. After that, the Council will discuss and initiate a framework action to require recreational charter/party vessels to submit required vessel trip reports (VTRs) electronically as eVTRs for all fisheries managed by the New England Council.
Following the lunch break, the Council will be presented with and discuss the Groundfish Catch Share Program Review Final Report. Then, the Council will bring up “other business” and take a short break if time allows. After that, the Council will conduct a formal public hearing on Groundfish Monitoring Amendment 23, which is under development to improve catch reporting in the commercial groundfish fishery. At the conclusion of the hearing, the Council will close out the meeting.
Although non-emergency issues not contained on this agenda may come before the Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is being conducted entirely by webinar. Requests for
16 U.S.C. 1801
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
U.S. Air Force Scientific Advisory Board, Department of the Air Force, DoD.
Notice of withdrawal.
The previous Air Force Scientific Advisory Board
Evan Buschmann, (240) 612-5503 (Voice), 703-693-5643 (Facsimile),
Office of the Secretary, Department of Defense (DoD).
Notice of a modified System of Records.
The Office of the Secretary of Defense (OSD) is modifying the DoD Personnel Accountability and Assessment System, DPR 39 DoD, for the purpose of more clearly covering records that may be maintained in response to public health and safety events or other similar emergencies such as Coronavirus Disease 2019 (COVID-19). The DoD blanket routine uses were removed and replaced with specific routine uses that explain the entities to which disclosures would be made.
This System of Records Modification is effective upon publication; however comments on the Routine Uses will be accepted on or before April 27, 2020. The Routine Uses are effective at the close of the comment period.
You may submit comments, identified by docket number and title, by any of the following methods:
*
Follow the instructions for submitting comments.
*
Ms. Cindy Allard, Chief, Defense Privacy, Civil Liberties and Transparency Division, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700, or by phone at (703) 571-0070.
In quick response to the changing situation regarding COVID-19, the OSD is modifying this System of Records Notice to include the necessary information needed in order to decrease the community spread of this disease within the DoD community. The OSD notices for Systems of Records subject to the Privacy Act of 1974, as amended, have been published in the
The proposed system reports, as required by the Privacy Act, as amended, were submitted on March 20, 2020, to the House Committee on Oversight and Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to Section 6 of OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,” revised December 23, 2016 (December 23, 2016, 81 FR 94424).
DoD Personnel Accountability and Assessment System, DPR 39 DoD.
Unclassified.
Decentralized locations include the DoD Components staff and field operating agencies, major commands, installations, and activities.
Senior Program Manager for Casualty and Mortuary Affairs, Office of the Under Secretary of Defense (Personnel & Readiness), Deputy Under Secretary of Defense for Military Community and Family Policy, 4000 Defense Pentagon, Washington DC 20301-4000; DoD Components including the Office of the Secretary of Defense, Departments of the Army, Air Force, and Navy and staffs, field operating agencies, major commands, installations, and activities.
The Privacy Act responsibilities concerning access, amendment, and disclosure of the records within this system notice have been delegated to the employing DoD components.
10 U.S.C. 113, Secretary of Defense; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. 7013, Secretary of the Army; 10 U.S.C. 8013, Secretary of the Navy; 10 U.S.C. 9013, Secretary of the Air Force; 10 U.S.C. 2672, Protection of Buildings, Grounds, Property, and Persons; DoD Instruction 3001.02, Personnel Accountability in Conjunction with Natural or Manmade Disasters; DoD Instruction 6200.03, Public Health Emergency Management (PHEM) Within the DoD; DoD Instruction 6055.17, DoD Emergency Management (EM) Program; and E.O. 9397 (SSN), as amended.
To accomplish personnel accountability for and status of DoD-affiliated personnel in a natural or man-made disaster or public health emergency, or when directed by the Secretary of Defense. Such events could include severe weather events, acts of terrorism or severe destruction, pandemics or major public health outbreaks, and similar crises. This system will document the individuals' check-in data or other information that is self-reported or provided by third parties (
DoD-affiliated personnel to include: Military Service members (active duty, Guard/Reserve and the Coast Guard personnel when operating as a Military Service with the Navy), civilian employees (including non-appropriated fund employees), dependents and family members of the above, and contractors or other individuals working at or requiring access to DoD facilities.
Subject individual's full name, Social Security Number (SSN), DoD Identification Number (DoD ID Number), DoD affiliation, date of birth, duty station address and telephone numbers, home and email addresses, and telephone numbers (to include cell number). Emergency Data information may include spouse's name and address; children's names, dates of birth, address and telephone number; parents' names, addresses and telephone numbers; or emergency contact's name and address. The DoD Components may request information to assess the needs and status of affiliated personnel. Such information may include a needs and status assessment to help determine any specific emergent needs; the date of the assessment; the type of event and category classification; a Federal Emergency Management Agency (FEMA) number, if issued; and other information about individuals if necessary to maintain personnel accountability or inform agency responses to emergencies, such as travel and health-related information covered under the Privacy Act. Personal information maintained will be the minimum necessary in order to accomplish the accountability and/or emergency response mission in accordance with the Privacy Act of 1974 and DoDI 5400.11, consistent with applicable law.
Individuals, supervisors or commanders, other Federal Agencies, and Defense Manpower Data Center (DEERS database).
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records may specifically be disclosed outside DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
a. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government when necessary to accomplish an agency function related to this System of Records.
b. To the Office of Personnel Management (OPM) for the purpose of addressing civilian pay and leave, benefits, retirement deduction, and any other information necessary for the OPM to carry out its legally authorized government-wide personnel management functions and studies.
c. To State and local taxing authorities with which the Secretary of the Treasury has entered into agreements under 5 U.S.C. 5516, 5517, or 5520 and only to those state and local taxing authorities for which an employee or military member is or was subject to tax, regardless of whether tax is or was withheld. The information to be disclosed is information normally contained in Internal Revenue Service (IRS) Form W-2.
d. To any person, organization or governmental entity (
e. To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.
f. To the news media and the public unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
g. To the appropriate Federal, State, local, territorial, tribal, foreign, or international law enforcement authority or other appropriate entity where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law, whether criminal, civil, or regulatory in nature.
h. To any component of the Department of Justice for the purpose of representing the DoD, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.
i. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the DoD or other Agency representing the DoD determines that the records are relevant and necessary to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
j. To the National Archives and Records Administration for the purpose of records management inspections conducted under the authority of 44 U.S.C 2904 and 2906.
k. To a member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
l. To appropriate agencies, entities, and persons when (1) the DoD suspects or confirms a breach of the System of Records; (2) the DoD determines as a result of the suspected or confirmed breach there is a risk of harm to individuals, the DoD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the DoD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
m. To another Federal agency or Federal entity, when the DoD determines that information from this System of Records is reasonably necessary to assist the recipient agency or entity in (1) responding to a
Records are stored in hard copy and electronic media.
Individual's name, DoD ID Number, Social Security Number (SSN), or date of birth.
The Military Departments, Joint Chiefs of Staff and OSD all retain in accordance with their individual Records and Information Management retention schedules.
DoD Components will ensure that paper and electronic records collected and used are maintained in controlled areas accessible only to authorized personnel. Physical security differs from site to site, but the automated records must be maintained in controlled areas accessible only by authorized personnel. Access to computerized data is restricted by use of common access cards (CACs) and passwords. These are “For Official Use Only” records and are maintained in controlled facilities that employ physical restrictions and safeguards such as security guards, identification badges, key cards, and locks.
Individuals seeking access to records about themselves contained in this System of Records should address written inquiries to their employing DoD Component. The request should include the individual's full name, DoD ID Number, SSN, home address, and be signed.
The DoD rules for accessing records, contesting contents, and appealing initial agency determinations are contained in 32 CFR part 310, or may be obtained from the system manager.
Individuals seeking to determine whether this System of Records contains information about themselves should address written inquiries to their employing DoD Component. The request should include the individual's full name, DoD ID Number, SSN, home address, and be signed.
None.
March 24, 2010, 75 FR 14141.
U.S. Army Corps of Engineers, Department of Defense.
Notice; extension of public comment period.
In the February 25, 2020 issue of the
USACE is extending the comment period for the notice published in the February 25, 2020, issue of the
USACE, 441 G Street NW, Washington, DC 20314-1000.
Ms. Tammy Conforti at 202-761-4649, email
None.
Department of the Navy, DoD.
Notice of open meeting; cancellation.
On Friday, March 13, 2020, the Department of the Navy published a notice announcing a meeting of the Marine Corps University Board of Visitors that was to take place on Thursday, April 2, 2020, and Friday, April 3, 2020. Due to ongoing COVID-19 concerns, the Department of the Navy is cancelling this meeting.
The meeting that was open to the public, Thursday, April 2, 2020, from 9:00 a.m. to 5:00 p.m., and Friday, April 3, 2020, from 9:45 a.m. to 11:00 a.m. has been cancelled.
Alternate Designated Federal Officer Dr. Kimberly Florich, Faculty Development and Outreach,
The meeting notice published in the
Due to circumstances beyond the control of the Department of Defense, the Designated Federal Officer for the Marine Corps University Board of Visitors was unable to provide public notification required by 41 CFR 102-3.150(a) concerning the cancellation of the previously noticed meeting for April 2 through 3, 2020. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b),
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:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Evangeline Pass Expansion Project involving construction and operation of facilities by Tennessee Gas Pipeline Company, LLC (Tennessee) and Southern Natural Gas Company, LLC (SNG) in Clarke and Smith Counties, Mississippi and St. Bernard and Plaquemines Parishes, Louisiana.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies about issues regarding the project. The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires the Commission to discover concerns the public may have about proposals. This process is referred to as scoping. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of issues to address in the EA. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on April 20, 2020.
You can make a difference by submitting your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Commission staff will consider all filed comments during the preparation of the EA.
If you sent comments on this project to the Commission before the opening of this docket on February 7, 2020, you will need to file those comments in Docket No. CP20-50-000 or CP20-51-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law.
Tennessee and SNG provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC website (
The Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. To sign up go to
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP20-50-000 or CP20-51-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426
Please note this is not your only public input opportunity; please refer to the review process flow chart in appendix 1.
Tennessee proposes to construct and operate approximately 13 miles total of looping
Tennessee has entered into an agreement with SNG to acquire leased capacity on SNG's system to enable Tennessee to provide firm transportation service up to 1,100 million standard cubic feet of natural gas per day to the recently approved Venture Global Gator Express Pipeline interconnect for feed gas for the Plaquemines LNG Terminal in Plaquemines Parish, Louisiana.
The Evangeline Pass Expansion Project would consist of the following facilities:
• Construction of about 9 miles of 36-inch-diameter looping pipeline in St. Bernard Parish, Louisiana (Yscloskey Toca Lateral Loop);
• construction of about 4 miles of 36-inch-diameter looping pipeline in Plaquemines Parish, Louisiana (Grand Bayou Loop);
• construction of a new 23,470 horsepower (hp) compressor station along Tennessee's existing 500 line in St. Bernard Parish, Louisiana (Compressor Station 529);
• replacement of two 10,410 hp units (like-for-like) under section 2.55(b) at existing Compressor Station 527 in Plaquemines Parish, Louisiana;
• Construction of a new 22,220 hp compressor station in Clarke County, Mississippi (Rose Hill Compressor Station);
• construction of three new meter stations in Clarke and Smith Counties,
• construction and/or modification of certain system auxiliary and appurtenant facilities under section 2.55(a) at existing compressor stations and along the pipeline corridor in Clarke, Smith, Jasper, Simpson, Jefferson Davis, Lawrence, and Walthall Counties, Mississippi and St. Bernard, Washington, St. Tammany, and Orleans Parishes, Louisiana.
The general location of the project facilities is shown in appendix 2.
Construction of the proposed facilities would disturb a total of about 535 acres of land for the aboveground facilities and the pipelines (including activities proposed to be conducted under section 2.55). Following construction, a total of about 133 acres of new permanent right-of-way would be maintained for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses. The proposed looping pipeline routes would parallel existing pipelines, and to the extent that it is practicable, would be located within and adjacent to the existing rights-of-way. The new Compressor Station 529 would be located at an existing abandoned compressor station site owned by Tennessee, while SNG's new Rose Hill Compressor Station would be located within a forested timber property. Tennessee would use four contractor yards (about 27 acres total) to facilitate construction (Toca Yard, Bayou Road Yard, State Road LA-46 Yard, and Yscloskey Yard).
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• socioeconomics;
• land use;
• air quality and noise;
• public safety; and
• cumulative impacts.
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present Commission staffs' independent analysis of the issues. The EA will be available in electronic format in the public record through eLibrary
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Offices, and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
Commission staff have already identified several issues that deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by Tennessee and SNG. This preliminary list of issues may change based on your comments and our analysis.
• Wetlands and waterbodies;
• fisheries and aquatic species;
• hunting and fishing;
• property values; and
• air and noise.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If the Commission issues the EA for an allotted public comment period, a
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Take notice that on March 11, 2020, ANR Pipeline Company (ANR), 700 Louisiana Street, Suite 700, Houston, Texas 77002-2700, filed in the above referenced docket, a prior notice request pursuant to sections 157.205 and 157.210 of the Commission's regulations under the Natural Gas Act (NGA) and ARN's blanket certificate issued in Docket No. CP82-480-000. ANR request authorization to increase the certificated horsepower (HP) at the Grand Chenier Compressor Station located in Cameron Parish, Louisiana (Grand Chenier Horsepower Increase Project). The project will allow the increase of the certificated ISO rated HP from 9,700 to 10,800. ANR avers that there are no additional facility installation, or modifications to the previously installed facilities required to facilitate the HP increase, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions regarding this prior notice request should be directed to Sorana Linder, Director, Modernization & Certificates, Columbia Gas Transmission, LLC, 700 Louisiana Street, Suite 700, Houston, Texas 77002-2700, Phone: (832) 320-5209, Email:
Any person or the Commission's staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene, or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list and will be notified of any meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions in lieu of paper using the eFiling link at
On December 9, 2019, Port Arthur Pipeline, LLC filed an application in Docket No. CP20-21-000 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 Port Arthur Louisiana Connector Amendment Project (Project), and consists of relocating a compressor station site previously approved in the Louisiana Connector Project (Docket No. CP18-7-000) in Allen Parish, Louisiana. Port Arthur Pipeline, LLC, currently proposes to construct the compressor station, along with associated interconnect and metering facilities, in Beauregard Parish, Louisiana. The Project would also increase the design capacity of the compressor station from 89,900 horsepower (hp) to 93,880 hp, and increase the capacity of the previously certificated Louisiana Connector Project from 1.98 billion standard cubic feet per day of natural gas to 2.05 billion standard cubic feet per day of natural gas deliverable to the Port Arthur Liquefaction Project, previously approved by the Commission in Docket No. CP17-20-000.
On December 20, 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.
As part of the Project, Port Arthur Pipeline, LLC would:
• Relocate the previously authorized compressor station consisting of four Solar Titan 130E gas turbine driven compressors in Allen Parish from milepost (MP) 96.1 to MP 72.3 in Beauregard Parish, and increase horsepower from 89,900 hp to 93,880 hp;
• relocate an interconnect with Texas Eastern Transmission Company from MP 96.1 to MP 72.3;
• relocate pig launcher/receiver facilities from MP 96.1 to MP 72.3;
• construct three new pipeline interconnections with Cameron Intrastate Pipeline, Transcontinental Gas Pipeline, and Louisiana Storage at MP 72.3; and
• construct one new mainline block valve at MP 72.3, resulting in a total of 10 mainline valves on the Louisiana Connector Project.
On February 5, 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 following hydroelectric application has been filed with the Commission and is available for public inspection.
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All filings must (1) bear in all capital letters the title COMMENTS, REPLY COMMENTS, RECOMMENDATIONS, TERMS AND CONDITIONS, or PRESCRIPTIONS; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
The Commission strongly encourages electronic filing. Please file comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis.
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The project is operated in a run-of-river mode with a continuous, minimum flow of 97 to 270 cubic feet per second (cfs) supplied to the bypassed reach. The current license requires a minimum flow of 65 cfs. Project operation starts when inflows exceed the sum of the minimum hydraulic capacity of the turbine (600 cfs) and the minimum flow supplied to the bypassed reach. All flows greater than the sum of the maximum hydraulic capacity of the turbine (3,100 cfs) and the bypassed reach minimum flow, are passed over the spillway.
m. A copy of the application is available for review at the Commission in the Public Reference Room, or may be viewed on the Commission's website at
You may also register online at
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o. Final amendments to the application must be filed with the Commission no later than thirty (30) days from the issuance date of this notice.
On March 20, 2020, the Commission issued an order in Docket No. EL20-25-000 pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2018), instituting an investigation into whether Tri-State Generation and Transmission Association, Inc.'s proposed Open Access Transmission Tariff is unjust, unreasonable, unduly discriminatory or preferential.
The refund effective date in Docket No. EL20-25-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL20-25-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2019), within 21 days of the date of issuance of the order.
On March 20, 2020, the Commission issued an order in Docket No. EL20-26-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2018), instituting an investigation into whether Tri-State Generation and Transmission Association, Inc.'s proposed Stated Rate Tariff and Wholesale Service Contracts are unjust, unreasonable unduly discriminatory, or preferential.
The refund effective date in Docket No. EL20-26-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL20-26-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2019), within 21 days of the date of issuance of the order.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings 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 date(s). 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:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Information Requirements for Boilers and Industrial Furnaces (EPA ICR No. 1361.18, OMB Control No. 2050-0073) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through January 31, 2021. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before May 26, 2020.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2016-0465, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Peggy Vyas, Office of Resource Conservation and Recovery (mail code 5303P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 703-308-5477; fax number: 703-308-8433; email address:
Supporting documents which explain in detail the information the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), General Hazardous Waste Facility (EPA ICR No. 1571.13, OMB Control No. 2050-0120) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through January 31, 2021. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before May 26, 2020.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0690, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 703-308-5477; fax number: 703-308-8433; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
• Maintaining records of all hazardous wastes identified or listed under subtitle C that are treated, stored, or disposed of, and the manner in which such wastes were treated, stored, or disposed of;
• Operating methods, techniques, and practices for treatment, storage, or disposal of hazardous waste;
• Location, design, and construction of such hazardous waste treatment, disposal, or storage facilities;
• Contingency plans for effective action to minimize unanticipated damage from any treatment, storage, or disposal of any such hazardous waste; and
• Maintaining or operating such facilities and requiring such additional qualifications as to ownership, continuity of operation, training for personnel, and financial responsibility as may be necessary or desirable.
The regulations implementing these requirements are codified in 40 CFR parts 264 and 265. The collection of this information enables the EPA to properly determine whether owners/operators or hazardous waste treatment, storage, and disposal facilities meet the requirements of Section 3004(a) of RCRA.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written comments and recommendations for the information collection should be submitted on or before April 27, 2020.
Comments should be sent to
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The Commission is requesting emergency OMB processing of the information collection requirement(s) contained in this notice and has requested OMB approval no later than 35 days after the collection is received at OMB. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
Domestically, space station operators use the 3.7-4.2 GHz band to provide downlink signals of various bandwidths to licensed transmit-receive, registered receive-only, and unregistered receive-only earth stations throughout the
The Commission adopted a robust transition schedule to achieve an expeditious relocation of FSS operations and ensure that a significant amount of spectrum is made available quickly for next-generation wireless deployments, while also ensuring effective accommodation of relocated incumbent users. The
The Commission concluded in the
Under this new information collection, the Commission will collect information that will be used by the Commission to determine when, how, and at what cost existing operations in the lower portion of the 3.7-4.2 GHz band will be relocated to the upper portion of the band. Specifically, the Commission collect the following information from incumbents as adopted in the
The Commission concluded in the
The
The
This information collection will serve as the starting point for planning and managing the process of efficiently and expeditiously clearing of the lower portion of the band, so that this spectrum can be auctioned for flexible-use service licenses.
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
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in paragraph 7 of the Act.
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th and Constitution Avenue NW, Washington DC 20551-0001, not later than April 10, 2020.
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Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC), a component of the Department of Health and Human Services (HHS), announces the issuance of a an Order under Section 362 and 365 of the Public Health Service Act that suspends the introduction of certain persons from countries where an outbreak of a communicable disease exists. The Order was issued on March 20, 2020.
This action took effect March 20, 2020.
Kyle McGowan, Office of the Chief of Staff, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS V18-2, Atlanta, GA 30329. Phone: 404-639-7000. Email:
On March 20, 2020, the Director of the Centers for Disease Control and Prevention issued the following Order prohibiting the introduction of certain persons from a country where an outbreak of a communicable disease exists.
A copy of the order is provided below and a copy of the signed order can be found at
I issue this order pursuant to Sections 362 and 365 of the Public Health Service (PHS) Act, 42 U.S.C. 265, 268, and their implementing regulations, which authorize the Director of the Centers for Disease Control and Prevention (CDC) to suspend the introduction of persons into the United States when the Director determines that the existence of a communicable disease in a foreign country or place creates a serious danger of the introduction of such disease into the United States and the danger is so increased by the introduction of persons from the foreign country or place that a temporary suspension of such introduction is necessary to protect the public health.
This order applies to persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry (POE) or Border Patrol station at or near the United States borders with Canada and Mexico, subject to the exceptions detailed below. The danger to the public health that results from the introduction of such persons into congregate settings at or near the borders is the touchstone of this order.
This order is necessary to protect the public health from an increase in the serious danger of the introduction of Coronavirus Disease 2019 (COVID-19) into the land POEs, and the Border Patrol stations between POEs, at or near the United States borders with Canada and Mexico. Those facilities are operated by U.S. Customs and Border Protection (CBP), an agency within the U.S. Department of Homeland Security (DHS). This order is also necessary to protect the public health from an increase in the serious danger of the introduction of COVID-19 into the interior of the country when certain persons are processed through the same land POEs and Border Patrol stations and move into the interior of the United States.
There is a serious danger of the introduction of COVID-19 into the land POEs and Border Patrol stations at or near the United States borders with Canada and Mexico, and into the interior of the country as a whole, because COVID-19 exists in Canada, Mexico, and the other countries of origin of persons who migrate to the United States across the United States land borders with Canada and Mexico. Those persons are subject to immigration processing in the land POEs and Border Patrol stations. Many of those persons (typically aliens who lack valid travel documents and are therefore inadmissible) are held in the common areas of the facilities, in close proximity to one another, for hours or days, as they undergo immigration processing. The common areas of such facilities were not designed for, and are not equipped to, quarantine, isolate, or enable social distancing by persons who are or may be infected with COVID-19. The introduction into congregate settings in land POEs and Border Patrol stations of persons from Canada or Mexico increases the already serious danger to the public health to the point of requiring a temporary suspension of the introduction of such persons into the United States.
The public health risks of inaction are stark. They include transmission and spread of COVID-19 to CBP personnel, U.S. citizens, lawful permanent residents, and other persons in the POEs and Border Patrol stations; further transmission and spread of COVID-19 in the interior; and the increased strain that further transmission and spread of COVID-19 would put on the United States healthcare system and supply chain during the current public health emergency.
These risks are troubling because POEs and Border Patrol stations were not designed and are not equipped to deliver medical care to numerous persons, nor are they capable of providing the level of care that vulnerable populations with COVID-19 may require. Indeed, CBP typically transfers persons with acute presentations of illness to local or regional healthcare providers for treatment. Outbreaks of COVID-19 in land POEs or Border Patrol stations would lead to transfers of such persons to local or regional health care providers, which would exhaust the local or regional healthcare resources, or at least reduce the availability of such resources to the domestic population, and further expose local or regional healthcare workers to COVID-19.
As stated above, this order applies to persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land POE or Border Patrol station at or near the United States border with Canada or Mexico, subject to exceptions. This order does not apply to U.S. citizens, lawful permanent residents, and their spouses and children; members of the armed forces of the United States, and associated personnel, and their spouses and children; persons from foreign countries who hold valid travel documents and arrive at a POE; or persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE. Additionally, this order does not apply to persons whom customs officers of DHS determine, with approval from a supervisor, should be excepted based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests. DHS shall consult with CDC concerning how these types of case-by-case, individualized exceptions shall be made to help ensure consistency with current CDC guidance and public health assessments.
DHS has informed CDC that persons who are traveling from Canada or Mexico (regardless of their country of origin), and who must be held longer in congregate settings in POEs or Border Patrol stations to facilitate immigration processing, would typically be aliens seeking to enter the United States at POEs who do not have proper travel documents, aliens whose entry is otherwise contrary to law, and aliens who are apprehended near the border seeking to unlawfully enter the United States between POEs. This order is intended to cover all such aliens.
For simplicity, I shall refer to the persons covered by this order as “covered aliens.” I suspend the introduction of all covered aliens into the United States for a period of 30 days, starting from the date of this order. I may extend this order if necessary to protect the public health.
COVID-19 is a communicable disease caused by a novel (new) coronavirus, SARS-CoV-2, that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan, Hubei Province, People's Republic of China (China).
COVID-19 appears to spread easily and sustainably within communities.
Symptoms include fever, cough, and shortness of breath, and typically appear 2-14 days after exposure.
As of March 17, 2020, there were over 179,112 cases of COVID-19 globally in 150 locations, resulting in over 7,426 deaths; more than 4,226 cases have been identified in the United States, with new cases being reported daily and over 75 deaths due to the disease.
Unfortunately, at this time, there is no vaccine against COVID-19, nor are there any approved therapeutics available for those who become infected. Treatment is currently limited to supportive care to manage symptoms. Hospitalization may be required in severe cases and mechanical respiratory support may be needed in the most severe cases. Testing is available to confirm suspected cases of COVID-19 infection. Testing requires specimens collected from the nose, throat or lungs; specimens can only be analyzed in a laboratory setting. At present, results are typically available within three to four days.
On January 30, 2020, the Director General of the WHO declared COVID-19 to be a Public Health Emergency of International Concern under the International Health Regulations.
Global efforts to slow the spread of COVID-19 have included sweeping travel limitations. Countries such as Japan, Australia, Israel, Russia, and the Philippines have imposed stringent restrictions on travelers who have recently been in China, the epicenter of the pandemic. Similar travel restrictions have since been imposed on individuals from places experiencing substantial outbreaks, including the Islamic Republic of Iran (Iran), South Korea, and Europe. In many countries, individuals are being asked to self-quarantine for 14 days—the outer limit of the COVID-19's estimated incubation period—following return from a foreign country with sustained community transmission.
In the United States, the President has suspended the entry of most travelers from China (excluding Hong Kong and Macau), Iran, the Schengen Area of Europe,
The Federal government announced guidelines stating that the public should avoid discretionary travel; shopping trips; social visits; gatherings in groups of more than 10 people; and eating or drinking at bars, restaurants, and food courts.
As of March 17, 2020, Canada has reported 424 confirmed cases of COVID-19, of which the Canadian government believes 74% are travel-related with an additional 6% being close contacts of travelers.
The United States and Canada share the longest international border in the world, spanning approximately 3,987 (largely unfenced) miles with 119 ports of entry.
In 2017, approximately 33 million individuals crossed the Canadian border into the United States.
On March 18, 2020, the President announced that the United States “will be, by mutual consent, temporarily closing our Northern Border with Canada to non-essential traffic,” and DHS will be issuing guidance on the implementation of that arrangement, including exceptions for “essential travels.”
According to WHO, as of March 17, 2020, Mexico has only 53 confirmed cases of COVID-19, all found to be travel related, and no deaths.
Mexico is only now undertaking some of the public health measures to mitigate the spread of the virus.
Mexico has fewer health care resources than the United States. Mexico's total expenditure on health care per capita is $1,122, compared to the United States' $9,403 per person.
While Mexico responded vigorously to the H1N1 pandemic in 2009-2010, Mexico does not appear to be approaching the COVID-19 pandemic with the same dispatch. In 2003, Mexico established the National Preparedness and Response Plan for an Influenza Pandemic, which was first tested during the 2009 outbreak of H1N1 influenza. Mexico helped contain that outbreak, primarily through early detection of the outbreak, followed by the declaration of a “sanitary emergency” that focused on raising public awareness of the need to contain the spread with proper hygiene, school closings, cancellation of large public gatherings, and aggressive surveillance through widespread testing.
It also bears noting that Mexico struggled to mobilize its strategic stockpile of the antiviral drug Oseltamivir during the 2009-2010 H1N1 outbreak.
The existence of COVID-19 in Mexico presents a serious danger of the introduction of COVID-19 into the United States for these reasons, and because the level of migration across the United States border with Mexico is so high. The U.S.-Mexico border runs an estimated 1,933 miles.
CBP screens and processes millions of aliens who seek to enter the United States legally each year at POEs, as well as apprehending, screening, and processing the hundreds of thousands of aliens who attempt to unlawfully enter the United States each year by crossing between POEs.
There are 328 land POEs along the northern and southern borders operated by CBP. At land POEs, CBP screens and processes the millions of U.S. citizens, lawful permanent residents, and other aliens who seek to enter the United States from Canada and Mexico every year.
One of the CBP's critical functions at POEs is to screen and process arriving aliens to determine whether they are admissible to the United States. CDC understands from DHS that inadmissible aliens are typically those who do not have proper travel documents to enter or whose entry is otherwise contrary to law, such as those who are interdicted attempting to smuggle contraband into the United States. It takes CBP much longer to screen inadmissible aliens than U.S. citizens, lawful permanent residents, and aliens with valid travel documents, all of whom tend to move quickly into the United States after contact with CBP personnel and other travelers at POEs. This difference is due in part to the fact that inadmissible aliens tend to arrive by foot (not vehicle), and lack documentation. Inadmissible aliens in land POEs may spend hours or days in congregate areas while undergoing processing. During that time, they are in close proximity to CBP personnel and other travelers, including U.S. citizens and other aliens.
The admissibility of each alien is determined by a CBP officer. As part of the current admissibility screening, aliens are subject to an initial set of questions designed to elicit their risk factors for various contagious diseases, including COVID-19. Questions would include recent travel and any physical symptoms they are experiencing. CBP officers also use this initial questioning to visually observe arrivals for any obvious signs of illness. Those whose appearance or responses indicate possible exposure to or infection with COVID-19 are directed to don a surgical mask, and are escorted by a CBP officer (also wearing a surgical mask) for further evaluation and risk assessment by the contract medical staff, which is conducted in a designated area within the POE.
Presently, if CBP determines that an alien may be exposed to or infected with COVID-19, the alien is escorted to a separate, enclosed waiting area (usually a small holding room adjacent to normal processing areas) while CBP alerts the relevant health authorities. Specifically, CBP notifies the local health department, CDC, and CBP's Senior Medical Advisor. Local health officials and possibly CDC personnel if available, then consult with CBP to determine whether the individual should be tested for COVID-19 and where that testing should occur. CBP follows guidance from CDC and local health officials regarding transport to the testing site. If the alien is sent for testing in an ambulance, a CBP officer will accompany the individual in the ambulance. If CBP vehicles are used for transport, they are disinfected afterwards. In addition, CBP will consult with U.S. Immigration and Customs Enforcement (ICE) officials regarding the transport of the alien outside of the POE, given that the individual leaving the CBP facility does not have a preexisting legal right to enter the United States and must remain in custody while testing and treatment is carried out.
These infection control procedures are not easily scalable for large numbers of aliens. Moreover, an influx of infected, asymptomatic aliens would present significant infection control challenges for CBP, as the screening of such an aliens may not prompt testing. The aliens would remain in congregate areas in the POE while CBP finishes the screening and processing. During that time, the alien could infect CBP personnel or other aliens with COVID-19.
In addition to the 328 POEs, CBP operates a network of Border Patrol stations to apprehend, process, and temporarily hold aliens seeking to unlawfully enter the United States
Border Patrol stations vary significantly in terms of size and layout, but generally have several congregate holding areas where covered aliens are divided based on demographic factors such as age, gender, and family status,
Only 46 of the 136 Border Patrol stations offer any medical services. The services that are offered are administered by contract medical support and are limited to glucose, pregnancy, influenza testing, and basic emergency care. The 46 facilities are all located on the southwest border with Mexico.
As discussed more fully below, the infection control challenges in Border Patrol stations can be greater than the challenges in POEs, especially when the Border Patrol stations are at or near capacity. This is because covered aliens are in close proximity with one another and CBP personnel, and there is typically no suitable space for quarantining, isolating, or engaging in social distancing with aliens.
On March 12-13, 2020, a USPHS Scientist officer conducted an observational visit to the El Paso del Norte POE (El Paso PDN). The USPHS Scientist officer viewed directly the areas within the POE that CBP uses to screen and process aliens for admissibility. (Exhibit 1).
El Paso PDN is one of the country's busiest border crossings, with more than 10 million people entering the United States from Mexico every year. It receives a constant, heavy inflow of pedestrian and vehicular traffic, consisting of approximately 12,000 pedestrians and 6,000 vehicles per day. El Paso PDN operates 24/7, with a 3-4 person team of contract medical staff who work 12 hour shifts and provide 24/7 coverage. The medical team is typically led by a nurse practitioner or physician assistant, with the remaining team members consisting of emergency medical technicians (EMT) or registered nurses.
El Paso PDN adheres to the general process for screening and processing covered aliens described in § II.3.i above. In terms of medical capabilities, El Paso PDN performs on-site testing only for pregnancy, blood glucose levels, and Influenza A/B. Any other testing or treatment is performed by nearby medical providers. El Paso PDN is representative of other POEs in that it is heavily reliant on local and regional hospitals and EMT services to care for aliens. El Paso PDN has several small waiting rooms that are used to isolate individuals suspected of exposure to or infection with a contagious disease. Each room can fit approximately 6-7 people, and is equipped with windows to permit observation of the rooms' occupants, and locks to prevent them from leaving.
Facility staff indicated they have been fit-tested for N95 respirators, receive biannual N95 training, and that the facility has an approximately 30-day regular use supply of N95 respirators for use by CBP personnel. El Paso PDN has not encountered any suspected COVID-19 cases, but does not currently perform COVID-19 testing.
The site was selected by CBP because it is of one of CBP's largest and best equipped POEs on the Southwest Border. Other POEs have fewer capabilities.
The USPHS Scientist officer observed that even at El Paso PDN, covered aliens would present infection control challenges during processing and screening in congregate areas.
The time required to test for COVID-19 dictates, at least in part, the infection control measures that DHS would have to implement at POEs and Border Patrol stations to effectively mitigate the public health risks presented by covered aliens suspected of harboring or being infected with COVID-19. At this time, there is no available COVID-19 test that yields results at the time of sample collection, such as the rapid testing available for certain influenza strains that yields results in as little as 15 minutes. Nor is there a COVID-19 test that has been cleared for use in a non-clinical setting such as a POE or a Border Patrol station lacking isolation capabilities. Rather, current COVID-19 testing would require the collection of samples from aliens suspected of infection and the mailing of the samples to a laboratory for analysis, with results available within 3-4 days. In theory, to mitigate public health risks, CBP would have to transport aliens in their custody suspected of COVID-19 infection to a nearby medical site for sample collection and testing, and then implement containment protocols (
POEs and Border Patrol stations are not structured or equipped to implement quarantine, isolation, or social distancing protocols on site for COVID-19 for even small numbers of aliens, much less dozens or hundreds of them together with CBP personnel. In particular, POEs and Border Patrol stations were designed for the purpose of short-term holding in a congregate setting. The vast majority of those facilities lack the areas needed to effectively quarantine or isolate aliens for COVID-19 while test results are pending. Moreover, the process for screening and ultimately quarantining or isolating aliens suspected of COVID-19 infection would require the alien to move throughout various sections of the facility, creating a risk of exposure to all nearby—including DHS personnel and other aliens.
Because POEs and Border Patrol stations are not structured or equipped for quarantine or isolation for COVID-19, DHS's alternative would be to try to conduct some type of social distancing in congregate holding areas. The numbers of aliens and the size and capacity of the congregate holding areas are not at all conducive to effective social distancing, which requires individuals to maintain a distance of at least six feet from each other, and to avoid contact with shared surfaces. The
CDC also has a public health tool called conditional release, which involves the release of potentially infected individuals from federal custody subject to conditions calculated to mitigate the risk of disease transmission, such as mandatory self-isolation and CDC monitoring at home. Conditional release is not a viable solution in this context because many aliens covered by this order may lack homes or other places in the United States where they can self-isolate, and CDC lacks the resources and personnel necessary to effectively monitor such a large number of persons. Reliance on the conditional release mechanism in this context would jeopardize, not protect, the public health.
POEs and Border Patrol stations would lack the capacity to provide the medical monitoring and care that would be needed by covered aliens confirmed to be infected with COVID-19. Only a few facilities offer medical services directly, and the medical services that are provided are limited to care for minor ailments, basic emergency care, or the on-site administration of prophylaxis for seasonal influenza (
Moreover, many of the facilities are geographically remote and far from the major medical centers or hospital systems equipped to handle COVID-19 outbreaks. Infected covered aliens would either have to be transported tens or hundreds of miles to the nearest appropriately equipped medical center, or brought to smaller local providers who might lack the resources or capacity to accept COVID-19 cases involving covered aliens. Indeed, U.S. states along the border with Mexico have some of the lowest number of hospital beds per 1,000 inhabitants in the United States.
Based on the foregoing, I find there is a serious danger of the introduction of COVID-19 into the POEs and Border Patrol stations at or nearby the United States borders with Canada and Mexico, and the interior of the country as a whole, because COVID-19 exists in Canada, Mexico, and the countries or places of origin of the covered aliens who migrate to the United States across the land borders with Canada and Mexico. I also find that the introduction into POEs and Border Patrol stations of covered aliens increases the seriousness of the danger to the point of requiring a temporary suspension of the introduction of covered aliens into the United States.
It is necessary for the public health to immediately suspend the introduction of covered aliens. The immediate suspension of the introduction of these aliens requires the movement of all such aliens to the country from which they entered the United States, or their country of origin, or another location as practicable, as rapidly as possible, with as little time spent in congregate settings as practicable under the circumstances. The faster a covered alien is returned to the country from which they entered the United States, to their country of origin, or another location as practicable, the lower the risk the alien poses of introducing, transmitting, or spreading COVID-19 into POEs, Border Patrol stations, other congregate settings, and the interior.
My determinations are based on information provided to CDC by DHS personnel regarding DHS border operations and facilities; the report of the observational visit to the El Paso PDN conducted by the USPHS Scientist officer; figures on the numbers of apprehensions at the United States borders with Canada and Mexico of aliens from countries where COVID-19 exists; information from the public domain; and my own personal knowledge and experience.
I consulted with DHS before I issued this order, and requested that DHS implement this order because CDC does not have the capability, resources, or personnel needed to do so. As part of the consultation, CBP developed an operational plan for implementing the order. Accordingly, DHS will, where necessary, use repatriation flights to move covered aliens on a space-available basis, as authorized by law. The plan is generally consistent with the language of this order directing that covered aliens spend as little time in congregate settings as practicable under the circumstances. In my view, it is also the only viable alternative for implementing the order; CDC's other public health tools are not viable mechanisms given CDC resource and personnel constraints, the large numbers of covered aliens involved, and the likelihood that covered aliens do not have homes in the United States.
This order is not a rule within the meaning of the Administrative Procedure Act (APA). In the event this order qualifies as a rule under the APA, notice and comment and a delay in effective date are not required because there is good cause to dispense with prior public notice and the opportunity to comment on this order and a delay in effective date. Given the public health emergency caused by COVID-19, it would be impracticable and contrary to the public health—and, by extension, the public interest—to delay the issuing and effective date of this order. In addition, because this order concerns the ongoing discussions with Canada and Mexico on how best to control COVID-19 transmission over our shared border, it directly “involve[s] . . . a . . .
This order shall remain effective for 30 days, or until I determine that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, whichever is shorter. I may extend or modify this order as needed to protect the public health.
On March 12-13, 2020, I traveled to El Paso
The site I visited was selected by the Customs and Border Patrol (CBP) Senior Medical Advisor Dr. Tarantino. It was intended to serve as an example of one of CBP's largest and best-equipped Ports of Entry (POEs) on the Southwest Border, not a representative of other POEs across the country.
The El Paso PDN is one of the country's busiest border crossings, and sees approximately 10 million people entering the United States from Mexico annually. The El Paso PDN processes a flow of approximately 12,000 pedestrians and approximately 6-8,000 vehicles per day. Field statistics for FY19 and Jan. 2020 were supplied by the Public Affairs and Community Liaison Director, El Paso Field Office and are attached to this report, as Attachments A and B, respectively. The location is staffed by CBP officers 24/7 working 8 hour shifts. In addition, the facility has 24/7 coverage by a third party contracted Medical Team comprised of 3-4 members, led by a nurse practitioner or physician assistant, with the rest of the team comprised of emergency medical technicians or Registered Nurses.
There are two points of entry into PDN: a pedestrian and vehicular mode. Both are staffed by the same CBP officers from El Paso. Each person seeking entry to the United States at PDN is asked a series of questions upon encountering the CBP officer, including the travel-related COVID-19 screening questions. Officers use visual cues as well as responses to the screening questions to determine the level of risk of COVID-19 infection. If CBP officers suspect any level of risk or signs/symptoms of illness, they put on a surgical mask (CBP officers wear gloves as a normal practice) and give a surgical mask to the individual as well. The officer would then escort the individual to an area where the officer would first inspect the individual for anything that could be used as a weapon, and then fingerprint the individual (if applicable). The individual would then be triaged to an area where they would be administered a 13-part questionnaire, with a series of questions added about COVID-19 by the third party contract Medical Team. The questionnaire is attached as Attachment C.
If an individual is determined to be at risk of COVID-19, the individual is escorted to one of several small waiting rooms, each with a window and locked door, while the local health department, Centers for Disease Control and Prevention (CDC), and CBP's Senior Medical Advisor are notified. Local health officials and/or CDC would then be consulted to determine next steps with respect to testing and/or treatment for COVID-19.
If testing is recommended, then CBP will follow guidance from CDC and local health officials about which third party hospital to transport the individual. If the individual is sent for testing in an ambulance, a CBP officer will accompany the individual inside the ambulance. In addition, CBP will consult with Immigration and Customs Enforcement (ICE) officials if the individual leaving the CBP facility has not yet been processed and so must remain in custody.
CBP personnel informed me that the same basic process described above would be applied to those who arrived on foot or by vehicle—provided the individual provided a response to the screening questions indicative of COVID-19 exposure/infection or appeared to exhibit signs/symptoms of the disease requiring a medical consult for further evaluation and possible testing.
• All CBP officers are fit-tested twice a year for N-95 respirators, but when asked and observed, only surgical masks were identified for use. I was told that the N-95 respirators would be used when there is a declaration of a pandemic or when they are told to use them. Leadership at the site said that they have approximately a 30-day supply of N-95 respirators on hand at the PDN sites. I observed that all CBP officers had a box of gloves and a box of N-95 respirators by their feet behind their workstations.
• The CDC Quarantine Station in El Paso makes routine visits to stop by and answer any questions and provide any updates as needed for the CBP officers. The CBP officers carry a small, two-sided laminated card with key evaluation criteria. The card is attached as Attachment D.
• Observed color-posters of CDC COVID-19 awareness messaging on walls throughout the facility.
• The third party contract Medical Team performs only a small number of tests on-site (rapid Influenza A/B, pregnancy, and glucose). Tests for other conditions, particularly other contagious diseases like measles, are performed off-site at a third part medical facility.
• If an individual is suspected of having an infectious disease or needs to be held for a short period of time, they are put in a small room with a window and a locked door, adjacent to the CBP officers' work-area. This is not an isolation room because the HVAC system is shared with the rest of the facility, and does not have adequate capabilities to contain COVID-19 (
• If an individual actually infected with COVID-19 were subject to the above screening processes, they would be maneuvered throughout various sections of the POE, creating a significant risk of COVID-19 exposure to other aliens and CBP officers in the POE.
The authority for these orders is Sections 362 and 365 of the Public Health Service Act (42 U.S.C. 265, 268).
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
Food and Drug Administration, HHS.
Notice of cancellation of public meeting.
The Food and Drug Administration (FDA or we) is announcing the cancellation of following public meeting entitled “International Cooperation on Cosmetics Regulation (ICCR)—Preparation for ICCR-14 Meeting.” The purpose of the public meeting was to invite public input on various topics pertaining to the regulation of cosmetics.
The public meeting was to be held on April 14, 2020, from 2 p.m. to 4 p.m.
The public meeting was to be held at the Food and Drug Administration, Center for Food Safety and Applied Nutrition, 5001 Campus Dr., Wiley Auditorium (first floor), College Park, MD 20740.
Deborah Smegal, Office of Cosmetics and Colors, Food and Drug Administration, 5001 Campus Dr. (HFS-100), College Park, MD 20740, 240-402-1818,
FDA, like other government agencies, is taking the necessary steps to ensure the Agency is prepared to continue our vital public health mission in the event that our day-to-day operations are impacted by the COVID-19 public health emergency. Therefore, we are canceling or postponing all non-essential meetings through the month of April. We will reassess on an ongoing basis for future months.
Accordingly, the FDA public meeting entitled, “International Cooperation on Cosmetics Regulation (ICCR)—Preparation for ICCR—14 Meeting” announced in the
As of March 20, 2020, the status of the ICCR-14 meeting itself remains to be determined.
Please contact Deborah Smegal in FDA's Office of Cosmetics and Colors (See
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
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 May 26, 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.
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 National Coordinator for Health Information Technology (ONC), HHS.
Notice; public meeting dates.
The Health Information Technology Advisory Committee (HITAC) was established in accordance with section 4003(e) of the 21st Century Cures Act and the Federal Advisory Committee Act. The HITAC, among other things, identifies priorities for standards adoption and makes recommendations to the National Coordinator for Health Information Technology (National Coordinator). The HITAC will hold public meetings throughout 2020. See list of public meetings below.
Lauren Richie, Designated Federal Officer, at
Section 4003(e) of the 21st Century Cures Act (Pub. L. 114-255) establishes the Health Information Technology Advisory Committee (referred to as the “HITAC”). The HITAC will be governed by the provisions of the Federal Advisory
The HITAC is comprised of at least 25 members, of which:
Members will serve for one-, two-, or three-year terms. All members may be reappointed for a subsequent three-year term. Each member is limited to two three-year terms, not to exceed six years of service. After establishment, members shall be appointed for a three-year term. Members serve without pay, but will be provided per-diem and travel costs for committee services.
The HITAC recommendations to the National Coordinator are publicly available at
The revised schedule of meetings to be held in 2020 is as follows:
All meetings are open to the public. Additional meetings may be scheduled as needed. For web conference instructions and the most up-to-date information, please visit the HITAC calendar on the ONC website,
Persons attending ONC's HITAC meetings are advised that the agency is not responsible for providing wireless access or access to electrical outlets.
ONC welcomes the attendance of the public at its HITAC meetings. Seating is limited at the location, and ONC will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Lauren Richie at least seven (7) days in advance of the meeting.
Notice of these meetings are given under the Federal Advisory Committee Act (Pub. L. No. 92-463 , 5 U.S.C., App. 2).
National Institutes of Health, HHS.
Request for Information.
This Request for Information (RFI) is intended to gather broad public input to assist the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK) in developing the NIDDK Strategic Plan. NIDDK invites input from: The scientific research community; patients and caregivers; health care providers and health advocacy organizations; scientific and professional organizations; federal agencies; and other stakeholders, including interested members of the public. Organizations are strongly encouraged to submit a single response that reflects the views of their organization and their membership as a whole.
Comments must be received by 11:59:59 p.m. (ET) on May 18, 2020 to ensure consideration.
All comments must be submitted electronically on the submission website, available at
Please direct all inquiries to: Lisa
In accordance with the 21st Century Cures Act, NIH is required to regularly update their strategic plans. The National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK) is embarking on an Institute-wide strategic planning process. The goal of the process is to develop a broad vision for accelerating research into the causes, prevention, and treatment of diseases and conditions within the Institute's mission. This overarching trans-NIDDK Strategic Plan will complement NIDDK's disease-specific planning efforts. The strategic plan will have a 5-year time horizon but will also include planning for longer term efforts that could be initiated within this time frame.
A critical component of this strategic planning process is to seek input from the research and patient communities and others who have an interest in research within the mission of NIDDK. As part of that approach, the purpose of this Request for Information (RFI) is to invite input on opportunities and strategies to advance NIDDK's mission.
NIDDK will use responses collected as part of this RFI to inform the development of the Institute-wide Strategic Plan, which will be posted in draft form for additional public comment.
NIDDK conducts and supports biomedical research and research training and disseminates science-based information on: Diabetes and other endocrine and metabolic diseases; digestive diseases, including liver, gastrointestinal, and other diseases; nutritional disorders; obesity; and kidney, urologic, and hematologic diseases, to improve people's health and quality of life. Based on this mission, NIDDK has formulated the following broad themes for input, as a starting point for the planning process:
• Advancing understanding of biological pathways and environmental contributors to health and disease.
• Advancing progress in pivotal clinical studies and trials for prevention, treatment, and cures in diverse populations.
• Advancing dissemination and implementation research on strategies to identify, adapt, scale-up, and integrate evidence-based interventions in diverse settings and populations.
• Promoting participant engagement—including patients and other participants as true partners in research.
• Advancing research training and career development to promote a talented, diverse biomedical research workforce.
• Promoting innovation, rigor and reproducibility in research, partnerships, communicating research results, and other critical efforts as part of efficient and effective stewardship of public resources.
NIDDK invites input from: The scientific research community; patients and caregivers; health care providers and health advocacy organizations; scientific and professional organizations; federal agencies; and other stakeholders, including interested members of the public.
NIDDK seeks input on any of the broad themes above. Your comments could include any of the following: Research opportunities for the themes highlighted above; innovative strategies to advance research progress; the challenges to progress in these areas; emerging trends, advances, technologies, analytic strategies, challenges in big data science, and perspectives that NIDDK should consider in this planning process; potential approaches to gauge research progress and success. Please also comment on any other topic that you find relevant to the development of the NIDDK Institute-wide Strategic Plan.
Organizations are strongly encouraged to submit a single response that reflects the views of their organization and membership as a whole.
Responses to this RFI are voluntary and may be submitted anonymously. Please do not include any information that you do not wish to make public. Proprietary, classified, confidential, or sensitive information should not be included in your response. The Government will use the information submitted in response to this RFI at its discretion. Individual feedback will not be provided to any responder. The Government reserves the right to use any submitted information on public websites, in reports, in summaries of the state of the science, in any possible resultant solicitation(s), grant(s), or cooperative agreement(s), or in the development of future funding opportunity announcements. This RFI is for informational and planning purposes only and is not a solicitation for applications or an obligation on the part of the Government to provide support for any ideas identified in response to it. Please note that the Government will not pay for the preparation of any information submitted or for use of that information.
NIDDK looks forward to your input and we hope that you will share this RFI with your colleagues.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces that U.S. Customs and Border Protection (CBP) has postponed the customs broker's license examination scheduled for April 1, 2020. The examination is postponed due to the unprecedented situation related to the coronavirus (COVID-19), which is having a nationwide impact on CBP's ability to conduct the examination.
The customs broker's license examination scheduled for April 1, 2020 is postponed.
Randy Mitchell, Director, Commercial Operations, Revenue and Entry, Office of Trade, (202) 325-6532, or
Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides that a person (an individual, corporation, association, or partnership) must hold a valid customs broker's license and permit in order to transact customs business on behalf of others, sets forth standards for the issuance of brokers' licenses and permits, and provides for the taking of disciplinary action against brokers that have engaged in specified types of infractions. This section also provides that an examination may be conducted to assess an applicant's qualifications for a license.
The regulations issued under the authority of section 641 are set forth in Title 19 of the Code of Federal Regulations, part 111 (19 CFR part 111). Part 111 sets forth the regulations
Section 111.13 of the CBP regulations (19 CFR 111.13) sets forth the requirements and procedures for the examination for an individual broker's license and states that the customs broker's license examinations will be given on the fourth Wednesday in April and October unless the regularly scheduled examination date conflicts with a national holiday, religious observance, or other foreseeable event.
The unprecedented situation related to the coronavirus (COVID-19) has a nationwide impact on CBP's ability to conduct the customs broker's license examination. Testing facilities are being closed beyond CBP's control, and best practices for social distancing and limiting the size of gatherings militate against CBP attempting to establish alternative testing formats and sites. Accordingly, this document announces that the April 1, 2020 exam is postponed, and that the October exam date is still scheduled for October 8, 2020, as previously announced in a
U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS).
Committee management; Notice of Federal advisory committee meeting.
The Commercial Customs Operations Advisory Committee (COAC) will hold its quarterly meeting on Wednesday, April 15, 2020, in Washington, DC. The meeting will be open to the public via webinar only. There is no on-site, in-person option for this quarterly meeting.
The COAC will meet on Wednesday, April 15, 2020, from 1:00 p.m. to 5:00 p.m. EDT. Please note that the meeting may close early if the committee has completed its business. Comments must be submitted in writing no later than April 14, 2020.
The meeting will be held via webinar. The webinar link and conference number will be provided to all registrants by 10:00 a.m. EDT on April 15, 2020. For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Ms. Florence Constant-Gibson, Office of Trade Relations, U.S. Customs and Border Protection (CBP), at (202) 344-1440 as soon as possible.
Ms. Florence Constant-Gibson, Office of Trade Relations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Room 3.5A, Washington, DC 20229; telephone (202) 344-1440; facsimile (202) 325-4290; or Ms. Valarie M. Neuhart, Acting Executive Director and Designated Federal Officer at (202) 344-1440.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. Appendix. The Commercial Customs Operations Advisory Committee (COAC) provides advice to the Secretary of Homeland Security, the Secretary of the Treasury, and the Commissioner of U.S. Customs and Border Protection (CBP) on matters pertaining to the commercial operations of CBP and related functions within the Department of Homeland Security and the Department of the Treasury.
To facilitate public participation, we are inviting public comment on the issues the committee will consider prior to the formulation of recommendations as listed in the Agenda section below. Comments must be submitted in writing no later than April 14, 2020, and must be identified by Docket No. USCBP-2020-0013, and may be submitted by one (1) of the following methods:
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There will be multiple public comment periods held during the meeting on April 15, 2020. Speakers are requested to limit their comments to two (2) minutes or less to facilitate greater participation. Contact the individual listed below to register as a speaker. Please note that the public comment period for speakers may end before the time indicated on the schedule that is posted on the CBP web page,
The COAC will hear from the current subcommittees on the topics listed below and then will review, deliberate, provide observations, and formulate recommendations on how to proceed:
1. The Intelligent Enforcement Subcommittee will provide updates and recommendations from the working groups under their jurisdiction for COAC's consideration. The Intellectual Property Rights (IPR) Working Group will provide information regarding improvements in the eRecordation process and data sharing. The IPR Working Group will also provide updates and recommendations regarding the Department of Homeland
2. The Secure Trade Lanes Subcommittee will provide updates on the Trusted Trader Working Group's activities specific to Customs Trade Partnership Against Terrorism (CTPAT) Trade Compliance implementation and new forced labor program requirements. The subcommittee will also provide an analysis of the In-Bond processes with a focus on specific “Pain Point” areas by mode, that are being developed for potential solutions and to create greater efficiency and present some recommendations for deliberation. Additionally, the Export Modernization Working Group will provide updates of export data elements and opportunities for export process efficiencies. The subcommittee will also report on the activities of the Remote and Autonomous Cargo Processing Working Group.
3. The Next Generation Facilitation Subcommittee will provide an update on the progress on the Emerging Technologies Working Group's various initiatives, including the recent completion of the IPR Blockchain Proof of Concept assessment. The One U.S. Government Working Group will discuss progress on the Global Business Identifier and working group priorities. There will be a subcommittee update on the progress of the Unified Entry Processes Working Group's work towards an operational framework and the results of mapping out perceived deficiencies in the current entry process.
4. The Rapid Response Subcommittee will provide updates on the newly formed U.S.-Mexico-Canada Agreement (USMCA) Working Group, the work that has been completed by the Broker Continuing Education Taskforce, and discuss its opinion as to why continuing education is important and should be mandated.
Meeting materials will be available by April 13, 2020, at:
Fish and Wildlife Service, Interior.
Notice of availability; extension of public comment period.
The U.S. Fish and Wildlife Service (Service) is extending the public comment period for the draft environmental assessment (DEA) and habitat conservation plan (HCP) in support of an incidental take permit (ITP) application received from the Pacific Gas and Electric Company (applicant).
The comment period for the DEA and HCP addressing the ITP application for incidental take, which published on March 2, 2020 (85 FR 12319), is extended by 15 days. Please submit your written comments by 11:59 p.m. PST on April 16, 2020.
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We request that you submit comments by only the methods described above.
Joshua Emery, Senior Biologist, Conservation Planning Division; or Eric Tattersall, Assistant Field Supervisor, at the Sacramento Fish and Wildlife Office address above or by telephone at (916) 414-6600. If you use a telecommunications device for the deaf, hard-of-hearing, or speech disabled, please call the Federal Relay Service at 800-877-8339.
The U.S. Fish and Wildlife Service (Service) received an incidental take permit (ITP) application on December 2, 2019, from the Pacific Gas and Electric Company in accordance with the requirements of the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531
We are extending the public comment period on the DEA and HCP documents (see
We issue this notice pursuant to section 10(c) of the ESA (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice.
The Assistant Secretary—Indian Affairs made a final agency determination to acquire 16.57 acres, more or less, of land in trust for the Catawba Indian Nation for gaming and other purposes on March 12, 2020.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Mailstop 3543, 1849 C Street NW, Washington, DC 20240, telephone (202) 219-4066.
On March 12, 2020, the Assistant Secretary—Indian Affairs made a final agency determination to accept land into trust for the Catawba Indian Nation under the authority of the Indian Reorganization
The Assistant Secretary—Indian Affairs, on behalf of the Secretary of the Interior, will immediately acquire title to Kings Mountain Parcel, 16.57 acres, more or less, in the name of the United States of America in Trust for Catawba Indian Nation upon fulfillment of all Departmental requirements. The 16.57 acres, more or less, are described as follows:
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by 209 Departmental Manual 8.1, and is published to comply with the requirements of 25 CFR 151.12 (c)(2)(ii) that notice of the decision to acquire land in trust be promptly provided in the
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Supplement to the Draft Environmental Impact Statement (EIS) for the Willow Master Development Plan (MDP), and by this notice is announcing the opening of the comment period. The BLM is also announcing that it will hold public meetings and a subsistence-related hearing to receive comments on the Supplement to the Draft EIS and the proposed project's potential to impact subsistence resources and activities.
To ensure that comments will be considered, the BLM must receive written comments on the Willow MDP Supplement to the Draft EIS by May 4, 2020. The BLM will hold public meetings and dates, times, and locations will be announced at least 15 days in advance on the project website, as well as through public notices, media releases, social media posts, and mailings.
You may submit comments related to the Willow MDP Supplement to the Draft EIS by any of the following methods:
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You may also request to be added to the mailing list for the EIS. Documents pertaining to this supplement to the Draft EIS may be examined at
Racheal Jones, Willow EIS Project Manager, telephone: 907-290-0307; email:
The Willow MDP Draft EIS was published on August 23, 2019. The Draft EIS analyzed one No Action Alternative (Alternative A), three action alternatives (Alternatives B, C, and D), and two module delivery options (Options 1 and 2), to support a new development (Project) proposed by ConocoPhillips Alaska, Inc. on Federal oil and gas leases in the northeast area of the National Petroleum Reserve-Alaska. This targeted Supplement to the Draft EIS only addresses additional analysis for three Project components added by the Project proponent: Module delivery Option 3, a constructed freshwater reservoir, and up to three boat ramps for subsistence access.
Section 810 of the Alaska National Interest Lands Conservation Act requires the BLM to evaluate the effects of the alternatives presented in the Willow MDP Draft EIS on subsistence activities, and to hold public hearings if it finds that any alternatives may significantly restrict subsistence users. The preliminary evaluation of subsistence impact indicates that the alternatives analyzed in the Willow MDP Draft EIS and the associated cumulative impacts may significantly restrict subsistence uses for multiple communities along the North Slope. Therefore, the BLM will hold public hearings on subsistence resources and activities. Dates and times will be announced at least 15 days in advance on the project website, as well as through public notices, media releases, social media posts, and mailings.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act (NEPA) of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Lower Sonoran Field Office, Phoenix, Arizona, intends to prepare a Resource Management Plan (RMP) Amendment with an associated Environmental Assessment (EA) for the Sonoran Desert National Monument (SDNM) to address a court order related to livestock grazing on the SDNM. This notice announces the beginning of the scoping process to solicit public comments to identify issues to be addressed in the RMP Amendment/EA.
This notice initiates the 30-day public scoping process for the RMP Amendment/EA. Comments on issues may be submitted in writing until April 27, 2020. In order to be included in the analysis, all comments must be received prior to the close of the 30-day scoping period. There will be an additional public participation opportunity when the draft EA is available.
You may submit comments, issues and planning criteria related to the RMP Amendment/EA addressing livestock grazing in the SDNM by any of the methods outlined below:
Documents pertinent to this proposal may be examined at the Phoenix District Office, 21605 North 7th Avenue, Phoenix, Arizona 85027.
Edward J. Kender, Lower Sonoran Field Office Manager, telephone 623-580-5616; address 21605 North 7th Avenue, Phoenix, Arizona 85027; email
This document provides notice that the BLM Lower Sonoran Field Office, Phoenix, Arizona, intends to prepare an RMP Amendment and associated EA addressing a 2016 court order in
Preliminary planning criteria includes the following: (1) The RMP Amendment will cover BLM-administered public lands within the SDNM north of Interstate 8; (2) The EA will consider a range of reasonable alternatives; (3) The BLM will consider current scientific information, research, new technologies, and resource assessments, monitoring, and coordination; and (4) Decisions in the RMP Amendment will comply as appropriate with all applicable law, regulations, policy and guidance.
You may submit comments on issues in writing by using one of the methods listed in the
The BLM will utilize and coordinate the NEPA scoping process to help fulfill the public involvement process under the National Historic Preservation Act (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the alternatives will assist the BLM in identifying and evaluating impacts to such resources.
The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the alternatives that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the RMP Amendment/EA as a cooperating agency.
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. In the RMP Amendment/EA, the BLM will address the comments received during scoping and sort them into one of three categories for consideration:
1. Issues to be resolved in the LHE and GCA;
2. Issues to be resolved in the RMP Amendment/EA;
3. Issues beyond the scope of this RMP Amendment/EA.
The BLM will summarize the scoping effort and comments received in the Draft RMP Amendment/EA. The public is also encouraged to help identify any management questions and concerns that should be addressed in the RMP Amendment/EA. The BLM will work with interested parties to identify management decisions that are best suited to local, regional, and national needs and concerns.
The BLM will use an interdisciplinary approach to develop the RMP Amendment/EA in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines that may be involved in the RMP Amendment/EA process include: National Conservation Lands, outdoor recreation, archaeology, wildlife, rangeland management, soils, and socioeconomics.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (the “Commission”) has determined not to review an initial determination (“ID”) (Order No. 14) terminating the investigation based on withdrawal of the complaint. The investigation is hereby terminated.
Carl P. Bretscher, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2382. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
On June 25, 2019, the Commission instituted this investigation based on a complaint, as amended and supplemented, by Lighting Science Group Corp. of Cocoa Beach, Florida; Healthe, Inc. of Cocoa Beach, Florida; and Global Value Lighting, LLC of West Warwick, Rhode Island (collectively “LSG”). 84 FR 29879-80 (June 25, 2019). The amended complaint alleges violations of 19 U.S.C. 1337, as amended (“Section 337”), based upon the importation into the United States, sale for importation, and sale in the United States after importation of certain light-emitting diode products, systems, and components thereof by reason of infringement of certain asserted claims of U.S. Patent Nos. 7,098,483; 7,095,053; 8,506,118; 7,528,421; 8,674,608; 8,201,968 (“the '968 patent”); and 8,967,844 (“the '844 patent”).
At institution, the Commission ordered that two separate investigations be instituted based on the amended complaint to further efficient adjudication of the complaint allegations. Investigation No. 337-TA-1164 was instituted to determine whether there was a violation of Section 337 as to LED downlights and LED luminaires by reason of: (1) Infringement of one or more of claims 6 and 7 of the '968 patent and claim 4 of the '844 patent; and (2) false advertising the threat or effect of which is to destroy or substantially injure an industry in the United States.
The Commission previously terminated this investigation in part with respect to certain parties, accused products, and the false advertising claim.
On March 5, 2020, the presiding Administrative Law Judge issued the subject ID (Order No. 14) granting LSG's unopposed motion to terminate the investigation in its entirety, pursuant to 19 CFR 210.21(a), based on LSG's withdrawal of its complaint. Order No. 14 at 1 (Mar. 5, 2020). The ID finds no extraordinary circumstances that warrant denying the motion, while LSG asserted that there are no other agreements, written or oral, express or implied, between the parties concerning the subject matter of the investigation.
The Commission has determined not to review the subject ID. The investigation is hereby terminated.
The authority for the Commission's determination is contained in Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Office on Violence Against Women, Department of Justice.
30-Day notice.
The Department of Justice, Office on Violence Against Women (OVW) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 30 days until April 27, 2020.
Written comments and/or suggestion regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to Cathy Poston, Office on Violence Against Women, at 202-514-5430 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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Office on Violence Against Women, Department of Justice.
30-Day notice.
The Department of Justice, Office on Violence Against Women (OVW) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 30 days until April 27, 2020.
Written comments and/or suggestion regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to Cathy Poston, Office on Violence Against Women, at 202-514-5430 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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The Tribal SASP supports efforts to help survivors heal from sexual assault trauma through direct intervention and related assistance from social service organizations such as rape crisis centers through 24-hour sexual assault hotlines, crisis intervention, and medical and criminal justice accompaniment. The Tribal SASP will support such services through the establishment, maintenance, and expansion of rape crisis centers and other programs and projects to assist those victimized by sexual assault.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to
(6) An estimate of the total public burden (in hours) associated with the collection: The total annual hour burden to complete the data collection forms is 30 hours, that is 15 grantees completing a form twice a year with an estimated completion time for the form being one hour.
On March 20, 2020, the Department of Justice lodged a proposed First Partial Consent Decree and proposed Second Partial Consent Decree with the United States District Court for the Western District of Texas in the lawsuit titled
The two partial consent decrees resolve claims against Ector Drum Inc., Carl Randle Beard, Sandra Kay Beard, BB Chemicals, Inc., Continental Products of Texas, Energy Intermediates, Inc., Hess Corporation, Kel Tech, Inc., Monachem, Inc., Novastar L.P., Performance Chemical Company, Tetraco, LLC, and Wagner Supply Co., Inc. arising under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9607(a), relating to the Ector Drum Superfund Site in Ector County, Texas. Under the proposed First Partial Consent Decree, the Defendants BB Chemicals, Inc., Continental Products of Texas, Energy Intermediates, Inc., Hess Corporation, Kel Tech, Inc., Monachem, Inc., Novastar L.P., Performance Chemical Company, Tetraco, LLC, and Wagner Supply Co., Inc. will pay, collectively, $1,575,255 to the United States resolve the United States' claims. Under the proposed Second Partial Consent Decree, Defendants Ector Drum Inc., Carl Randle Beard, and Sandra Kay Beard will endeavor to sell the property on which the Site is located and pay a specified portion of the proceeds of any sale(s) to the United States.
The publication of this notice opens a period for public comment on the proposed First Partial Consent Decree and Second Partial Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $7.75 for the First Partial Consent Decree and $7.25 for the Second Partial Consent Decree (25 cents per page reproduction cost) payable to the United States Treasury.
Office on Violence Against Women, Department of Justice.
30-Day notice.
The Department of Justice, Office on Violence Against Women (OVW) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 30 days until April 27, 2020.
Written comments and/or suggestion regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to Cathy Poston, Office on Violence Against Women, at 202-514-5430 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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The primary purpose of the OVW Technical Assistance Program is to provide direct assistance to grantees and their subgrantees to enhance the success of local projects they are implementing with VAWA grant funds. In addition, OVW is focused on building the capacity of criminal justice and victim services organizations to respond effectively to sexual assault, domestic violence, dating violence, and stalking and to foster partnerships between organizations that have not traditionally worked together to address violence against women, such as faith- and community-based organizations.
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Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employment and Training Administration (ETA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before April 27, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or by email at
Forms ETA 652, 655 and 682 are used to obtain information for screening and enrollment purposes to determine eligibility for the Job Corp program in accordance with the requirements of the Workforce Investment Act. They concern questions of economic criteria and past behavior problems as well as questions needed to certify an applicant's arrangements for care of a dependent child(ren) while the applicant is in Job Corps. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Wage and Hour Division (WHD)-sponsored information
The OMB will consider all written comments that agency receives on or before April 27, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or by email at
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provides that no person shall engage in any farm labor contracting activity for any money or valuable consideration paid or promised to be paid, unless such person has a certificate of registration from the Secretary of Labor specifying which farm labor contracting activities such person is authorized to perform. See 29 U.S.C. 1802(7), 1811(a); 29 CFR 500.1(c), -.20(i), -.40. MSPA also provides that a Farm Labor Contractor (FLC) shall not hire, employ, or use any individual to perform farm labor contracting activities unless such individual has a certificate of registration as a FLC or a certificate of registration as a Farm Labor Contractor Employee (FLCE) of the FLC that authorizes the activity for which such individual is hired, employed or used. 29 U.S.C. 1811(b); 29 CFR 500.1(c). Form WH-530 is an application used to obtain a Farm Labor Contractor License. This information collection is currently approved for use through March 31, 2020. MSPA section 401 (29 U.S.C. 1841) requires, subject to certain exceptions, all Farm Labor Contractors (FLCs), Agricultural Employers (AGERs), and Agricultural Associations (AGASs) to ensure that any vehicle they use or cause to be used to transport or drive any migrant or seasonal agricultural worker conforms to safety and health standards prescribed by the Secretary of Labor under the MSPA and with other applicable Federal and State safety standards. These MSPA safety standards address the vehicle, driver, and insurance. The Wage and Hour Division (WHD) has created Forms WH-514, WH-514a, and WH-515, which allow FLC applicants to verify to the WHD that the vehicles used to transport migrant/seasonal agricultural workers meet the MSPA vehicle safety standards and that anyone who drives such workers meets the Act's minimum physical requirements. The WHD uses the information in deciding whether to authorize the FLC/FLC Employee applicant to transport/drive any migrant/seasonal agricultural worker(s) or to cause such transportation. Form WH-514 is used to verify that any vehicle used or caused to be used to transport any migrant/seasonal agricultural worker(s) meets the Department of Transportation (DOT) safety standards. When the adopted DOT rules do not apply, FLC applicants seeking authorization to transport any migrant/seasonal agricultural workers use Form WH-514a to verify that the vehicles meet the DOL safety standards and, upon the vehicle meeting the required safety standards, the form is completed. Form WH-515 is a doctor's certificate used to document that a motor vehicle driver or operator meets the minimum DOT physical requirements that the DOL has adopted. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
44 U.S.C. 3507(a)(1)(D).
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, “Safeguards on Nuclear Material—Implementation of United States/International Atomic Energy Agency Agreement (US/IAEA).”
Submit comments by May 26, 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-2019-0217 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-2019-0217 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. 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.
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.
Application for direct transfer of license; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) received and is considering approval of an application filed by GPU Nuclear, Inc., Metropolitan Edison Company, Jersey Central Power and Light Company, Pennsylvania Electric Company (collectively, the FirstEnergy Companies), and TMI-2 Solutions, LLC (together with the FirstEnergy Companies, the Applicants) on November 12, 2019. The application seeks NRC approval of the direct transfer of NRC Possession-Only License No. DPR-73 for Three Mile Island Nuclear Station, Unit No. 2 (TMI-2) from the current holders, the FirstEnergy Companies, to TMI-2 Solutions, LLC, which is an indirect wholly owned subsidiary of Energy
Comments must be filed by April 27, 2020. A request for a hearing must be filed by April 15, 2020. Any potential party as defined in § 2.4 of title 10 of the
You may submit comments by any of the following method:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Ted Smith, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6721; email:
Please refer to Docket ID NRC-2020-0082 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-2020-0082 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 NRC is considering the issuance of an order under 10 CFR 50.80 approving the direct transfer of NRC Possession-Only License No. DPR-73 for TMI-2, currently held by the FirstEnergy Companies. The transfer would be to TMI-2 Solutions, LLC. The NRC is also considering amending the possession-only license for administrative purposes to reflect the proposed transfer. The application now being considered is dated November 12, 2019, and was filed by the Applicants (ADAMS Accession No. ML19325C600).
Following approval of the proposed direct transfer of the license, TMI-2 Solutions, LLC would acquire ownership of the TMI-2 facility. TMI-2 Solutions, LLC would be responsible for the maintenance and decommissioning of the TMI-2 facility.
No physical changes to the TMI-2 facility or operational changes are being proposed in the application.
The NRC's regulations at 10 CFR 50.80 state that no license, or any right
Before issuance of the proposed conforming amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations. As provided in 10 CFR 2.1315, unless otherwise determined by the Commission with regard to a specific application, the Commission has determined that any amendment to the license of a utilization facility which does no more than conform the license to reflect the transfer action, involves no significant hazards consideration. No contrary determination has been made with respect to this specific license amendment application. In light of the generic determination reflected in 10 CFR 2.1315, no public comments with respect to significant hazards considerations are being solicited, notwithstanding the general comment procedures contained in 10 CFR 50.91.
Within 30 days from the date of publication of this notice, persons may submit written comments regarding the license transfer application, as provided for in 10 CFR 2.1305. The Commission will consider and, if appropriate, respond to these comments, but such comments will not otherwise constitute part of the decisional record. Comments should be submitted as described in the
Within 20 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 20 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 20 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located at the bottom of the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail at of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
The Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the
Any person who desires access to proprietary, confidential commercial information that has been redacted from the application should contact the applicant by telephoning Gregory Halnon, GPU Nuclear, Inc., at 330-761-4270 for the purpose of negotiating a confidentiality agreement or a proposed protective order with the applicant. If no agreement can be reached, persons who desire access to this information may file a motion with the Secretary and addressed to the Commission that requests the issuance of a protective order.
For the Nuclear Regulatory Commission.
Occupational Safety and Health Review Commission.
Annual notice.
Notice is given of the appointment of members to the Performance Review Board (PRB) of the Occupational Safety and Health Review Commission.
Membership is effective on March 26, 2020.
Linda M. Beard, Human Resources Specialist, U.S. Occupational Safety and Health Review Commission, 1120 20th Street NW, Washington, DC 20036, (202) 606-5393.
The Review Commission, as required by 5 U.S.C. 4314(c)(1) through (5), has established a Senior Executive Service PRB. The PRB reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and makes recommendations to the Chairman of the Review Commission regarding performance ratings, performance awards, and pay-for-performance adjustments. Members of the PRB serve for a period of 24 months. In the case of an appraisal of a career appointee, more than half of the members shall consist of career appointees, pursuant to 5 U.S.C. 4314(c)(5). The names and titles of the PRB members are as follows:
• Charlotte Dye, Deputy General Counsel, Office of General Counsel, Federal Labor Relations Authority;
• Gisile Goethe, Director, Office of Resource Management, Federal Retirement Thrift Investment Board;
• Kimberly Moseley, Executive Director, Federal Service Impasses Panel; and
• Christopher J. Roscetti, Technical Director at the Defense Nuclear Facilities Safety Board.
March 21, 2020, at 11:00 a.m.
Washington, DC.
Closed.
1. Administrative Issues.
2. Strategic Issues.
On March 21, 2020, a majority of the members of the Board of Governors of the United States Postal Service voted unanimously to hold and to close to public observation a special meeting in Washington, DC, via teleconference. The Board determined that no earlier public notice was practicable.
Michael J. Elston, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260-1000. Telephone: (202) 268-4800.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend Exchange Rule 100, Definitions; and Exchange Rule 503, Openings on the Exchange.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 100 to adopt new definitions for the terms “Composite Market,” “Composite Width,” and “Maximum Composite Width.” The Exchange also proposes to amend Exchange Rule 503, to incorporate the proposed Composite Market into its opening process. Finally, the Exchange proposes to make minor non-substantive changes to Rule 503 to correct internal cross-references within the Exchange's rulebook. The Exchange believes that incorporating the concept of a Composite Market into its existing opening process will improve the speed and efficiency of the opening process without impairing price discovery.
The Exchange proposes to amend Exchange Rule 100 to adopt a new definition for Composite Market that will mean, “the market for a series comprised of (1) the higher of the then-current best appointed Market Maker
The Exchange may modify these amounts when it deems necessary to maintain a fair and orderly opening process (which modifications the Exchange will announce to Members
The Exchange proposes to amend Exchange Rule 503, Openings on the Exchange, to incorporate the Composite Market into the Exchange's opening process. The Composite Market will be used during the opening process to determine whether or not to open a series for trading. The Exchange believes it is appropriate to consider any quotes from away markets in addition to quotes on its own market when determining whether to open a series, because consideration of all then-available pricing information may provide for more accurate opening prices.
The Exchange's current opening process is dependent upon the presence of valid width quotes to begin.
Paragraph (e) Starting the Opening Process, of Exchange Rule 503, provides that, (1) the opening process cannot occur prior to 9:30 a.m. Eastern Time and can only begin following the dissemination of a quote or trade in the market for the underlying security. Following the dissemination of a quote or a trade in the market for the underlying security, the System
The current rule further provides that (2) for purposes of this rule a valid width NBBO is one where the bid and offer of the NBBO differ by no more than differences outlined in Exchange Rule 603(b)(4)(i); (3) also, for purposes of this rule, valid width quote is one where the bid and offer, comprised of a Market Maker's Standard quotes and Day eQuotes, differ by no more than the differences outlined in Exchange Rule 603(b)(4)(i); (4) if after two minutes following the dissemination of a quote or trade in the market for the underlying security none of the provisions set forth in (e)(1) above have occurred, then the opening process can begin when one Market Maker has submitted its valid width quote; (5) the Primary Lead Market Maker assigned in a particular equity option class must enter valid width quotes not later than one minute following the dissemination of a quote or trade by the market for the underlying security; and (6) a Registered Market Maker
The Exchange now proposes to amend paragraph (e) of Rule 503 to remove certain references to valid width quotes and to incorporate the Composite Market into the opening process as described below. Specifically, proposed paragraph (e) Starting the Opening Process, will provide that (1) the opening process cannot occur prior to 9:30 a.m. Eastern Time and can only begin following the dissemination of a quote or trade in the market for the underlying security. Following the dissemination of a quote or a trade in the market for the underlying security, the System will pause for a period of time no longer than one half second to allow the market place to absorb this information. The length of the pause will be disseminated to members through a Regulatory Circular. After the conclusion of the pause the opening process will begin when either: (i) The Primary Lead Market Maker's quote has been submitted; (ii) the quotes of at least two Market Makers, where at least one is a Lead Market Maker, have been submitted; or (iii) for multiply listed option classes, at least one Eligible Exchange (as defined in Rule 1400(g)) has disseminated a quote in the individual option in accordance with Rule 1402(a), and the quote of at least one Lead Market Maker has been submitted.
The Exchange also proposes to adopt new subsection (7) to paragraph (e) that will state, “[i]f the Composite Width is equal to or less than the Maximum Composite Width,
The proposal describes the opening process, which will begin when at least one of the prerequisite triggers has been satisfied,
For each series of options
The examples below illustrate the operation of the current opening process and the proposed opening process as described herein.
Upon opening of the Underlying Security and a brief pause, the opening process for the related option products is initiated. The quote from the PLMM to buy 10 options at a price of 23.90 and sell 10 options at a price of 30.50 remains unchanged from the pre-opening. The Away Best Bid and Offer (ABBO) which is not considered pre-open, updates to reflect 0.00 x 24.00.
Because the quote from the PLMM is not considered a valid width quote, nor is the quote from the ABBO considered valid width, the option products remain unopened.
Upon opening of the Underlying Security and a brief pause, the opening process for the related option products is initiated. The quote from the PLMM to buy 10 options at a price of 23.90 and sell 10 options at a price of 30.50 remains unchanged from the pre-opening. The Away Best Bid and Offer (ABBO) which is not considered pre-open, updates to reflect 0.00 x 24.00.
The higher of the PLMM bid and the ABB, and the lower of the PLMM offer and the ABO, creates a Composite Market of 23.90 x 24.10, which has a Composite Width of 0.10. Under the proposed rule the Composite Width is equal to or less than the Maximum Composite Width, the opening process continues, and the option products could be opened.
Additionally, the Exchange proposes to amend subsection (f)(2)(i), Expanded Quote Range, of Rule 503, to further incorporate the Composite Market into the opening process. Currently, if there are quotes or orders that lock or cross each other, the System calculates an Expanded Quote Range (“EQR”) to
The Exchange now proposes to amend subsection (f)(2)(i)(A)1. to provide that, to determine the minimum value for the EQR, an amount, as defined in a table to be determined by the Exchange, will be subtracted from the Composite Bid. Further, subsection (f)(2)(i)(A)1. will be amended to provide that, to determine the maximum value for the EQR, an amount, as defined in a table to be determined by the Exchange, will be added to the Composite Offer.
Additionally, subsection (f)(2)(i)(A)2. will be amended to provide that, if one or more away markets have disseminated quotes that are not crossed and together comprise a valid width market, and the Composite Market crosses an ABBO, or is internally crossed, then: (a) The minimum value for the EQR will be the Composite Offer less an amount, as defined in a table to be determined by the Exchange, and (b) the maximum value for the EQR will be the Composite Bid plus an amount, as defined in a table to be determined by the Exchange.
The Exchange also proposes to amend subsection (f)(2)(i)(B)1. to provide that, except as provided in subparagraph (3) of Rule 503(f)(2)(i)(B), to determine the minimum value for the EQR, an amount, as defined in a table to be determined by the Exchange, will be subtracted from the Composite Bid; and 2. to provide that, except as provided in subparagraph (3) of Rule 503(f)(2)(i)(B) to determine the maximum value for the EQR, an amount, as defined in a table to be determined by the Exchange, will be added to the Composite Offer.
Additionally, subsection (f)(2)(i)(B)3. will be amended to provide that, if there are quotes on the Exchange that cross each other, and there is no away market in the affected series, then; (a) the minimum value for the EQR will be the Composite Offer less an amount, as defined in a table to be determined by the Exchange; and (b) the maximum value for the EQR will be the Composite Bid plus an amount, as defined in a table to be determined by the Exchange.
The Exchange believes that incorporating the Composite Market into the EQR calculation is beneficial to market participants because the EQR provides a more accurate measure as to whether there is sufficient available liquidity in the broader market system to provide a fair and orderly opening process and sufficient price discovery for the options to open for trading because it incorporates the prices on away markets into its evaluation.
Finally, the Exchange proposes to amend Exchange Rule 503(f)(2)(vii)(B)(5)a. to make a non-substantive change to correct an internal cross-reference within the Exchange's rulebook. Currently the rule provides that, if the option is being used in the calculation of a final settlement price of an Index pursuant to Chapter XVIII of Exchange Rules on expiration date, then . . . the System will instead conduct a further imbalance process to trade the entire imbalance amount, as described in Exchange Rule 1809. The Exchange proposes to replace Chapter XVIII with Policy .02 of Exchange Rule 503; and to replace Exchange Rule 1809 with Policy .03 of Exchange Rule 503. While Chapter XVIII of the Exchange Rules describes Index Options, and Exchange Rule 1809, describes Terms of Index Options Contracts, the final settlement price calculation for an Index Option is described in Exchange Rule 503, specifically in Policy .02 and .03.
MIAX Options believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes that the proposed addition of a Composite Market into the Exchange's existing opening process promotes just and equitable principles of trade, removes impediments to and perfects the mechanism of a free and open market and a national market system and, in general protects investors and the public interest by improving the Exchange's opening process by creating additional opportunities for price discovery based on then-current market conditions. The Exchange believes it is appropriate to consider any quotes from away markets in addition to quotes on its own market when determining whether to open an option series in all classes, because consideration of all then-available pricing information may provide for more accurate opening prices. By incorporating a Composite Market, which includes prices from away exchanges, the Exchange believes the proposed opening process will promote competitive liquidity and open option series at prices consistent with then-current market conditions, and thus will promote a faster and more efficient opening process.
The Exchange believes that removing the requirement that a Market Maker's submitted quotes must be valid width as a pre-requisite to beginning the opening process is benign in light of the new proposed process. Under the Exchange's current Rule the Exchange would begin the opening process when either (i) the Primary Lead Market Maker's valid width quote has been submitted; (ii) the valid width quotes of at least two Market Makers, where at least one is a Lead Market Maker, have been submitted; or (iii) for multiply listed option classes, at least one Eligible Exchange (as defined in Rule 1400(g)) has disseminated a quote in the individual option in accordance with Rule 1402(a), there is a valid width NBBO available and the valid width quote of at least one Lead Market Maker has been submitted. Valid width quotes were required to ensure that the Exchange did not open at prices that were extreme and potentially erroneous.
The Exchange is proposing to remove the valid width evaluation from Rule 503(e)(1)(i) (ii) and (iii) as described above; and to relocate the evaluation of quotes for valid width to a separate provision (new proposed paragraph 503(e)(7)) in the Rule. The Exchange is proposing to adopt new rule text
The Exchange notes that at least two other option exchanges' opening processes do not require Market Maker valid width quotes. The Cboe Exchange similarly employs a Composite Market,
The Cboe Exchange provides that it may modify these amounts during the opening auction process when it deems necessary to maintain a fair and orderly opening process (which modifications the Exchange disseminates to all subscribers to the Exchange's data feeds that deliver opening auction updates).
On the Cboe Exchange the term “Opening Collar' means the price range that establishes limits at or inside of which the System determines the Opening Trade price for a series. The Opening Collar is determined by determining the midpoint of the Composite Market, and adding and subtracting half of the applicable width amount above and below, respectively, that midpoint. The Opening Collar widths for all classes on the Cboe Exchange are as follows (based on the Composite Bid for a series):
The Cboe Exchange provides that it may modify these amounts during the opening auction process when it deems necessary to maintain a fair and orderly opening process (which modifications the Cboe Exchange disseminates to all subscribers to the Exchange's data feeds that deliver opening auction updates).
Similarly, the NYSE American Exchange does not require valid width quotes from a Market Maker to open option series. At or after 9:30 a.m. Eastern Time, the NYSE American Exchange rules provide that once the primary market for the underlying security disseminates a quote and a trade that is at or within the quote, the related option series will be opened automatically based on the following principles and procedures: (A) The system will determine a single price at which a particular option series will be opened. (B) Orders and quotes in the system will be matched up with one another based on price-time priority; provided, however, that orders will have priority over Market Maker quotes at the same price. (C) Orders in the System Book that were not executed during the Auction Process shall become eligible for the Core Trading Session immediately after the conclusion of the Auction Process. (D) The System will not conduct an Auction Process if the bid-ask differential for that series is not within an acceptable range. For the purposes of this rule, an acceptable range shall mean within the bid-ask differential guidelines established pursuant to Rule 925NY(b)(4).
The Cboe Exchange, NYSE American Exchange, and the MIAX Options Exchange have all established unique bid/ask differentials at the various bid levels, that allow each exchange to open at prices which are not extreme. The Exchange believes that defining a default Maximum Composite Width provides transparency in the Exchange's rules concerning its opening process.
The Exchange believes that its proposed opening process is substantially similar to its current opening process: (i) The proposed Composite Market Width default values are based on the Exchange's current opening valid width values; and (ii) the proposed Composite Market Width check is similar to the Exchange's current valid width quote check which
The Exchange believes the inclusion of the ABBO in the composition of the Composite Market will continue to provide opportunities for price discovery based on then-current market conditions when the Exchange opens series for trading. The Exchange believes the proposed opening process will promote competitive liquidity and open series at prices consistent with then-current market conditions, and thus will promote a fair and orderly opening process. The Exchange believes that ensuring that the Composite Width is equal to or less than the Maximum Composite Width ensures that the Exchange will not open at prices which are extreme. The Exchange believes it is appropriate to open a series under the proposed circumstances and provide marketable orders with an opportunity to execute at a reasonable price, because there is minimal risk of execution at an extreme price.
Additionally, the Exchange believes using the Composite Market to establish the Expanded Quote Range, which represents the limits of the range in which transactions may occur during the opening process,
The Exchange believes adopting new rule text to provide that for the purposes of this rule a valid width market is one where the Composite Width is equal to or less than the Maximum Composite Width, promotes just and equitable principles of trade, removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest by providing clarity and precision in the Exchange's rules thereby mitigating any potential investor confusion.
Similar to the Exchange's EQR, which represents the limits of the range in which transaction may occur during the opening process, the Cboe Exchange employs an Opening Collar
Further, under the Exchange's proposal Market Makers on the Exchange are not relieved of their obligations. Primary Lead Market Makers assigned in a particular equity option class must enter valid width quotes
Additionally, Market Makers on the Exchange are required to fulfill their quoting obligations as described in Exchange Rule 603, Obligations of Market Makers, and Rule 604, Market Maker Quotations. Exchange Rule 603(b) provides that with respect to each options class to which a Market Maker is appointed under Exchange Rule 602, the Market Maker has a continuous obligation to engage, to a reasonable degree under the existing circumstances, in dealings for his own account when there exists, or it is reasonably anticipated that there will exist, a lack of price continuity, a temporary disparity between the supply of and demand for a particular option contract, or a temporary distortion of the price relationships between option contracts of the same class. Without limiting the foregoing, a Market Maker is expected to perform the following activities in the course of maintaining a fair and orderly market: (1) To compete with other Market Makers to improve the market in all series of options classes to which the Market Maker is appointed; (2) to make markets that, absent changed market conditions, will be honored for the number of contracts entered into the System in all series of options classes to which the Market Maker is appointed; (3) To update market quotations in response to changed market conditions in all series of options classes to which the Market Maker is appointed; (4)(i) to price option contracts fairly by, among other things, bidding and offering so as to create differences of no more than $5 between the bid and offer (“bid/ask differentials”) following the opening rotation in an equity contract.
Under Exchange Rule 604, Market Maker Quotations, a Primary Lead Market Maker must provide continuous two-sided Standard quotes and/or Day eQuotes in at least the lesser of 99% of the non-adjusted option series, or 100% of the non-adjusted option series minus one put-call pair, in each class in which the Primary Lead Market Maker is assigned.
Market Makers on the Exchange receive a priority allocation under Exchange Rule 514, Priority of Quotes and Orders. Specifically, as described in Exchange Rule 514(e), after executions resulting from Priority Overlays set forth in paragraph (d) of Rule 514, when the pro-rata allocation method applies: (1) If there is interest at the NBBO, after all Priority Customers (if any) at that price have been filled, executions at that price will be first allocated to other remaining Market Maker priority quotes, which have not received a participation entitlement,
To be considered a priority quote, at the time of execution, each of the following standards must be met: (A) The bid/ask differential of a Market Maker's two-sided quote pair must be valid width (no wider than the bid/ask differentials outlined in Rule 603(b)(4)); (B) the initial size of both of the Market Maker's bid and the offer must be in compliance with the requirements of Rule 604(b)(2); (C) the bid/ask differential of a Market Maker's two-sided quote pair must meet the priority quote width requirements defined in subparagraph (ii) of Rule 517(b)
The Exchange notes that the definition of a priority quote is not changing under this proposal nor is the allocation methodology. While the Exchange's proposal may provide for faster openings on the Exchange it does not relieve Market Makers from fulfilling their obligations on the Exchange as described herein.
The proposed non-substantive rule changes are intended to correct inaccurate internal rule cross-references and are designed to protect investors by ensuring that the Exchange's rules accurately reference the proper rule, thereby mitigating any potential investor confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed rule change to amend the opening process will impose any burden on intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act, because it will apply to orders and quotes of all market participants in the same manner.
The Exchange does not believe that the proposed rule change to amend the opening process will impose any burden on inter-market competition that is not necessary or appropriate in furtherance of the purposes of the Act, because it is designed to open series on the Exchange in a fair and orderly manner. The Exchange believes the proposed opening process will continue to provide market participants with an opportunity for price discovery based on then-current market conditions when the Exchange opens series for trading. This will facilitate the presence of sufficient liquidity in a series when it opens, and increase the ability of series to open at prices consistent with then-current market conditions (at the Exchange and on other exchanges) rather than at extreme prices that could potentially result in unfavorable executions to market participants.
The Exchange does not believe that the proposed rule change to amend the EQR calculation will impose any burden on inter-market competition that is not necessary or appropriate in furtherance of the purposes of the Act, because incorporating the Composite Market into the EQR calculation is designed to improve the limits of the range within which transactions may occur during the opening process and allow the Exchange to open at prices which are not extreme.
The Exchange does not believe that the proposed rule change will impose any burden on intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act, as all market participants that participate in the opening process may benefit equally from the proposal, as the rules of the Exchange apply equally to all Exchange Members.
Additionally, the non-substantive changes proposed by the Exchange provide additional clarity and detail in the Exchange's rules and are not changes made for any competitive purpose.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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
• 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)
The Exchange proposes to amend the NYSE Arca Equities Fees and Charges (“Fee Schedule”) to (1) amend the requirement to qualify for the Tape B Tier 1 pricing tier; (2) amend the per share fee for PO Orders routed to the Nasdaq Stock Market LLC; (3) adopt a per share fee for PO Orders routed to Cboe BZX Exchange, Inc.; (4) adopt a cap applicable to the Step Up Tier 4 credit in Tape B securities; and (5) amend the requirement to qualify for the tiered-rebate structure applicable to Lead Market Makers and to ETP Holders affiliated with such Lead Market Makers. The proposed rule 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 amend the Fee Schedule to (1) amend the requirement to qualify for the Tape B Tier 1 pricing tier; (2) amend the per share fee for Primary Only (“PO”) Orders
The proposed changes respond to the current competitive environment where order flow providers have a choice of where to direct liquidity-providing orders by offering further incentives for ETP Holders and LMMs to send additional displayed liquidity to the Exchange.
The Exchange proposes to implement the fee changes effective March 11, 2020.
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
As the Commission itself recognized, the market for trading services in NMS stocks has become “more fragmented and competitive.”
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can move order flow or discontinue or reduce use of certain categories of products. While it is not possible to know a firm's reason for shifting order flow, the Exchange believes that one such reason is because of fee changes at any of the registered exchanges or non-exchange venues to which a firm routes order flow. With respect to non-marketable order flow that would provide displayed liquidity on an Exchange against which market makers can quote, ETP Holders and LMMs can choose from any one of the 13 currently operating registered exchanges to route such order flow. Accordingly, competitive forces constrain exchange transaction fees and credits that relate to orders that would provide displayed liquidity on an exchange.
The proposed rule change is designed to be available to all ETP Holders on the Exchange, and with respect to the LMM credits, the proposed rule change is designed to be available to all LMMs on the Exchange, and is intended to provide ETP Holders and LMMs an opportunity to receive enhanced rebates by quoting and trading more on the Exchange.
The Exchange currently provides credits to ETP Holders who submit orders that provide displayed liquidity on the Exchange. The Exchange currently has multiple levels of credits for orders that provide displayed liquidity that are based on the amount of volume of such orders that ETP Holders send to the Exchange.
Currently, a Tape B Tier 1 credit of $0.0030
• at least 1.00% of US Tape B CADV for the billing month of February 2020.
• at least 1.15% of US Tape B CADV for the billing month of March 2020.
• at least 1.25% of US Tape B CADV for the billing month of April 2020 and each billing month thereafter.
The Exchange proposes to amend the 1.00% CADV requirement so that it would continue to apply for an additional three months,
The Exchange is not proposing any change to the level of credits applicable under the Tape B Tier 1 pricing tier.
The proposed rule change would allow a greater number of ETP Holders to qualify for the pricing tier as the lower CADV requirement would remain in place for an additional period of time. The proposed rule change would continue to encourage ETP Holders to promote price discovery and market quality for the benefit of all market participants. As noted above, the Exchange operates in a competitive environment, particularly as it relates to attracting non-marketable orders, which
Currently, under Tier 1, Tier 2 and Basic Rates sections of the Fee Schedule, the Exchange currently charges a per share fee of $0.0010 for PO Orders in Tape C securities that are routed to Nasdaq and execute in the opening or closing auction.
Additionally, the Exchange proposes to adopt a fee of $0.0030 per share in the Basic Rates section of the Fee Schedule for PO Orders in Tape B securities that are routed to Cboe BZX for execution in the opening or closing auction on that market. The Exchange currently does not charge a fee for routing PO Orders to Cboe BZX. The purpose of the proposed fee is to simplify the Fee Schedule and maintain consistency with respect to the fee charged by the Exchange when it routes orders for execution in an away market's auction.
The Exchange currently has multiple levels of step-up pricing tiers, Step Up Tiers 1-4, which are designed to encourage ETP Holders that provide displayed liquidity on the Exchange to increase that order flow, which would benefit all ETP Holders by providing greater execution opportunities on the Exchange. In order to provide an incentive for ETP Holders to direct providing displayed order flow to the Exchange, the credits increase in the various tiers based on increased levels of volume directed to the Exchange.
Currently, the following credits are available to ETP Holders that provide increased levels of displayed liquidity on the Exchange:
Under the Step Up Tier 4, if an ETP Holder increases its providing liquidity on the Exchange by a specified percentage over the level that such ETP Holder provided liquidity in September 2019, it is eligible to earn higher credits for providing displayed liquidity. Specifically, to qualify for the credits under the Step Up Tier 4, an ETP Holder must directly execute providing average daily volume (ADV) per month that is an increase of no less than 0.55% of US CADV for that month over the ETP Holder's providing ADV in September 2019, taken as a percentage of US CADV.
Currently, if an ETP Holder meets these Step Up Tier 4 qualifications, such ETP Holder is eligible to earn a credit of:
• $0.0033 per share for orders that provide displayed liquidity to the Book in Tape A and Tape C Securities, and
• $0.0034 per share for orders that provide displayed liquidity to the Book in Tape B Securities.
With this proposed rule change, the Exchange proposes to adopt a cap applicable to the Step Up Tier 4 credit in Tape B securities. As proposed, ETP Holders that qualify for Step Up Tier 4 would not receive any additional incremental Tape B Tier credits for providing displayed liquidity, including any incremental credits associated with Less Active ETP Securities.
The purpose of the proposed rule change is to continue to incentivize order flow providers to send liquidity-providing orders to the Exchange while capping the level of credit that such participants would receive. The Exchange believes that, although it is proposing to limit the financial incentive for orders that provide displayed liquidity in Tape B securities, the current rebate,
The Exchange is not proposing any change to the level of credits applicable under the Step Up Tier 4.
The Exchange currently provides tier-based incremental credits for orders that provide displayed liquidity in Tape B securities to the NYSE Arca Book.
• An additional credit of $0.0004 per share if an LMM is registered as the LMM in at least 400 Less Active ETP Securities or at least 300 Less Active ETP Securities if the LMM and ETP Holders and Market Makers affiliated with such LMM add liquidity in all securities of at least 1.00% of US CADV.
• An additional credit of $0.0003 per share if an LMM is registered as the LMM in at least 200 but less than 400 Less Active ETP Securities or in at least 200 but less than 300 Less Active ETP Securities if the LMM and ETP Holders and Market Makers affiliated with such LMM add liquidity in all securities of at least 1.00% of US CADV.
• An additional credit of $0.0002 per share if an LMM is registered as the LMM in at least 100 but less than 200 Less Active ETP Securities.
• An additional credit of $0.0001 per share if an LMM is registered as the LMM in at least 75 but less than 100 Less Active ETP Securities.
• An additional credit of $0.00005 per share if an LMM is registered as the LMM in at least 50 but less than 75 Less Active ETP Securities.
The number of Less Active ETP Securities for the billing month is based on the number of Less Active ETP Securities in which an LMM is
With this proposed rule change, the Exchange proposes that the CADV requirement of less than 100,000 shares, or 0.010% of Consolidated Tape B ADV, which is currently determined on a previous month basis, would instead be determined on a prior calendar quarter basis.
The purpose of the proposed rule change is to encourage LMMs and ETP Holders to enhance the market quality in Tape B securities that are listed and traded on the Exchange and the Exchange believes that amending the benchmark from previous month to prior calendar quarter would serve to stabilize the number of Less Active ETP Securities and provide LMMs more consistency in the number of Less Active ETP Securities in which it is registered as the LMM, and should therefore provide LMMs increased opportunities to earn incremental credits. The Exchange believes the proposal would also encourage competition in Tape B securities quoted and traded on the Exchange. To illustrate, for the billing month of March 2020, the CADV requirement would currently be measured based on February 2020 volume. With this proposed rule change, the CADV requirement would now be measured based on volume from the prior calendar quarter,
The Exchange does not know how much order flow LMMs and ETP Holders choose to route to other exchanges or to off-exchange venues. The incremental credits in NYSE Arca-listed securities are available to all LMMs that are registered as the LMM in a security, and to ETP Holders that are affiliated with a LMM. Currently, there are no LMMs that qualify for the $0.0003 per share credit and 2 LMMs that qualify for the $0.0004 per share credit.
The proposed changes are not otherwise intended to address any other issues, and the Exchange is not aware of any significant problems that market participants would have in complying with the proposed changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
As discussed above, the Exchange operates in a highly fragmented and competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
As the Commission itself recognized, the market for trading services in NMS stocks has become “more fragmented and competitive.”
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow or discontinue to reduce use of certain categories of products, in response to fee changes. With respect to non-marketable order which provide liquidity on an Exchange, LMMs and ETP Holders can choose from any one of the 13 currently operating registered exchanges to route such order flow. Accordingly, competitive forces reasonably constrain exchange transaction fees that relate to orders that would provide displayed liquidity on an exchange. Stated otherwise, changes to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow.
Given this competitive environment, the proposal represents a reasonable attempt to attract additional order flow to the Exchange.
The Exchange believes the proposed amendment to Tape B Tier 1 is reasonable because it would maintain the current threshold in place for an additional three months before increasing levels of activity is implemented to qualify for the Tape B Tier 1 credits. The Exchange believes that keeping the current requirement in place would allow a greater number of ETP Holders to qualify for the pricing tier. The Exchange believes the proposed rule change would continue to incentivize ETP Holders to bring additional order flow to a public exchange, thereby encouraging greater participation and liquidity.
The Exchange notes that volume-based incentives and discounts have been widely adopted by exchanges, including the Exchange, and are reasonable, equitable and not unfairly discriminatory because they are available to all ETP Holders on an equal basis. They also provide additional benefits or discounts that are reasonably related to the value of the Exchange's market quality and associated higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns. Additionally, as noted above, the Exchange operates in a highly competitive market. The Exchange is one of several venues and off-exchange venues to which market participants may direct their order flow, and it represents a small percentage of the overall market. Competing exchanges
Moreover, the Exchange believes the proposed amendment to Tape B Tier 1 is a reasonable means to encourage ETP Holders to increase their liquidity on the Exchange and their participation on NYSE Arca Options. Increased liquidity benefits all investors by deepening the Exchange's liquidity pool, offering additional flexibility for all investors to enjoy cost savings, supporting the quality of price discovery, promoting market transparency and improving investor protection.
The Exchange believes the proposed amendment to the routing fees is reasonable because it seeks to standardize the fee for routing PO Orders to away markets that conduct an opening and closing auction. The Exchange periodically reviews its fees and rebates and determined that it does not currently charge a fee for routing orders to Cboe BZX. The Exchange believes it is reasonable to adopt a fee when it routes orders to away markets. The Exchange also considered the fees charged by its affiliates, NYSE,
As noted above, the Exchange's proposal to charge a fee of $0.0030 per share for orders in securities priced at or above $1.00 that are routed to Nasdaq and Cboe BZX for execution in the opening auction or closing auction on those markets is consistent with fees charged by the Exchange's affiliates NYSE, NYSE Chicago, NYSE National and NYSE American.
The Exchange believes the proposed rule change to cap the credit applicable to the Step Up Tier 4 credit in Tape B securities is reasonable because the current credit is among the highest paid by the Exchange, and the Exchange believes the level of the current rebate would continue to encourage ETP Holders to submit additional liquidity to a national securities exchange. Submission of additional liquidity to the Exchange would promote price discovery and transparency and enhance order execution opportunities for ETP Holders from the substantial amounts of liquidity present on the Exchange. All ETP Holders would benefit from the greater amounts of liquidity that will be present on the Exchange, which would provide greater execution opportunities.
The Exchange believes the proposed rule change to amend the requirement to qualify for the incremental LMM credits is reasonable because it is intended to continue to encourage LMMs, and ETP Holders affiliated with such LMMs, to promote price discovery and market quality in Less Active ETP Securities for the benefit of all market participants. The Exchange believes that amending the benchmark from previous month to prior calendar quarter would serve to stabilize the number of Less Active ETP Securities and provide LMMs more consistency in the number of Less Active ETP Securities in which it is registered as the LMM, and should therefore provide LMMs increased opportunities to earn incremental credits. The Exchange believes the proposed amendment to qualify for the current incremental credit for adding liquidity is also reasonable because it would encourage liquidity and competition in all securities quoted and traded on the Exchange. Moreover, the Exchange believes that the proposed change could incentivize LMMs to register as an LMM in Less Active ETP Securities and thus, add more liquidity in all securities, and in particular Tape B securities, to the benefit of all market participants.
Submission of additional liquidity to the Exchange would promote price discovery and transparency and enhance order execution opportunities for LMMs from the substantial amounts of liquidity present on the Exchange. All participants, including LMMs, would benefit from the greater amounts of liquidity that will be present on the Exchange, which would provide greater execution opportunities.
On the backdrop of the competitive environment in which the Exchange currently operates, the proposed rule change is a reasonable attempt to increase liquidity on the Exchange and improve the Exchange's market share relative to its competitors.
The Exchange believes the proposed amendment to Tape B Tier 1 equitably allocates its fees and credits among market participants because it is reasonably related to the value of the Exchange's market quality associated with higher equities and options volume. Additionally, a number of ETP Holders have a reasonable opportunity to satisfy the pricing tier's criteria.
The Exchange does not know how much order flow ETP Holders choose to route to other exchanges or to off-exchange venues. The current pricing tier is available to all ETP Holders that are also OTP Holders or OTP Firms. There are currently 3 ETP Holders that qualify for the Tape B Tier 1 credit and would continue to receive the credit under the pricing tier if they maintain the same level of trading activity for the next three months. And as noted above, there are 54 firms that are both ETP Holders and OTP Holders and a number of such firms could qualify for Tape B Tier 1 credits. Without having a view of an ETP Holder's activity on other markets and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any ETP Holder to increase participation in the Exchange's equities and options markets to qualify for the existing credits. The Exchange cannot predict with certainty how many ETP Holders would avail themselves of this opportunity. The Exchange believes that maintaining the current
The Exchange believes that the proposed rule change constitutes an equitable allocation of reasonable fees because the proposed fee is designed to reflect the costs incurred by the Exchange for orders submitted by ETP Holders that remove liquidity from auctions conducted on away markets and would apply equally to all ETP Holders that choose to use the Exchange to route PO Orders to Nasdaq and Cboe BZX. Furthermore, the Exchange notes that routing through the Exchange is voluntary, and, because the Exchange operates in a highly competitive environment as discussed below, ETP Holders that do not favor the Exchange's pricing can readily direct order flow directly to Nasdaq or Cboe BZX or through competing venues or providers of routing services. The proposed change may impact the submission of orders to a national securities exchange, and to the extent that ETP Holders continue to submit PO Orders to the Exchange, the proposed rule change would not have a negative impact to ETP Holders trading on the Exchange because the proposed fee would be in line with the routing fee charged by the Exchange's affiliates. However, without having a view of ETP Holder's activity on other markets and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in a change in trading behavior by ETP Holders.
The Exchange believes the proposed amendment to Step Up Tier 4 equitably allocates its fees and credits among market participants because it is reasonably related to the value of the Exchange's market quality associated with higher equities volume. First, the Exchange is not proposing to adjust the amount of the Step Up Tier 4 credits, which will remain at the current level for all ETP Holders. Rather, the proposal caps an already high level of the credit paid for displayed liquidity in Tape B securities and is similar to the cap currently in place for Tape C securities that provide displayed liquidity. The Exchange believes the current level of credit would continue to encourage ETP Holders to send orders that add liquidity to the Exchange, thereby contributing to robust levels of liquidity, which benefit all market participants.
The Exchange believes the proposed rule change to amend the benchmark threshold to qualify for the incremental LMM credits is equitable because it provides discounts that are reasonably related to the value to the Exchange's market quality associated with higher volumes. The Exchange further believes that amending the benchmark from previous month to prior calendar quarter would serve to stabilize the number of Less Active ETP Securities and provide LMMs more consistency in the number of Less Active ETP Securities in which it is registered as the LMM, and should therefore provide LMMs increased opportunities to earn incremental credits.
The Exchange believes that the proposed rule change is not unfairly discriminatory. In the prevailing competitive environment, LMMs and ETP Holders are free to disfavor the Exchange's pricing if they believe that alternatives offer them better value.
The Exchange believes it is not unfairly discriminatory to extend the current CADV requirement for an additional three months for ETP Holders to qualify for per share credits, as the proposed change would be applied on an equal basis to all ETP Holders. Further, the Exchange believes that maintaining the current requirement for an additional period of time could provide an incentive for other ETP Holders to submit additional liquidity on the Exchange and on NYSE Arca Options to qualify for the rebate. The Exchange also believes that the proposed change is not unfairly discriminatory because it is reasonably related to the value to the Exchange's market quality associated with higher volume.
The proposal to maintain the CADV requirement at current levels to qualify for the Tape B Tier 1 credit neither targets nor will it have a disparate impact on any particular category of market participant. The proposal does not permit unfair discrimination because the amended threshold would be applied to all similarly situated ETP Holders, who would all be eligible for the same credit on an equal basis. Accordingly, no ETP Holder already operating on the Exchange would be disadvantaged by this allocation of fees.
The proposal to amend the routing fee for PO Orders routed to Nasdaq and adopting routing fees for PO Orders routed to Cboe BZX for execution in each market's opening or closing auction is not unfairly discriminatory because the fee would be applied on an equal basis to all ETP Holders that choose to send PO Orders to the Exchange. Additionally, the proposed rule change neither targets nor will it have a disparate impact on any particular category of market participant. The proposal does not permit unfair discrimination because the proposed fees would be applied to all ETP Holders, who would all be charged the same fee on an equal basis. Accordingly, no ETP Holder already operating on the Exchange would be disadvantaged by this allocation of fees.
The Exchange believes it is not unfairly discriminatory to cap the credit payable under Step Up Tier 4 for providing displayed liquidity in Tape B securities because the proposed cap would be applied on an equal basis to all ETP Holders, who would all be subject to the proposed cap on an equal basis. Additionally, the proposal neither targets nor will it have a disparate impact on any particular category of market participant. The proposal does not permit unfair discrimination because the proposed cap would be applied to all ETP Holders, who would all be subject to the proposed cap on an equal basis. Accordingly, no ETP Holder already operating on the Exchange would be disadvantaged by this allocation of fees.
The Exchange believes it is not unfairly discriminatory to amend the benchmark threshold to qualify for the incremental LMM credits, as the amended requirements would apply on an equal basis to all LMMs. Further, the Exchange believes that amending the benchmark from previous month to prior calendar quarter would serve to stabilize the number of Less Active ETP Securities and provide LMMs more
The proposal to amend the benchmark threshold to qualify for the incremental rebates neither targets nor will it have a disparate impact on any particular category of market participant. The proposal does not permit unfair discrimination because the proposed threshold would be applied to all similarly situated LMMs, who would all be eligible for the same credit on an equal basis. Accordingly, no LMM already operating on the Exchange would be disadvantaged by this allocation of fees.
Finally, the submission of orders to the Exchange is optional for LMMs and ETP Holders in that they could choose whether to submit orders to the Exchange and, if they do, the extent of its activity in this regard. The Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that the proposed change could promote competition between the Exchange and other execution venues, including those that currently offer similar order types and comparable transaction pricing, by encouraging additional orders to be sent to the Exchange for execution.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 3, Section 7, “Types of Orders,” and Options 3, Section 14, “Complex Orders” to permit the Exchange to determine the availability of order types and time-in-force provisions and to add other existing order types to the list of single-leg and Complex Order types.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 3, Section 7, “Types of Orders,” and Options 3, Section 14, “Complex Orders” to: (1) Provide that the Exchange may determine which order types and times-in-force provisions are available on a class or system basis; and (2) to add other existing order types to the list of single-leg and Complex Order types.
The Exchange proposes to add a sentence to Options 3, Section 14, Complex Orders, which states, “The Exchange may determine to make certain order types and/or times-in-force available on a class or System basis.” This sentence exists today within Nasdaq ISE, LLC (“ISE”) Options 3, Section 7, “Types of Orders.”
The purpose of this rule change is to provide the Exchange with appropriate flexibility to address different trading characteristics, market models, and the investor base of each class, as well as to handle any System issues that may arise and require the Exchange to temporarily not accept certain order types. This rule is consistent with BZX Options Rule 21.1(d) and (f), EDGX Options Rules 21.1(d) and (f), Cboe Rule 5.6(a) and C2 Rule 6.10(a), each of which provides these exchanges with substantially the
This rule change will not permit the Exchange to discriminate among market participants when determining which order types and times-in-force provisions are available on a class or system basis. The Exchange's proposal allows the Exchange to make certain order types and time-in-force, respectively, available on a class or System basis uniformly for all market participants. For example, if the Exchange determined to make a certain order type or time-in-force unavailable, that order type or time-in-force would not be available for any market participant.
The Exchange would issue an Options Trader Alert to provide notification to Participants that a change is being made to the availability or unavailability of a certain order type or time-in-force. The Exchange notes that in the event of System disruption, the Exchange would notify Participants of the unavailability of any order type and would also provide notification when that order type was available once the disruption was resolved.
The Exchange also proposes to add to Options 3, Section 7 at proposed (v)-(y) and Options 3, Section 14(b) at proposed (16), (17) and (18), references to various existing order types that may be entered into various auction mechanisms on ISE. Specifically, the Exchange proposes to add a reference to both single-leg and Complex Orders entered into the Price Improvement Mechanism, Facilitation Mechanism and Solicited Order Mechanism. These order types exist today within the ISE Rules, however, unlike other order types, they are not mentioned within Options 3, Sections 7 or 14, which list the single-leg and Complex Orders, respectively, available for trading on ISE. Further, the Exchange also proposes to add the Block Order type to Options 3, Section 7 to complete the list of available order types that may be entered into an auction mechanism. The Exchange proposes to add the following rule text into Options 3, Section 7:
(v) Block Order. A Block Order is an order entered into the Block Order Mechanism as described in Options 3, Section 11(a).
(w) Facilitation Order. A Facilitation Order is an order entered into the Facilitation Mechanism as described in Options 3, Section 11(b).
(x) SOM Order. A SOM Order is an order entered into the Solicited Order Mechanism as described in Options 3, Section 11(d).
(y) A PIM Order. A PIM Order is an order entered into the Price Improvement Mechanism as described in Options 3, Section 13(a).
The Exchange proposes to add the following rule text into Options 3, Section 14:
(16) Complex Facilitation Order. A Complex Facilitation Order is an order entered into the Complex Facilitation Mechanism as described in Options 3, Section 11(c).
(17) Complex SOM Order. A Complex SOM Order is an order entered into the Complex Solicited Order Mechanism as described in Options 3, Section 11(e).
(18) Complex PIM Order. A Complex PIM Order is an order entered into the Complex Price Improvement Mechanism as described in Options 3, Section 13(e).
The Exchange believes the addition of this rule text will make clear that these order types are available.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange would issue a notification to Participants to provide them notice that a change is being made to the availability or unavailability of a certain order type or time-in-force before implementing the change. In the event of a System issue, the Exchange believes that it is consistent with the Act to temporarily not offer a certain order type to ensure the proper executions of transactions within the System thereby protecting investors and the public interest. The Exchange anticipates that exercising its ability to temporarily not offer order types would be infrequent.
This provision was added to all 6 Nasdaq affiliated markets for the simple markets
The Exchange's proposal is not unfairly discriminatory because the Exchange will not discriminate among market participants when determining which order types and times-in-force provisions are available on a class or system basis. The Exchange's proposal allows the Exchange to make certain order types and time-in-force, respectively, available on a class or System basis uniformly for all market participants. For example, if the Exchange determined to make a certain order type or time-in-force unavailable, that order type or time-in-force would not be available for any market participant.
The proposal to add a references to all existing order types that may be entered into auctions into Options 3, Sections 7 and 14 is consistent with the Act. The Exchange believes the addition of the Block Order type, Facilitation Order type, SOM Order type and PIM Order types into Options 3, Section 7 and the addition of the Complex Facilitation Order type, Complex SOM Order type and Complex PIM Order type into Options 3, Section 14 will make clear to
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe the proposed rule change will impose any burden on intra-market competition, as the proposed rule change will apply in the same manner to all order types and/or times-in-force, as the Exchange determines, for all Participants. The Exchange does not believe the proposed rule change will impose any burden on inter-market competition because the proposed change provides the Exchange with substantially the same flexibility as the rules of other exchanges.
The Exchange's proposal does not impose an undue burden on competition because the Exchange's proposal will uniformly make certain order types and time-in-force, respectively, available on a class or System basis for market participants.
The proposal to add the Block Order type, Facilitation Order type, SOM Order type and PIM Order types into Options 3, Section 7 and the Complex Facilitation type, Complex SOM Order type and Complex PIM Order type into Options 3, Section 14b does not impose an undue burden on competition. The addition of these order types would complete the list of single-leg and Complex Order types, which are available to all market participants, and are merely being referenced within the order type rules for greater transparency.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or 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 Commission understands from transfer agents and their representatives, as well as other persons, that COVID-19 may present challenges in timely meeting certain of their obligations under the federal securities laws. In light of this, we are issuing this Order to address the currently anticipated needs of transfer agents (and of other persons with regard to Exchange Act section 17(f)(2) and Rule 17f-2), that have been directly or indirectly affected by COVID-19.
Section 36 of the Exchange Act authorizes the Commission, by rule, regulation or order, to exempt, either conditionally or unconditionally, any person, security or transaction, or any class or classes of persons, securities or transactions, from any provision or provisions of the Exchange Act or any rule or regulation thereunder, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.
Section 17A(c)(1) of the Exchange Act provides that the appropriate regulatory agency, by rule or by order, upon its own motion or upon application, may conditionally or unconditionally exempt any person or security or class of persons or securities from any provision of Section 17A or any rule or regulation prescribed under Section 17A, if the appropriate regulatory agency
Transfer agents and other persons who are unable to meet a deadline as extended by this relief, or in need of additional assistance, should contact the Division of Trading and Markets at (202) 551-5777 or
The time period for the relief specified in Section II of this Order is as follows:
• With respect to those transfer agents and other persons impacted by COVID-19, the period from and including March 16, 2020, to May 30, 2020.
• The Commission may extend the time period during which this relief applies, with any additional conditions the Commission deems appropriate.
Exchange Act Section 17A and Section 17(f), as well as the rules promulgated under Sections 17A and 17(f), contain requirements for registered transfer agents and other regulated persons relating to, among other things, processing securities transfers, safekeeping of investor and issuer funds and securities and maintaining records of investor ownership. As a result of issues related to COVID-19, registered transfer agents and other persons directly affected by COVID-19 may have difficulty complying with some or all of their regulatory obligations. In addition, registered transfer agents indirectly affected by COVID-19 may be unable to conduct business with entities or security holders who themselves have been directly or indirectly affected, thereby making it difficult to process securities transactions and corporate actions in conformance with Section 17A, Section 17(f) and the rules thereunder.
While the national clearance and settlement system continues to operate well in light of these challenges, the Commission recognizes that the need to comply with Section 17A and Section 17(f) of the Exchange Act, as well as the rules promulgated thereunder, may present compliance issues for those affected by COVID-19. Therefore, the Commission is using its authority under Section 17A and Section 36 of the Exchange Act to provide temporary relief from certain regulatory provisions. This Order temporarily exempts: (1) Transfer agents from the requirements of Sections 17A and 17(f)(1) of the Exchange Act, as well as Rules 17Ad-1 through 17Ad-11, 17Ad-13 through 17Ad-20, and 17f-1 thereunder (the “Transfer Agent Exempted Provisions”); and (2) transfer agents and other persons subject to such requirements, from the requirements of Section 17(f)(2) of the Exchange Act and Rule 17f-2 thereunder (the “Fingerprinting Exempted Provisions”) (collectively, the Transfer Agent Exempted Provisions and Fingerprinting Exempted Provisions are the “Exempted Provisions”). The Commission finds the following exemption to be in the public interest and consistent with the protection of investors and the purpose of Section 17A of the Exchange Act, including the prompt and accurate clearance and settlement of securities transactions and the safeguarding of securities and funds.
Accordingly,
(a) A registrant or other person relying on this Order must provide written notification to the Commission by May 30, 2020 of the following:
(1) The registrant or other person is relying on this Order;
(2) A description of the specific Exempted Provisions the registrant or other person is unable to comply with and a statement of the reasons why, in good faith, the registrant or other person
(3) If a transfer agent knows or believes that it has been unable to maintain the books and records it is required to maintain pursuant to Section 17A and the rules thereunder, a complete and accurate description of the type of books and records that were not maintained, the names of the issuers for whom such books and records were not maintained, the extent of the failure to maintain such books and records, and the steps taken to ameliorate any such failure to maintain such books and records.
(b) The Exempted Provisions do not include, and this order does not provide relief from, Rule 17Ad-12 under the Exchange Act. Transfer agents affected by COVID-19 that have custody or possession of any security holder or issuer funds or securities shall continue to comply with the requirements of Rule 17Ad-12 under the Exchange Act. If a transfer agent's operations, facilities, or systems are significantly affected as a result of COVID-19 such that the transfer agent believes its compliance with Rule 17Ad-12 could be negatively affected, to the extent possible, all security holder or issuer funds that remain in the custody of the transfer agent should be maintained in a separate bank account held for the exclusive benefit of security holders until such funds are properly processed, transferred, or remitted.
The notification required under (a) above shall be emailed to:
The Commission encourages registered transfer agents and the issuers for whom they act to inform affected security holders whom they should contact concerning their accounts, their access to funds or securities, and other shareholder concerns. If feasible, issuers and their transfer agents should place a notice on their websites or provide toll free numbers to respond to inquiries.
By the Commission.
On February 4, 2020, Cboe Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The proposed rule change was published for comment in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's Pricing Schedule at Options 7, Section 4, titled “Complex Order Fees and Rebates.”
The Exchange originally filed the proposed pricing changes on March 2, 2020 (SR-ISE-2020-09). On March 10, 2020, the Exchange withdrew that filing and submitted this filing.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Exchange's Pricing Schedule at Options 7, Section 4, titled “Complex Order Fees and Rebates” to decrease certain rebate tiers to attract Priority Customer Complex Order flow to ISE.
Today, ISE offers a nine tier Priority Customer Complex Order rebate structure as follows:
Specifically, with respect to the Tier 4 Priority Customer Complex Order rebate, a Member must execute a Complex Order volume percentage of above 0.600% to 0.750% to qualify for the $0.40 per contract rebate in Select Symbols and a $0.75 per contract rebate in Non-Select Symbols. Also, with respect to the Tier 3 Priority Customer Complex Order rebate, a Member must execute a Complex Order volume percentage
Specifically, with respect to the Tier 6 Priority Customer Complex Order rebate, a Member must execute a Complex Order volume percentage of above 1.000% to 1.500% to qualify for a $0.46 per contract rebate in Select Symbols and an $0.80 per contract rebate in Non-Select Symbols. Also, with respect to the Tier 7 Priority Customer Complex Order rebate, a Member must execute a Complex Order volume percentage of above 1.500% to 2.000% to qualify for the $0.48 per contract rebate in Select Symbols and an $0.80 per contract rebate in Non-Select Symbols. The Exchange proposes to amend the Tier 7 volume qualification from above 1.500% to 2.000% to above 1.350% to 2.000%. Further, the Exchange proposes to make a corresponding change to the qualifications for the Tier 6 rebate to amend it from above 1.000% to 1.500% to above 1.000% to 1.350% to align the qualifications for Tier 6 to the qualifications proposed for Tier 7.
Further, with respect to the Priority Customer Complex Tier 8 rebate, a Member must execute a Complex Order volume percentage of above 2.000% to 2.75% to qualify for the $0.50 per contract rebate in Select Symbols and an $0.85 per contract rebate in Non-Select Symbols. Also, with respect to the Priority Customer Complex Tier 9 rebate, a Member must execute a Complex Order volume percentage of above 2.75% to qualify for the $0.52 per contract rebate in Select Symbols and an $0.85 per contract rebate in Non-Select Symbols. The Exchange proposes to amend the Tier 9 volume qualification from above 2.75% to above 2.600%. Further, the Exchange proposes to make a corresponding change to the qualifications for the Tier 8 rebate to amend it from above 2.000% to 2.75% to above 2.000% to 2.600% to align the qualifications for Tier 8 to the qualifications proposed for Tier 9.
The Exchange notes that all Members may elect to qualify for the Priority Customer Complex Order rebates by submitting Complex Order flow to the Exchange and earning a rebate on their Priority Customer Complex Order volume. Accordingly, the proposed changes are designed to increase the amount of Complex Order flow that Members submit to ISE, particularly Priority Customer Complex Order volume, and further encourage Members to contribute to a deeper, more liquid market to the benefit of all market participants.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed changes to its Pricing Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for options transaction services that constrain its pricing determinations in that market. The fact that this market is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Numerous indicia demonstrate the competitive nature of this market. For
Within this environment, market participants can freely and often do shift their order flow among the Exchange and competing venues in response to changes in their respective pricing schedules. As such, the proposal represents a reasonable attempt by the Exchange to increase its liquidity and market share relative to its competitors.
The Exchange's proposal to decrease the volume requirements for Priority Customer Complex Order rebate Tiers 4, 7 and 9, and also make conforming changes to Priority Customer Complex Order rebate Tiers 3, 6 and 8 to align those tier qualifications with the proposed qualification amendments to Tiers 4, 7 and 9, is reasonable. The Exchange believes that the proposed amendments to Tiers 4, 7 and 9 of the Priority Customer Complex Order rebate program, which lower the volume qualifications for those tiers, represents a reasonable attempt by the Exchange to fortify participation in the Priority Customer Complex Order rebate program. In particular, the Exchange's proposal is intended to encourage Members to submit additional amounts of Priority Customer Complex Order volume to obtain a higher rebate. The Exchange notes that the proposed amendments should not result in lower rebates for any Member submitting the same volume as the Member submitted in the prior month. The Exchange is lowering the qualification criteria for various tiers within Options 7, Section 4 to provide a more deterministic outcome for an array of Members to qualify for the same Customer Complex Order rebates as in prior months. The Exchange believes that lowering the volume requirements for Tiers 4, 7 and 9 of the Priority Customer Complex Order rebate program will further incentivize Members to transact additional Complex Order flow, including Priority Customer Complex Order flow, to achieve higher rebates. Lowering the volume requirements for Tiers 4, 7, and 9 of the Priority Customer Complex Order rebate program makes these tiers more achievable and attractive to existing and potential program participants. As noted above, the Priority Customer Complex Order rebate program is optional and available to all Members that choose to transact Complex Order flow on ISE in order to earn a rebate on their Priority Customer Complex Order volume. To the extent the program, as modified, continues to attract Complex Order volume to the Exchange, the Exchange believes that the proposed changes would improve the Exchange's overall competitiveness and strengthen its market quality for all market participants.
The Exchange's proposal to decrease the volume requirements for Priority Customer Complex Order rebate Tiers 4, 7 and 9, and also make conforming changes to Priority Customer Complex Order rebate Tiers 3, 6 and 8 to align those tier qualifications with the proposed qualification amendments to Tiers 4, 7 and 9, is equitable and not unfairly discriminatory. Any Member may choose to qualify for the rebate program by transacting the requisite amount of Priority Customer Complex Order flow on ISE. By encouraging all Members to transact significant amounts of Priority Customer Complex Order flow (
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The proposal does not impose an undue burden on inter-market competition. The Exchange believes its proposal remains competitive with other options markets and will offer market participants with another choice of where to transact options. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The proposed pricing amendments do not impose an intra-market burden on competition. The Exchange's proposal to decrease the volume requirements for Priority Customer Complex Order rebate Tiers 4, 7 and 9 and also make conforming changes to the qualifications for Tiers 3, 6 and 8 to align those qualifications with the proposed qualifications to Tiers 4, 7 and 9, does
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its Rules at Options 2, Options Market Participants; Options 3, Section 2, Units of Trading and Meaning of Premium Quotes and Orders; Options 3, Section 3, Minimum Trading Increments; Options 4, Section 5, Series of Options Contracts Open for Trading; Options 4A, Section 2, Definitions; Options 4A, Section 6, Position Limits for Broad-Based Index Options; Options 4A, Section 8, Position Limits for Foreign Currency Index Options; Options 4A, Section 10, Exercise Limits; Options 4A, Section 11, Trading Sessions; Options 4A, Section 12, Terms of Index Options Contracts; Options 6, Options Trade Administration; Options 6C, Section 3, Margin Requirements; Options 6C, Section 4, Meeting Margin Calls by Liquidation Prohibited; Options 9, Section 4, Disruptive Quoting and Trading Activity Prohibited; Options 9, Section 13, Position Limits; Options 9, Section 14, Exemptions from Position Limits; and Options 9, Section 15,
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Rules at Options 2, Options Market Participants; Options 3, Section 2, Units of Trading and Meaning of Premium Quotes and Orders; Options 3, Section 3, Minimum Trading Increments; Options 4, Section 5, Series of Options Contracts Open for Trading; Options 4A, Section 2, Definitions; Options 4A, Section 6, Position Limits for Broad-Based Index Options; Options 4A, Section 8, Position Limits for Foreign Currency Index Options; Options 4A, Section 10, Exercise Limits; Options 4A, Section 11, Trading Sessions; Options 4A, Section 12, Terms of Index Options Contracts; Options 6, Options Trade Administration; Options 6C, Section 3, Margin Requirements; Options 6C, Section 4, Meeting Margin Calls by Liquidation Prohibited; Options 9, Section 4, Disruptive Quoting and Trading Activity Prohibited; Options 9, Section 13, Position Limits; Options 9, Section 14, Exemptions from Position Limits; and Options 9, Section 15, Exercise Limits. Additionally, the Exchange proposes to add new sections at General 9 and Options 4B and reserve those sections. The various proposed changes will be discussed below.
The Exchange has not listed Mini Options in several years and is proposing to delete Mini Options listing rules and other ancillary trading rules related to the listing of Mini Options. The Exchange notes that it has no open interest in Mini Options.
Specifically, the Exchange proposes to amend the following ISE Rules related to Mini Options by deleting references to Mini Options within these rules: Options 3, Section 2(d), Units of Trading and Meaning of Premium Quotes and Orders; Options 3, Section 3, Minimum Trading Increments, at Supplementary Material .03; Options 4, Section 5, Series of Options Contracts Open for Trading, at Supplementary Material .13; Options 9, Section 13, Position Limits. at Supplementary Material .03; and Options 9, Section 14, Exemptions From Position Limits.
The Exchange removed
The Exchange proposes to amend Options 4A, Section 2 at Supplementary Material .01; Options 4A, Section 6(a); Options 4A, Sections 12(a)(4),
The Exchange recently harmonized its Rulebook in connection with other Nasdaq affiliated markets. The Exchange proposes to reserve sections General 9 and Options 4B and certain other rules
The Exchange proposes to correct a typographical error within Options 6C, Section 4, Meeting Margin Calls by Liquidation Prohibited. The Exchange proposes to correct cross-references and numbering within Options 9, Section 4, Disruptive Quoting and Trading Activity Prohibited. Finally, the Exchange proposes to amend the names of certain securities which have been renamed within Options 9, Section 13 at Supplementary Material .01 and Options 9, Section 15 at Supplementary Material .01.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to removal references to the listing and handling of Mini Options is consistent with the Act because Mini Options have not been listed in several years and thereby removing the references to the rules would render the rules more accurate and reduce potential investor confusion. Also, the Exchange notes that it has no open interest in Mini Options. In the event that the Exchange desires to list Mini Options in the future, it would file a rule change with the Commission to adopt rules to list Mini Options.
The Exchange's proposal to remove rules and references to the listing and handling of Foreign Currency Indexes is consistent with the Act because the listing rules for these products have been removed. Also, the Exchange notes that it has no open interest in Foreign Currency Indexes. In the event that the Exchange desires to list Foreign Currency Indexes in the future, it would file a rule change with the Commission.
The Exchange's proposal to remove obsolete index options listings within Options 4A, Section 2 at Supplementary Material .01; Options 4A, Section 6(a); Options 4A, Sections 12(a)(4),
The Exchange's proposal to reserve new sections at General 9 and Options 4B within the Rulebook is a non-substantive amendment which aligns the numbering across Nasdaq affiliated Rulebooks to provide market participants with an ability to more readily locate rules.
The Exchange's proposal to correct typographical errors, correct cross-references and numbering and amend names of securities are non-substantive. These amendments are intended to reduce investor confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to removal references to the listing and handling of Mini Options does not impose an undue burden on competition. Mini Options have not been listed in several years. Also, the Exchange notes that it has no open interest in Mini Options.
The Exchange's proposal to removal references to the listing and handling of Foreign Currency Indexes does not impose an undue burden on competition. Foreign Currency Indexes have not been listed in several years. Also, the Exchange notes that it has no open interest in Foreign Currency Indexes.
The Exchange's proposal to remove obsolete index options listings within Options 4A, Section 2 at Supplementary Material .01; Options 4A, Section 6(a); Options 4A, Sections 12(a)(4),
The Exchange's proposal to add reserved sections General 9 and Options 4B to the Rulebook is a non-substantive amendment which aligns the numbering across Nasdaq affiliated Rulebooks to provide market participants with an ability to more readily locate rules.
The Exchange's proposal to correct typographical errors, correct cross-references and numbering and amend names of securities are non-substantive amendments.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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.
On January 17, 2020, Cboe Exchange, Inc. (“Cboe Options” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend Rule 5.24. The text of the proposed rule change is provided below.
(a)-(d) No change.
(e)
(1)
(A) No change.
(B) with respect to complex orders in any exclusively listed index option class:
(1) Notwithstanding Rule 5.4(b), the minimum increment for bids and offers on complex orders with any ratio equal to or greater than one-to-twenty-five (0.04) and equal to or less than twenty-
(2) notwithstanding the definition of “complex order” in Rule 1.1, for purposes of Rule 5.33, the term “complex order” means a complex order with any ratio equal to or greater than one-to-twenty-five (0.04) and equal to or less than twenty-five-to-one (25.00); [and]
([3]
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 5.24 regarding the Exchange's business continuity and disaster recovery plans. Rule 5.24 describes which Trading Permit Holders (“TPHs”) are required to connect to the Exchange's backup systems as well as certain actions the Exchange may take as part of its business continuity plans so that it may maintain fair and orderly markets if unusual circumstances occurred that could impact the Exchange's ability to conduct business. This includes what actions the Exchange would take if its trading floor became inoperable. Specifically, Rule 5.24(e) states if the Exchange trading floor becomes inoperable, the Exchange will continue to operate in a screen-based only environment using a floorless configuration of the System that is operational while the trading floor facility is inoperable. The Exchange would operate using that configuration only until the Exchange's trading floor facility became operational. Open outcry trading would not be available in the event the trading floor becomes inoperable.
As of March 16, 2020, the Exchange suspended open outcry trading to help prevent the spread of the novel coronavirus and is currently operating in an all-electronic configuration. While the trading floor was open, floor brokers executed crosses of option combos (
A key element to these exchanges is that both of the option and future transactions must occur between the same market participants. When a floor broker represented the cross of the option contracts on the trading floor in accordance with applicable rules,
In response to feedback the Exchange has received from floor brokers and their customers regarding the inability to complete these crosses in the current all-electronic environment and the potential detrimental impact on those market participants as well as the market as a whole, the Exchange proposes to provide functionality that would permit TPHs to execute these crosses electronically while the trading floor is inoperable. Specifically, the Exchange proposes to amend Rule 5.24(e)(1) to provide that in the event that the trading floor becomes inoperable, trading will be conducted pursuant to all applicable System Rules, except that open outcry Rules will not be in force, including but not limited to the Rules (or applicable portions of the Rules) in Chapter 5, Section G,
For purposes of RFC orders:
• In order to execute an RFC order:
(a) Until the time when System functionality described in paragraph (b) is available, a TPH may execute an RFC order without exposure on the Exchange by inputting the execution into the Exchange's Clearing Editor;
(b) at the time when System functionality is available, a TPH must submit the RFC order to the System, which may execute automatically on entry without exposure.
The Exchange believes the functionality described in paragraph (b) will provide a seamless mechanism to execute these crosses, as it will provide for orders to be systematized and price protections will be systematically enforced. The Exchange needs a small amount of time to implement this functionality, and the functionality in paragraph (a) will provide an intermediate method for TPHs to effect these crosses while the Exchange completes the necessary System work, which it expects to occur the week of March 23.
• A TPH may execute an RFC order pursuant to the preceding bulleted paragraph only if: (a) Each option leg executes at a price that complies with Rule 5.33(f)(2),
• An RFC order may only be entered in the standard increment applicable to the class under Rule 5.4(b). Therefore, RFC orders may only be submitted in the same increments as all other complex orders.
• For purposes of proposed subparagraph (D), an SPX or VIX options combo order is a two-legged order with one leg to purchase (sell) SPX or VIX calls and another leg to sell (purchase) the same number of SPX or
• For purposes of proposed subparagraph (D), an exchange of options contracts for related futures positions is a transaction entered into by market participants seeking to swap option positions with related futures positions with related exposures.
(a) A related futures position is a position in a futures contract with either the same underlying as or a high degree of price correlation to the underlying of the option combo in the RFC order so that execution of the option combos in the RFC order would serve as an appropriate hedge for the related future positions.
(b) In an exchange of contracts for related positions, one party(ies) must be the buyer(s) of (or the holder(s) of the long market exposure associated with) the options positions and the seller(s) of corresponding futures contracts and the other party(ies) must be the seller(s) of (or holder(s) of the short market exposure associated with) the options positions and the buyer(s) of the corresponding futures contracts.
• An RFC order may be executed only during Regular Trading Hours and contemporaneously with the execution of the related futures position portion of the exchange.
• The transaction involving the related futures position of the exchange must comply with all applicable rules of the designated contract market on which the futures are listed for trading.
The Exchange understands from customers that the need to reduce risk is prevalent in VIX and SPX based on current market conditions, and have corresponding futures that could make these exchanges possible. For example, Cboe Futures Exchange LLC (“CFE”) permit these types of exchanges with respect to VIX futures pursuant to CFE Rule 414.
Allowing TPHs, and particularly market-makers, to exchange synthetic futures (long (short) call, short (long) put—combos) for listed futures would replicate functionality that was previously available while Cboe was operating with an open outcry environment and would provide them with needed relief from the effect of the current exposure method (“CEM”) on the options market. The Exchange believes there are four reasons that make the proposed rule change for VIX and SPX products necessary and appropriate to maintain fair and orderly markets.
First, existing margin models do not fully recognize similar risks present in VIX and SPX derivatives positions held by the Exchange's liquidity providing community. This results in an overestimation of risk causing Clearing TPHs to require out-sized margin deposits from their market-maker clients, which restricts the liquidity market-makers can provide to the markets. Second, because the Clearing TPHs carrying these positions are bank-owned broker/dealers they are subject to further bank regulatory capital requirements pursuant to CEM, which result in these additional punitive capital requirements being passed on to their market-maker clients.
The Exchange believes the proposed rule change to make available functionality that will allow liquidity providers to execute trades tied to the underlying future (
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest. The proposed rule change will temporarily provide liquidity providers and other market participants with the ability to exchange SPX and VIX options positions with corresponding futures positions electronically in a substantially similar manner as they were able to do when the trading floor was open. These exchange allow market participants to reduce options positions in their hedged portfolios while maintain the same risk exposure, which would reduce the necessary capital associated with those positions and
The Exchange believes that its proposal is also consistent with the Act in that it seeks to mitigate the potentially negative effects of the bank capital requirements on liquidity in the VIX and SPX markets. As described above, current regulatory capital requirements could potentially impede efficient use of capital and undermine the critical liquidity role that Market-Makers and other liquidity providers play in the SPX and VIX options market by limiting the amount of capital Clearing TPHs (“CTPHs”) allocate to clearing member transactions. Specifically, the rules may cause CTPHs to impose stricter position limits on their clearing members. In turn, this could force Market-Makers to reduce the size of their quotes and result in reduced liquidity in the market. The Exchange believes that permitting TPHs to reduce options positions in SPX and VIX options that will permit them to maintain a hedged portfolio would likely contribute to the availability of liquidity in the SPX and VIX options market and help ensure that these markets retain their competitive balance. The Exchange believes that the proposed rule would serve to protect investors by helping to ensure consistent continued depth of liquidity, particularly given current market conditions when liquidity is needed the most by investors.
The Exchange also believes the proposed rule change is consistent with the Act, because the proposed procedure is consistent with transactions that were otherwise permitted on the trading floor. The proposed rule would provide an electronic mechanism to replicate a process that was used on the trading floor. The proposed rule change imposes similar priority requirements to those in open outcry, which will protect Priority Customer orders and orders on top of the book that comprise the BBO. Additionally, the proposed rule change requires RFCs to execute in the same increments as all other complex orders. While these orders were exposed on the trading floor, the Exchange observed that market participants generally deferred their allocations to permit a clean cross, as that is necessary for these transactions to achieve their intended effect. Because these orders were generally not broken up on the trading floor, and because the purpose of these trades is unrelated to profits and losses (making the price at which the transaction is executed relatively unimportant like competitive trades), the Exchange believes it is appropriate to not expose these orders in an electronic setting. The Exchange believes the proposed rule change, which is limited to two classes the Exchange believes are being significantly impacted by the inability to execute these crosses, and to option orders that qualify as combos tied to related futures positions, is narrowly tailored for the specific purpose of facilitating the ability of liquidity providers to reduce positions requiring significant capital as a result of current bank regulatory capital requirements and the current historic levels of market volatility. The Exchange believes the proposed rule change will protect investors by helping to ensure continued depth of liquidity in the SPX and VIX options market.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe the proposed rule change will impose any burden on intramarket competition, RFC orders will be available to all market participants. As discussed above, while the proposed rule change is directed at market-makers, all market participants may use these orders in the same manner as long as all criteria of the proposed rule are satisfied. The Exchange does not believe the proposed rule change will impose any burden on intermarket competition, as it will apply only to products currently listed on the Exchange. Additionally, the proposed order is intended to accommodate riskless transactions for which parties are not seeking price improvement, but rather looking to swap risk exposure to free up capital that will permit those parties to continue to provide liquidity to the market, and thus is not intended to have a competitive impact.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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.
85 FR 16177, March 20, 2020.
Tuesday, March 24, 2020 at 1:30 p.m.
The Closed Meeting scheduled for Tuesday, March 24, 2020 at 1:30 p.m., has been cancelled.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its Rules at Options 2, Options Market Participants; Options 3, Section 2, Units of Trading and Meaning of Premium Quotes and Orders; Options 3, Section 3, Minimum Trading Increments; and Options 3, Section 15, Simple Order Risk Protections. Additionally, the Exchange proposes to add new sections at General 9 and Options 4B and reserve those sections.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend GEMX Rules at Options 2, Options Market Participants; Options 3, Section 2, Units of Trading and Meaning of Premium Quotes and Orders; Options 3, Section 3, Minimum Trading Increments; and Options 3, Section 15, Simple Order Risk Protections. Additionally, the Exchange proposes to add new sections at General 9 and Options 4B and reserve those sections. The various proposed changes will be discussed below.
The Exchange has not listed Mini Options in several years and is proposing to delete Mini Options listing rules and other ancillary trading rules related to the listing of Mini Options. The Exchange notes that it has no open interest in Mini Options.
Specifically, the Exchange proposes to amend the following GEMX Rules related to Mini Options by deleting references to Mini Options within these rules: Options 3, Section 2(c), Units of Trading and Meaning of Premium Quotes and Orders; and Options 3, Section 3, Minimum Trading Increments, at Supplementary Material .03. The Exchange also proposes to re-letter (b) as (c).
The Exchange removed
The Exchange recently harmonized its Rulebook in connection with other Nasdaq affiliated markets. The Exchange proposes to reserve sections General 9 and Options 4B and certain other rules
The Exchange proposes to delete duplicative text within Options 3, Section 15, Simple Order Risk Protections. Current Options 3, Section 15(c) appears in Section 15(a) and current Options 3, Section 15(d) appears in Options 3, Section 15(a)(1)(C).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to removal references to the listing and handling of Mini Options is consistent with the Act because Mini Options have not been listed in several years and thereby removing the references to the rules would render the rules more accurate and reduce potential investor confusion. Also, the Exchange notes that it has no open interest in Mini Options. In the event that the Exchange desires to list Mini Options in the future, it would file a rule change with the Commission to adopt rules to list Mini Options.
The Exchange's proposal to remove rules and references to the listing and handling of Foreign Currency Indexes is consistent with the Act because the listing rules for these products have been removed. Also, the Exchange notes that it has no open interest in Foreign Currency Indexes. In the event that the Exchange desires to list Foreign Currency Indexes in the future, it would file a rule change with the Commission.
The Exchange's proposal to reserve new sections at General 9 and Options 4B within the Rulebook is a non-substantive amendment which aligns the numbering across Nasdaq affiliated Rulebooks to provide market participants with an ability to more readily locate rules.
The Exchange's proposal to remove duplicative text within Options 3, Section 15 is non-substantive and is intended to reduce investor confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to removal references to the listing and handling of Mini Options does not impose an undue burden on competition. Mini Options have not been listed in several years. Also, the Exchange notes that it has no open interest in Mini Options.
The Exchange's proposal to removal references to the listing and handling of Foreign Currency Indexes does not impose an undue burden on competition. Foreign Currency Indexes have not been listed in several years. Also, the Exchange notes that it has no open interest in Foreign Currency Indexes.
The Exchange's proposal to add reserved sections General 9 and Options 4B to the Rulebook is a non-substantive amendment which aligns the numbering across Nasdaq affiliated Rulebooks to provide market participants with an ability to more readily locate rules.
The Exchange's proposal to remove duplicative text within Options 3, Section 15 is a non-substantive amendment.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to suspend until June 30, 2020 the application of its continued listing requirement that companies must maintain an average global market capitalization over a consecutive 30 trading-day period of at least $15 million (the “Market Capitalization Standard”). The proposed rule 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 U.S. and global equities markets have experienced unprecedented market-wide declines as a result of the ongoing spread of COVID-19. As a consequence, since the commencement of the current market turbulence in the last week of February 2020, the Exchange has experienced an unusually high number (as compared to historical levels) of listed companies that are in imminent danger of immediate suspension and delisting under Section 802.01B of the Manual for failure to comply with the Market Capitalization Standard.
In response to the conditions described above, the Exchange proposes
Currently, when a company is identified as being noncompliant with the Market Capitalization Standard, trading in its securities is immediately suspended and the company is subject to delisting. Such a company that is noncompliant with the Market Capitalization Standard is not eligible to submit a plan to regain compliance pursuant to Sections 802.02 and 802.03 of the Manual. However, while its securities are suspended from trading, such company may appeal its delisting to a Committee of the Board of Directors of the Exchange. The proposed suspension of the Market Capitalization Standard will not affect the status of any company that has been formally notified for noncompliance with the Market Capitalization Standard and is currently in the Exchange's delisting appeal process prior to the date of this filing.
Instead, under the proposed suspension of the Exchange's Market Capitalization Standard, companies would not be notified of new events of noncompliance with the Market Capitalization Standard during the suspension period.
The Exchange would be able to implement the proposed rule change immediately upon effectiveness of this proposed rule change.
The proposed rule change is consistent with Section 6(b) of the Act,
As a result of uncertainty related to the ongoing spread of the COVID-19 virus, the prices of securities listed on U.S. exchanges are experiencing rapid and significant declines. The proposed rule change is designed to reduce uncertainty regarding the ability of certain companies to remain listed on the NYSE during the current highly unusual market conditions, thereby protecting investors, facilitating transactions in securities, and removing an impediment to a free and open market. All companies listed on the Exchange that fall below the Market Capitalization Standard as of the time of filing of this proposal would be eligible to take advantage of the proposed suspension of the Market Capitalization Standard.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather is designed to reduce uncertainty for certain companies and their shareholders regarding the ability of certain securities to remain listed on the NYSE during the current highly unusual market conditions.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Exchange stated that the proposed rule change is designed to respond to the unprecedented uncertainty and resulting market declines related to the global spread of the COVID-19 virus. In support of its request to waive the 30-day operative delay, the Exchange stated that the markets have already triggered four Level 1 Market Wide Circuit Breaker Halts in one week, which is unprecedented. According to the Exchange, given the ongoing uncertainty relating to the global spread of the COVID-19 virus, the Exchange has no way of knowing whether there will be additional market declines that would result in large numbers of companies unexpectedly falling below the Market Capitalization Standard in the immediate future. The Exchange stated that if that were to occur, such companies would be subject to immediate suspension and delisting. The proposal would suspend, until June 30, 2020, the application of the Market Capitalization Standard for all listed companies that fall below this standard on or after the effective date of this filing. The Exchange stated that waiver of the 30-day operative delay would avoid the immediate suspension and delisting of companies falling below the
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 22, 2020, Cboe BYX Exchange, Inc. (“BYX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
ICE Clear Europe Limited is proposing to amend the cash instruction deadline for USD set out in Section 6.1(e) of the Finance Procedures to be 11:45 Eastern time, rather than 16:45 London time, as set out in Exhibit 5.
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The purpose of the proposed amendment is to amend the cash instruction deadline for USD cash in Section 6.1(e) of the Finance Procedures to be 11:45 Eastern time instead of 16:45 London time. Under most circumstances, 11:45 Eastern time is the same as 16:45 London time. However, ICE Clear Europe is proposing the amendment to avoid an unintended change in the applicable deadline as a result of the different start dates for daylight savings time in the United States and the United Kingdom. In the absence of the amendment, the temporary change in time difference between the US and UK would cause the deadline to move to 12:45 Eastern time for the period until summer time commences in the UK.
The change would thus allow ICE Clear Europe to maintain its current (Eastern time) deadline for USD instructions regardless of any change in the time difference between local time in London and local time in New York in connection with differences in dates for daylight saving time in the US and UK. In ICE Clear Europe's view, the 11:45 a.m. deadline for USD cash instructions facilitates ICE Clear Europe's ongoing USD cash management and investment activities, particularly in circumstances where the market may be volatile.
ICE Clear Europe believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
ICE Clear Europe does not believe the proposed amendment would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purpose of the Act. The amendments are being proposed to maintain the usual USD cash instruction (Eastern time) deadline notwithstanding temporary changes in the time difference between the US and UK. As a result, ICE Clear Europe does not believe the amendments would adversely affect competition among Clearing Members, materially affect the cost of clearing, adversely affect access to clearing in Contracts for Clearing Members or their customers, or otherwise adversely affect competition in clearing services. Accordingly, ICE Clear Europe does not believe that the amendments would impose any impact or burden on competition that is not appropriate in furtherance of the purpose of the Act.
Written comments relating to the proposed amendments have not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any comments received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public
Because the Commission believes that the proposed rule change would merely maintain the usual USD cash instruction deadline notwithstanding temporary changes in the time difference between the US and UK, it would promote the prompt and accurate clearance and settlement of transactions by facilitating the ICEEU's investment and cash management activities and be consistent with the obligation to safeguard securities and funds in the custody or control of ICEEU or for which it is responsible, and would generally further the protection of investors and the public interest. Further, the Commission does not believe that the proposed rule change would impose any new requirements on clearing members it would not burden competition.
Additionally, because such a temporary change in time difference is currently in effect, and will last until March 27, 2020, the Commission believes that prompt implementation of the proposal change is necessary and appropriate and that a 30-day delay would serve no purpose. Further, the Commission believes that any delay in the operation of the proposed rule change would be inconsistent with the goal of maintaining the certainty of the current cash deadlines. Therefore, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest and designates the proposed rule change as operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICEEU-2020-004 and should be submitted on or before April 16, 2020.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 22, 2020, Cboe EDGX Exchange, Inc. (“EDGX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 22, 2020, Cboe BZX Exchange, Inc. (“BZX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rules 7.35A, 7.35B, and 7.35C for a temporary period that begins March 23, 2020, and ends on the earlier of the reopening of the Trading Floor facilities or after the Exchange closes on May 15, 2020. The proposed rule 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, for a temporary period that begins March 23, 2020, when the Trading Floor facilities will have been closed pursuant to Rule 7.1(c)(3), and ends on the earlier of the reopening of the Trading Floor facilities or after the Exchange closes on May 15, 2020, to:
• Suspend the current price and volume parameters set forth in Rules 7.35A and 7.35B restricting DMMs from effecting a Core Open, Trading Halt, or Closing Auction;
• widen the percentage price parameters for when a DMM may effect a Core Open, Trading Halt, or Closing Auction electronically to 10%;
• suspend the requirement to publish pre-opening indications; and
• establish the Auction Collars for an Exchange-facilitated Trading Halt Auction following a Level 1 or Level 2 market-wide circuit breaker halt
Current rules already provide for DMMs to effect Auctions electronically without any price or volume limitations, but only on a temporary basis for the trading day on which the suspension was declared. The Exchange is proposing these changes only for the period when the NYSE Trading Floor has temporarily closed as a precautionary measure to reduce the spread of COVID-19.
The Exchange also proposes a non-substantive amendment to correct rule cross references in Rule 7.35B(j)(1)(A) and (B).
Since March 9, 2020, markets worldwide are experiencing unprecedented market-wide declines and volatility because of the ongoing spread of COVID-19. In the U.S. equity markets, Level 1 MWCB Halts have been triggered under Rule 7.12 on March 9, 2020, March 12, 2020, March 16, 2020, and March 18, 2020.
Beginning on March 16, 2020, to slow the spread of COVID-19 through social-distancing measures, significant limitations were placed on large gatherings throughout the country. For example, in New York City, which is where the NYSE Trading Floor is located, public and private schools, universities, churches, restaurants, bars, movie theaters, and other commercial establishments where large crowds can gather have been closed.
On March 18, 2020, the CEO of the Exchange made a determination under Rule 7.1(c)(3) that beginning March 23, 2020, the Trading Floor facilities located at 11 Wall Street in New York City would close and the Exchange would move, on a temporary basis, to fully electronic trading.
Because the Trading Floor facilities will be closed, Floor brokers will not be able to enter orders on the Trading Floor.
Because DMMs would not be physically present on the Trading Floor, DMMs would facilitate Auctions electronically as provided for in Rules 7.35A and 7.35B. If a DMM does not facilitate an Auction electronically pursuant to the parameters specified in those rules, the Exchange would facilitate the Auction pursuant to Rule 7.35C.
Rule 7.35A(c)(1) sets forth the circumstances when a DMM may not effect a Core Open or Trading Halt Auction electronically. Relevant to this proposed rule change, a DMM cannot electronically effect a Core Open or Trading Halt Auction:
• If the Core Open or Trading Halt Auction Price would be more than 4% away from the Consolidated Last Sale Price (See Rule 7.35A(c)(1)(G)).
• If the paired volume for that Auction would be more than: (i) 1,500 round lots for securities with an average opening volume of 1,000 round lots or fewer in the previous calendar quarter; or (ii) 5,000 round lots for securities with an average opening volume of over 1,000 round lots in the previous calendar quarter (See Rule 7.35A(c)(1)(H)).
Under current rules, the DMM may effect a Core Open or Trading Halt Auction electronically if the Auction Price will be up to 8% away from the Consolidated Last Sale and without any volume limitations under the following circumstances:
• If as of 9:00 a.m., the E-mini S&P 500 Futures are +/−2% from the prior day's closing price of the E-mini S&P 500 Futures, or
• If the Exchange determines that it is necessary or appropriate for the maintenance of a fair and orderly market.
In addition, if the CEO of the Exchange or his or her designee determines that a Floor-wide event is likely to have an impact on the ability of DMMs to arrange for a fair and orderly Core Open or Trading Halt Auction and that, absent relief, the operation of the Exchange is likely to be impaired, the CEO or his or her designee can temporarily suspend the prohibition on a DMM opening a security electronically if the Core Open or Trading Halt Auction Price will be more than the price or volume parameters specified in Rule 7.35A(c)(1)(G) and (H).
Rule 7.35A(d) requires the DMM to publish a pre-opening indication before a security opens or reopens if the Core Open or Trading Halt Auction Price is anticipated to be a change of more than the “Applicable Price Range,” as specified in Rule 7.35A(d)(3) from the
Under current rules, the Applicable Price Range is 10% for securities with an Indication Reference Price over $3.00 and $0.30 for securities with an Indication Reference Price equal to or lower than $3.00 under the following circumstances:
• If, as of 9:00 a.m., the E-mini S&P 500 Futures are +/−2% from the prior day's closing price of the E-mini S&P 500 Futures,
• when reopening trading following a MWCB Halt, or
• if the Exchange determines that it is necessary or appropriate for the maintenance of a fair and orderly market.
In addition, the requirement to publish a pre-opening indication prior to opening or reopening a security following a MWCB Halt can be temporarily suspended if the CEO of the Exchange or his or designee determines that a Floor-wide event is likely to have an impact on the ability of DMMs to arrange for a fair and orderly Core Open or Trading Halt Auction and that, absent relief, the operation of the Exchange is likely to be impaired.
Rule 7.35B(c)(1) sets forth the circumstances when a DMM may not effect a Closing Auction electronically. Relevant to this proposed rule change, a DMM cannot electronically effect a Closing Auction:
• If the Closing Auction Price will be more than a designated percentage away from the Exchange Last Sale Price (See Rule 7.35B(c)(1)(G)), as follows:
• If the paired volume for that Auction would be more than 1,000 round lots for such security (See Rule 7.35B(c)(1)(H)).
Under current rules, if the CEO of the Exchange or his or her designee determines that a Floor-wide event is likely to have an impact on the ability of DMMs to arrange for a fair and orderly Closing Auction and that, absent relief, the operation of the Exchange is likely to be impaired, the CEO of the Exchange or his or her designee may temporarily suspend the prohibition on a DMM closing a security electronically if the Closing Auction Price would be more than the price or volume parameters specified in Rules 7.35B(c)(1)(G) and (H) of this Rule.
If a DMM cannot electronically facilitate an Auction for one or more securities in which the DMM is registered, the Exchange will conduct the Auction for such security or securities, as provided for in Rule 7.35C.
Unlike a DMM-facilitated Auction, an Exchange-facilitated Auction is subject to Auction Collars. The Auction Collar for the Core Open and the Closing Auction is based on a price that is greater than $0.15 or 10% away from the Auction Reference Price for the applicable Auction.
Before facilitating an Auction under Rule 7.35C, the Exchange will provide the DMM with the opportunity to electronically facilitate an Auction pursuant to Rules 7.35A or 7.35B.
The Exchange has tested the above-described functionality under Rule 7.35C, most recently in an industry-wide test on March 7, 2020. Specifically, the Exchange tested a scenario where the Trading Floor was unavailable and DMMs electronically facilitated Auctions in their assigned securities electronically, and for any Auctions not facilitated electronically by the DMM, the Exchange facilitated the balance of the Auctions pursuant to Rule 7.35C. In addition, on March 19, 2020, two DMM firms implemented their own business continuity plans and removed staff from the Trading Floor. For Auctions on March 19 and March 20, 2020 in the securities assigned to those DMMs, consistent with Rule 7.35C, the Exchange provided the DMMs with the opportunity to electronically facilitate both the Core Open and Closing Auctions before an Exchange-facilitated auction under Rule 7.35C Auctions. For the 16 Core Open Auctions and 19 Closing Auctions that the Exchange facilitated on March 19, 2020, all interest was able to participate within the Auction Collars and no orders were cancelled after the Auctions.
The Exchange proposes temporary changes to Rules 7.35A, 7.35B, and 7.35C related to DMM electronically- facilitated Auctions beginning March 23, 2020 and ending on the earlier of the reopening of the Trading Floor facilities or after the Exchange closes on May 15, 2020.
For the Core Open and Trading Halt Auction, the Exchange proposes to suspend:
• The percentage price parameters in Rule 7.35A(c)(1)(G) and (c)(2) and not allow a DMM to effect a Core Open or Trading Halt Auction electronically if the Core Open or Trading Halt Auction Price would be more than 10% away from the Consolidated Last Sale Price;
• The volume parameters in Rule 7.35A(c)(1)(H);
• The requirement to publish a pre-opening indication pursuant to Rule 7.35A(d) either before a Core Open or Trading Halt Auction.
For the Closing Auction, the Exchange proposes to suspend:
• The percentage price parameters in Rule 7.35B(c)(1)(G) and not allow a DMM to effect a Closing Auction electronically if the Closing Auction Price would be more than 10% away from the Exchange Last Sale Price.
• The volume requirements in Rule 7.35B(c)(1)(H).
The Exchange believes that these proposed measures are consistent with our current rules, as described above. Pursuant to either Rule 7.35A(j)(1) or 7.35B(j)(1), the CEO of the Exchange or his or her designee can determine to take one or more of the above actions for the trading day on which it is declared. The Exchange believes that closing the Trading Floor, combined with the current high volatility in the markets, would otherwise warrant invoking such temporary relief. Specifically, the Exchange believes that by eliminating volume restrictions and widening the percentage parameters for all Auctions to 10% during the this temporary period when the Trading Floor is closed, DMMs would be able to facilitate more Auctions electronically and enter their own interest to participate in such Auctions, reducing the need for the Exchange to facilitate Auctions, which would not include DMM interest. Similarly, because it will not be feasible for DMMs to publish pre-opening indications, which is a Floor-based manual action, during this temporary period when the Trading Floor is closed, the Exchange believes it would promote clarity and transparency in Exchange rules to specify that the requirement to publish such indications would be suspended.
The Exchange believes that it would promote clarity and transparency for DMMs, the Commission and the public to specify in Commentary to both Rule 7.35A and 7.35B the price and volume parameters that would be applicable to when a DMM could facilitate an Auction electronically during this temporary period of time.
In addition to amending Rules 7.35A and 7.35B, the Exchange proposes to amend Rule 7.35C to provide that, the Auction Collar for a Trading Halt Auction following either a Level 1 or Level 2 MWCB Halt would be the greater of $0.15 or 10% away from the Auction Reference Price.
The Exchange also proposes to amend current Commentary .01, which was added in the MWCB Reopen Filing, and renumber it Commentary .02. Because the relief described in the MWCB Reopen Filing is moot during the temporary period when the Trading Floor is closed, the Exchange proposes to amend when that Commentary would be applicable to provide that it would be in effect if the Trading Floor facilities reopen through trading on May 15, 2020. The Exchange also proposes non-substantive amendments to this Commentary to move a defined term to proposed Commentary .01(a) to Rule 7.35C.
Finally, the Exchange also proposes a non-substantive amendment to correct rule cross references in Rule 7.35B(j)(1)(A) and (B), which currently cross reference Rules 7.35B(c)(1)(F) and (G). As noted above, these rule cross references should be Rules 7.35B(c)(1)(G) and (H), which correspond to the price and volume parameters applicable to Closing Auctions.
As noted above, the Exchange has previously tested Exchange-facilitated Auctions when the Trading Floor is closed, and has implemented them in production beginning on March 19, 2020. The Exchange proposes to test the changes described above in an industry test scheduled for Saturday, March 21, 2020, before the Trading Floor closes on March 23, 2020.
The Exchange would be able to implement the proposed rule change immediately upon effectiveness of this proposed rule change.
The proposed rule change is consistent with Section 6(b) of the Act,
As a result of uncertainty related to the ongoing spread of COVID-19, the U.S. equities markets are experiencing unprecedented market volatility. In addition, social-distancing measures have been implemented throughout the country, including in New York City, to reduce the spread of COVID-19. Directly related to such social-distancing measures, the CEO of the Exchange made a determination under Rule 7.1(c)(3) that beginning March 23, 2020, the Trading Floor facilities located at 11 Wall Street in New York City would close and the Exchange would move, on a temporary basis, to fully electronic trading.
The Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market
The Exchange believes that by clearly stating that this relief will be in effect through the earlier of the reopening of the Trading Floor facilities or the close of the Exchange on May 15, 2020, DMMs will have more certainty regarding what limitations would be applicable during this period when they are unable to manually facilitate Auctions. Because they would no longer need to respond to relief that is invoked on a same-day basis, DMMs would be able to better manage their Auction processes, which the Exchange believes would remove impediments to and perfect the mechanism of a free and open market and a national market system.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather is designed to ensure fair and orderly Auctions on the Exchange by allowing DMMs to open, reopen, or close more securities electronically during a temporary period when the Exchange Trading Floor has been closed in response to social-distancing measures designed to reduce the spread of the COVID-19 virus.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 4A, Section 12, Terms of Option Contracts.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 4A, Section 12, Terms of Option Contracts. Specifically, the Exchange proposes to amend Options 4A, Section 12(b) and (b)(2) to change the number of expirations that the Exchange may open for trading in series of options related to Long-Term Options Series of index options. The Exchange also proposes to change the title of Options 4A, Section 12 from “Terms of Option Contracts” to “Terms of Index Options Contracts.”
The current rule text provides within Phlx Options 4A, Section 12(b):
After a particular class of stock index options has been approved for listing and trading on the Exchange, the Exchange shall from time to time open for trading series of options therein. Within each approved class of stock index options, the Exchange shall open for trading a minimum of one expiration month and series for each class of approved stock index options and may also open for trading series of options having not less than nine and up to 60 months to expiration (long-term options series) as provided in subparagraph (b)(2). Prior to the opening of trading in any series of stock index options, the Exchange shall fix the expiration month and exercise price of option contracts included in each such series.
The Exchange proposes to also amend the current text of Phlx Options 4A, Section 12(b)(2) which states the below with respect to Long-term
The Exchange may list, with respect to any class of stock index options, series of options having not less than nine and up to 60 months to expiration, adding up to ten expiration months. Such series of options may be opened for trading simultaneously with series of options trading pursuant to this rule. Strike price interval, bid/ask differential and continuity rules shall not apply to such options series until the time to expiration is less than nine months.
In addition, the Exchange proposes to internally harmonize its Rules with respect to Long-Term Options Series. In 2013, Phlx amended Rule 1101(A), currently Options 4A, Section 12, to make its rule consistent with Cboe's rule.
Subsequent to the 2013 Rule Change, Phlx amended then Rule 1012(a)(i)(D)
In addition, the Exchange proposes to correct rule text which was not correctly copied into the Phlx Rulebook from a prior rule change.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The remainder of the Rulebook changes are intended to restore the proper rule text from a prior rule change
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange does not believe the proposal will impose any burden on intra-market competition as all market participants will be treated in the same manner with respect to expirations of Long-Term Options Series in index options. Additionally, the Exchange does not believe the proposal will impose any burden on inter-market competition as market participants are welcome to become Phlx Members and trade at Phlx if they determine that this proposed rule change has made Phlx more attractive or favorable. Finally, all options exchanges are free to compete by listing and trading their own broad-
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or 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.
Pursuant to Section 19(b)(1)
LTSE proposes a rule change to adopt rules relating to the trading of Exchange Traded Products (“ETPs”) on an unlisted trading privileges (“UTP”) basis.
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 those 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 proposes to adopt rules to allow for trading securities on a UTP basis. The Exchange proposes to adopt LTSE Rule 14.350, which would address securities traded pursuant to UTP and would set standards for certain equity derivative securities that are identical to the rules of other equity exchanges,
Proposed Rule 14.350(a) would allow the Exchange to extend UTP to any security that is an NMS Stock (as defined in Rule 600 under Regulation NMS) that is listed on another national securities exchange or with respect to which UTP may otherwise be extended in accordance with Section 12(f) of the Exchange Act.
Proposed Rule 14.350(b) would adopt a definition of “Exchange Traded Product” to mean a security that meets the definition of “derivative securities product” in Rule 19b-4(e) under the Exchange Act. The proposed rule also would adopt a definition of “UTP Exchange Traded Product” to mean one of the following Exchange Traded Products that trades on the Exchange pursuant to unlisted trading privileges: Equity Linked Notes, Investment Company Units, Index-Linked Exchangeable Notes, Equity Gold Shares, Equity Index-Linked Securities, Commodity-Linked Securities, Currency-Linked Securities, Fixed-Income Index-Linked Securities, Futures-Linked Securities, Multifactor-Index-Linked Securities, Trust Certificates, Currency and Index Warrants, Portfolio Depository Receipts, Trust Issued Receipts, Commodity-Based Trust Shares, Currency Trust Shares, Commodity Index Trust Shares, Commodity Futures Trust Shares, Partnership Units, Paired Trust Shares, Trust Units, Managed Fund Shares, and Managed Trust Securities.
Any UTP Security
Specifically, proposed Rule 14.350(b)(1) would provide that the Exchange distribute an information circular prior to the commencement of trading in each UTP Exchange Traded Product that generally includes the same information as is contained in the information circular provided by the listing exchange, including (a) the special risks of trading the new Exchange Traded Product, (b) the Exchange's rules that apply to the new Exchange Traded Product, and (c) information about the dissemination of value of the underlying assets or indices.
Proposed Rule 14.350(b)(2)(A) would set forth requirements regarding prospectus delivery requirements. Members would be subject to the prospectus delivery requirements under the Securities Act of 1933, unless the UTP Exchange Traded Product is the subject of an order by the Securities and Exchange Commission exempting the product from certain prospectus delivery requirements under Section 24(d) of the Investment Company Act of 1940
Proposed Rule 14.350(b)(2)(B) would require the Exchange to inform Members of the application of the provisions of this subparagraph to UTP Exchange Traded Products by means of an information circular. It also would require the Exchange to require that a Member of the Exchange provide each purchaser of UTP Exchange Traded Products a written description of the terms and characteristics of those securities, in a form approved by the Exchange or prepared by the open-ended management company issuing such securities, not later than the time a confirmation of the first transaction in such securities is delivered to the purchaser. In addition, a Member would need to include a written description of the terms and characteristics of these securities with any sales material relating to UTP Exchange Traded Products that is provided to customers or the public. Any other written materials provided by a Member to customers or the public making specific reference to the UTP Exchange Traded Products as an investment vehicle would need to include a statement substantially in the following form: “A circular describing the terms and characteristics of [the UTP Exchange Traded Products] has been prepared by the [open-ended management investment company name] and is available from your broker. It is recommended that you obtain and review such circular before purchasing [the UTP Exchange Traded Products].” A Member carrying an omnibus account for a non-Member would be required to inform such non-Member that execution of an order to purchase UTP Exchange Traded Products for such omnibus account would be deemed to constitute an agreement by the non-Member to make such written description available to its customers on the same terms that are directly applicable to the Member under this proposed rule.
Proposed Rule 14.350(b)(2)(C) would provide that, upon request of a customer, a Member would need to provide to the customer a prospectus for the particular UTP Exchange Traded Product.
Proposed Rule 14.350(b)(3) would govern trading halts and would provide that the Exchange would halt trading in a UTP Exchange Traded Product as provided for in Exchange Rule 11.271. Nothing in proposed Rule 14.350(b)(3) would be intended to limit the power of the Exchange under its rules or procedures with respect to its ability to suspend trading in any securities if such suspension is necessary for the protection of investors or in the public interest.
Proposed Rule 14.350(b)(4) would set forth restrictions on Members acting as Market Makers on the Exchange in a UTP Exchange Traded Product that derives its value from one or more
First, under proposed Rule 14.350(b)(A), Market Makers would need to file with the Exchange, in a manner prescribed by the Exchange, and keep current a list identifying all accounts for trading the underlying physical asset or commodity, related futures or options on futures, or any other related derivatives (collectively with Reference Assets, “Related Instruments”), which the Member acting as a registered Market Maker on the Exchange may have or over which it may exercise investment discretion. No Market Maker would be permitted to trade in the underlying physical asset or commodity, related futures or options on futures, or any other related derivatives, in an account in which a Member acting as a registered Market Maker on the Exchange, directly or indirectly, controls trading activities, or has a direct interest in the profits or losses thereof, which has not been reported to the Exchange as required by proposed Rule 14.350.
Second, under proposed Rule 14.350(b)(B), a Market Maker on the Exchange would, in a manner prescribed by the Exchange, be required to file with the Exchange and keep current a list identifying any accounts (“Related Instrument Trading Accounts”) for which Related Instruments are traded: (i) In which the Market Maker holds an interest; (ii) over which it has investment discretion; or (iii) in which it shares in the profits and/or losses. A Market Maker on the Exchange would not be permitted to have an interest in, exercise investment discretion over, or share in the profits and/or losses of a Related Instrument Trading Account that has not been reported to the Exchange as required by proposed Rule 14.350.
Third, under proposed Rule 14.350(b)(C), in addition to the existing obligations under Exchange rules regarding the production of books and records, a Market Maker on the Exchange would be required to, upon request by the Exchange, make available to the Exchange any books, records, or other information pertaining to any Related Instrument Trading Account or to the account of any registered or non-registered employee affiliated with the Market Maker on the Exchange for which Related Instruments are traded.
Fourth, under proposed Rule 14.350(b)(D), a Market Maker on the Exchange would not be allowed to use any material nonpublic information in connection with trading a Related Instrument.
Finally, proposed Rule 14.350(b)(5) would provide that the Exchange will enter into comprehensive surveillance sharing agreements with markets that trade components of the index or portfolio on which the UTP Exchange Traded Product is based to the same extent as the listing exchange's rules require the listing exchange to enter into comprehensive surveillance sharing agreements with such markets.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Specifically, the Exchange believes that proposed Rule 14.350 would remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, would protect investors and the public interest by providing for the trading of securities, including UTP Exchange Traded Products, on the Exchange pursuant to UTP, subject to consistent and reasonable standards. Accordingly, the proposed rule change would contribute to the protection of investors and the public interest because it may provide a better trading environment for investors and, generally, encourage greater competition between markets.
The proposal is designed to remove impediments to and perfect the mechanism of a free and open market and a national market system by adopting rules that will ultimately lead to the trading pursuant to UTP of the proposed products on the Exchange, just as they are currently traded on other exchanges. The proposed changes do nothing more than match Exchange rules with what is currently available on other exchanges.
The Exchange believes that proposed Rule 14.350, which would enumerate the categories of UTP Exchange Traded Products that the Exchange proposes to trade and would specify additional requirements relating to UTP Exchange Traded Products, would ensure the maintenance of a fair and orderly market and provide for mechanisms for the regulatory oversight of securities trading on a UTP basis on the Exchange, in compliance with Rule 12f-5 under the Act.
The Exchange also believes that the proposed rule change supports the principles of Section 11A(a)(1) of the Act
By providing for the trading of securities on the Exchange on a UTP basis, the Exchange believes its proposal will lead to the addition of liquidity to the broader market for these securities and to increased competition among the existing group of liquidity providers. The Exchange also believes that, by so doing, the proposed rule change would encourage the additional utilization of, and interaction with, the exchange market, and provide market participants with improved price discovery, increased liquidity, more competitive quotes, and greater price improvement for securities traded pursuant to UTP.
The Exchange further believes that enhancing liquidity by trading securities
LTSE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 22, 2020, Cboe EDGA Exchange, Inc. (“EDGA” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 3, Section 7, “Types of Orders,” and Options 3, Section 14, “Complex Orders” to permit the Exchange to determine the availability of order types and time-in-force provisions and to add other existing order types to the list of single-leg and Complex Order types.
The Exchange requests that the Commission waive the 30-day operative delay period contained in Exchange Act Rule 19b-4(f)(6)(iii).
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 3, Section 7, “Types of Orders,” and Options 3, Section 14, “Complex Orders” to: (1) Provide that the Exchange may determine which order types and times-in-force provisions are available on a class or system basis; and (2) to add other existing order types to the list of single-leg and Complex Order types.
The Exchange proposes to add a sentence to Options 3, Section 14, Complex Orders, which states, “The Exchange may determine to make certain order types and/or times-in-force available on a class or System basis.” This sentence exists today within Nasdaq ISE, LLC (“ISE”) Options 3, Section 7, “Types of Orders.”
The purpose of this rule change is to provide the Exchange with appropriate flexibility to address different trading characteristics, market models, and the investor base of each class, as well as to handle any System issues that may arise and require the Exchange to temporarily not accept certain order types. This rule is consistent with BZX Options Rule 21.1(d) and (f), EDGX Options Rules 21.1(d) and (f), Cboe Rule 5.6(a) and C2 Rule 6.10(a), each of which provides these exchanges with substantially the same flexibility. This rule text is also consistent with ISE Rules at Options 3, Section 7.
This rule change will not permit the Exchange to discriminate among market
The Exchange would issue an Options Trader Alert to provide notification to Participants that a change is being made to the availability or unavailability of a certain order type or time-in-force. The Exchange notes that in the event of System disruption, the Exchange would notify Participants of the unavailability of any order type and would also provide notification when that order type was available once the disruption was resolved.
The Exchange also proposes to add to Options 3, Section 7 at proposed (v)-(y) and Options 3, Section 14(b) at proposed (16), (17) and (18), references to various existing order types that may be entered into various auction mechanisms on MRX. Specifically, the Exchange proposes to add a reference to both single-leg and Complex Orders entered into the Price Improvement Mechanism, Facilitation Mechanism and Solicited Order Mechanism. These order types exist today within the MRX Rules, however, unlike other order types, they are not mentioned within Options 3, Sections 7 or 14, which list the single-leg and Complex Orders, respectively, available for trading on MRX. Further, the Exchange also proposes to add the Block Order type to Options 3, Section 7 to complete the list of available order types that may be entered into an auction mechanism. The Exchange proposes to add the following rule text into Options 3, Section 7:
(v) Block Order. A Block Order is an order entered into the Block Order Mechanism as described in Options 3, Section 11(a).
(w) Facilitation Order. A Facilitation Order is an order entered into the Facilitation Mechanism as described in Options 3, Section 11(b).
(x) SOM Order. A SOM Order is an order entered into the Solicited Order Mechanism as described in Options 3, Section 11(d).
(y) A PIM Order. A PIM Order is an order entered into the Price Improvement Mechanism as described in Options 3, Section 13(a).
The Exchange proposes to add the following rule text into Options 3, Section 14:
(16) Complex Facilitation Order. A Complex Facilitation Order is an order entered into the Complex Facilitation Mechanism as described in Options 3, Section 11(c).
(17) Complex SOM Order. A Complex SOM Order is an order entered into the Complex Solicited Order Mechanism as described in Options 3, Section 11(e).
(18) Complex PIM Order. A Complex PIM Order is an order entered into the Complex Price Improvement Mechanism as described in Options 3, Section 13(e).
The Exchange believes the addition of this rule text will make clear that these order types are available.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange would issue a notification to Participants to provide them notice that a change is being made to the availability or unavailability of a certain order type or time-in-force before implementing the change. In the event of a System issue, the Exchange believes that it is consistent with the Act to temporarily not offer a certain order type to ensure the proper executions of transactions within the System thereby protecting investors and the public interest. The Exchange anticipates that exercising its ability to temporarily not offer order types would be infrequent.
This provision was added to all 6 Nasdaq affiliated markets for the simple markets
The Exchange's proposal is not unfairly discriminatory because the Exchange will not discriminate among market participants when determining which order types and times-in-force provisions are available on a class or system basis. The Exchange's proposal allows the Exchange to make certain order types and time-in-force, respectively, available on a class or System basis uniformly for all market participants. For example, if the Exchange determined to make a certain order type or time-in-force unavailable, that order type or time-in-force would not be available for any market participant.
The proposal to add a reference to all existing order types that may be entered into auctions into Options 3, Sections 7 and 14 is consistent with the Act. The Exchange believes the addition of the Block Order type, Facilitation Order type, SOM Order type and PIM Order types into Options 3, Section 7 and the addition of the Complex Facilitation Order type, Complex SOM Order type and Complex PIM Order type into Options 3, Section 14 will make clear to market participants the various types of single-leg order and Complex Orders that may be transacted on MRX. The descriptions of these order types merely point at the existing mechanisms.
The Exchange does not believe that the proposed rule change will impose
The Exchange's proposal does not impose an undue burden on competition because the Exchange's proposal will uniformly make certain order types and time-in-force, respectively, available on a class or System basis for market participants.
The proposal to add the Block Order type, Facilitation Order type, SOM Order type and PIM Order types into Options 3, Section 7 and the Complex Facilitation type, Complex SOM Order type and Complex PIM Order type into Options 3, Section 14b does not impose an undue burden on competition. The addition of these order types would complete the list of single-leg and Complex Order types, which are available to all market participants, and are merely being referenced within the order type rules for greater transparency.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or 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, and one new collection.
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 May 26, 2020. Individuals can obtain copies of the collection instrument by writing to the above email address.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding these information collections 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 April 27, 2020. Individuals can obtain copies of the OMB clearance packages by writing to
Due to concerns surrounding the spread of COVID-19, the Department of State is cancelling its meeting in preparation for the International Maritime Organization's (IMO) Facilitation Committee previously scheduled on April 6, 2019. The IMO has indefinitely postponed the subject meeting. If another meeting is scheduled, the Department of State will issue a
Due to concerns surrounding the spread of COVID-19, the Department of State's Advisory Committee on Private International Law (ACPIL) is cancelling its meeting previously scheduled meeting on Friday, April 17, 2020 in Washington, DC. This meeting will be re-scheduled at a later date. The Department of State will issue a
For additional information, contact Sharla Draemel (
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection
Submit comments up to April 27, 2020.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
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 Irum Zaidi, 1800 G St. NW, Suite 10300, SA-22, Washington, DC 20006, who may be reached on 202-663-2588 or at
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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.
The U.S. President's Emergency Plan for AIDS Relief (PEPFAR) was established through enactment of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Pub. L. 108-25), as amended by the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (Pub. L. 110-293) (HIV/AIDS Leadership Act), as amended and reauthorized for a third time by the PEPFAR Extension Act of 2018 (Pub. L. 115-305) to support the global response to HIV/AIDS. In order to improve program monitoring, PEPFAR added reporting of expenditures by program area to the current routine reporting of program results for the annual report. Data are collected from implementing partners in countries with PEPFAR programs using a standard tool (DS-4213) via an electronic web-based interface into which users upload data. This expenditures data is analyzed by partner for all PEPFAR program areas. These analyses then feed into partner and program reviews at the country level for monitoring and evaluation on an ongoing basis. Summaries of these data provide key information about program costs under PEPFAR on a global level. Applying expenditure results will improve strategic budgeting, identification of efficient means of delivering services, accuracy in defining program targets, and will inform allocation of resources to ensure the program is accountable and using public funds for maximum impact.
Data will continue to be collected in a web-based interface available to all partners receiving funds under PEPFAR. After implementing Expenditure Reporting since 2012, we learned that implementing partners (IPs) prefer the Microsoft Excel template (DS-4213) data collection process. The requirements in the Excel template have been reduced with IP input to only request critical information. By being able to download a template, prime IPs responsible to complete the submission are more effectively able to collaborate quickly with other key personnel and coordinate with their subrecipients to enter the data for the full amount of PEPFAR funding expended during the prior fiscal year. This approach also proves helpful where internet connectivity is not strong. After completing the Excel template, IPs upload the data to an automated system that further checks the data entered for quality and completeness. Automated checks reduce the time needed by IPs to complete the data cleaning process. Aggregate data is available in a central system for analysis.
Canadian National Railway Company (CNR), a Class I rail carrier, has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA)
If the verified notice contains false or misleading information, the exemption is void ab initio.
Board decisions and notices are available at
By the Board, Allison C. Davis, Director, Office of Proceedings.
Office of the United States Trade Representative.
Notice.
The Office of the United States Trade Representative (USTR) is providing notice of a change in the quantity, and opening dates, for the fourth and fifth tranches of the specialty sugar tariff-rate quota (TRQ).
This notice is applicable on March 30, 2020.
Dylan Daniels, Office of Agricultural Affairs, at (202) 395-9583 or
Pursuant to Additional U.S. Note 5 to Chapter 17 of the Harmonized Tariff Schedule of the United States (HTSUS), the United States maintains TRQs for imports of raw cane and refined sugar.
Section 404(d)(3) of the Uruguay Round Agreements Act (19 U.S.C. 3601(d)(3)) authorizes the President to allocate the in-quota quantity of a TRQ for any agricultural product among supplying countries or customs areas. The President delegated this authority to the U.S. Trade Representative under Presidential Proclamations 6763 and 7235 (60 FR 1007 and 64 FR 197).
On July 15, 2019, USTR announced that the FY2020 specialty sugar TRQ of 171,656 MTRV would be administered in the following way.
When the third tranche opened on January 22, 2020, U.S. Customs and Border Protection allowed the tranche to be filled in the quantity of 55,000 MTRV, rather than the 50,000 MTRV intended, based on a typo in the U.S. Department of Agriculture's announcement of June 27, 2019.
Office of the United States Trade Representative.
Notice of product exclusions.
In September of 2018, the U.S. Trade Representative imposed additional duties on goods of China with an annual trade value of approximately $200 billion as part of the action in the Section 301 investigation of China's acts, policies, and practices related to technology transfer, intellectual property, and innovation. The U.S. Trade Representative initiated a product exclusion process in June 2019, and interested persons have submitted requests for the exclusion of specific products. This notice announces the U.S. Trade Representative's determination to grant certain exclusion requests, as specified in the Annex to this notice, and corrects technical errors in previously announced exclusions.
The product exclusions announced in this notice will apply as of September 24, 2018, the effective date of the $200 billion action, to August 7, 2020. The amendments announced in this notice are retroactive to the date the original exclusions were published.
For general questions about this notice, contact Assistant General Counsels Philip Butler or Megan Grimball, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For specific questions on customs classification or implementation of the product exclusions identified in the Annex to this notice, contact
For background on the proceedings in this investigation, please see the prior notices including 82 FR 40213 (August 24, 2017), 83 FR 14906 (April 6, 2018),
Effective September 24, 2018, the U.S. Trade Representative imposed additional 10 percent duties on goods of China classified in 5,757 full and partial subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), with an approximate annual trade value of $200 billion.
Under the June 24 notice, requests for exclusion had to identify the product subject to the request in terms of the physical characteristics that distinguish the product from other products within the relevant 8-digit subheading covered by the $200 billion action. Requestors also had to provide the 10-digit subheading of the HTSUS most applicable to the particular product requested for exclusion, and could submit information on the ability of U.S. Customs and Border Protection to administer the requested exclusion. Requestors were asked to provide the quantity and value of the Chinese-origin product that the requestor purchased in the last three years. With regard to the rationale for the requested exclusion, requests had to address the following factors:
• Whether the particular product is available only from China and specifically whether the particular product and/or a comparable product is available from sources in the United States and/or third countries.
• Whether the imposition of additional duties on the particular product would cause severe economic harm to the requestor or other U.S. interests.
• Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.
The June 24 notice stated that the U.S. Trade Representative would take into account whether an exclusion would undermine the objective of the Section 301 investigation.
The June 24 notice required submission of requests for exclusion from the $200 billion action no later than September 30, 2019, and noted that the U.S. Trade Representative periodically would announce decisions. In August 2019, the U.S. Trade Representative granted an initial set of exclusion requests.
Based on the evaluation of the factors set forth in the June 24 notice, which are summarized above, pursuant to sections 301(b), 301(c), and 307(a) of the Trade Act of 1974, as amended, and in accordance with the advice of the interagency Section 301 Committee, the U.S. Trade Representative has determined to grant the product exclusions set forth in the Annex to this notice. The U.S. Trade Representative's determination also takes into account advice from advisory committees and any public comments on the pertinent exclusion requests.
As set forth in the Annex, the exclusions are reflected in one 10-digit HTSUS subheading, which covers one exclusion request, and 176 specially prepared product descriptions, which cover 202 separate exclusion requests.
In accordance with the June 24 notice, the exclusions are available for any product that meets the description in the Annex, regardless of whether the importer benefitting from the product exclusion filed an exclusion request. Further, the scope of each exclusion is governed by the scope of the product descriptions in the Annex, and not by the product descriptions found in any particular request for exclusion.
Paragraph A, subparagraphs 3 through 5 of the Annex contain conforming amendments to the HTSUS reflecting the modifications made by the Annex. Paragraph B of the Annex contains amendments reflecting technical corrections to certain notes to the HTSUS, specifically U.S. note 20(pp), published at 85 FR 549 (January 6, 2020). Paragraph C of the Annex contains amendments reflecting technical corrections to certain notes to the HTSUS, specifically U.S. note 20(qq)(4) and U.S. note 20(qq)(6), published at 85 FR 6674 (February 5, 2020).
As stated in the September 20, 2019 notice, the exclusions will apply from September 24, 2018, to August 7, 2020. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
The U.S. Trade Representative will continue to issue determinations on pending requests on a periodic basis.
Federal Aviation Administration (FAA), DOT.
Request for public comment.
The Federal Aviation Administration is requesting public comment on a request by the Taylor County, Florida to release federally obligated land from conditions of the Surplus Property Quitclaim Deed dated April 11, 1947 at the Perry Foley Airport, Perry, Florida. This property was transferred to Taylor County under the authority of the April 11th, 1947, the United States, War Assets Administration and Section 13 of the Surplus Property Act of 1944 (58 Stat. 765). The request includes five (5) parcels adjacent to the airport totaling approximately 17.28 acres. Fair market value of the commercial properties at time of sale was $94,470.
Documents reflecting the Sponsor's request are available, by appointment only, for inspection at the Perry Foley Airport and the FAA Airports District Office.
Section 125 of The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) requires the FAA to provide an opportunity for public notice and comment prior to the “waiver” or “modification” of a sponsor's Federal obligation to use certain airport land for non-aeronautical purposes.
Comments are due on or before April 27, 2020.
Documents are available for review at Perry Foley Airport, and the FAA Orlando Airports District Office, 8724 SouthPark Circle, Suite 524, Orlando, FL 32819. Written comments on the Sponsor's request must be delivered or mailed to: Pedro Blanco, Community Planner, FAA Orlando Airports District Office, 8724 SouthPark Circle, Suite 524, Orlando, FL 32819.
Pedro Blanco, Community Planner, FAA Orlando Airports District Office, 8724 SouthPark Circle, Suite 524, Orlando, FL 32819.
Revision Date 11/22/00.
Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT.
Notice.
PHMSA is publishing this notice to solicit public comment on a request for special permit received from the Florida Gas Transmission Company (FGT). The special permit request is seeking relief from compliance with certain requirements in the Federal pipeline safety regulations. At the conclusion of the 30-day comment period, PHMSA will review the comments received from this notice as part of its evaluation to grant or deny the special permit request.
Submit any comments regarding this special permit request by April 27, 2020.
Comments should reference the docket number for this specific special permit request and may be submitted in the following ways:
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PHMSA received a special permit request from FGT seeking a waiver from the requirements of 49 CFR 192.611(a) and (d), “Change in class location: Confirmation or revision of maximum allowable operating pressure”, and § 192.619(a), “Maximum allowable operating pressure: Steel or plastic pipelines”. This special permit is being requested in lieu of pipe replacement or pressure reduction for thirteen special permit segments in the FGT pipeline system. The FGT system totals 1.92 miles of pipeline located in four (4) counties (Brevard, Lake, Orange, and Osceola) in the State of Florida, where the class locations have changed from Class 1 to Class 3, or Class 2 to Class 3. The pipeline special permit segments are short in length, not contiguous, and comprise of 26-inch and 30-inch diameter pipelines with existing maximum allowable operating pressures of 974 to 977 pounds per square inch gauge (psig). The installation dates of the pipeline segments range from 1968 to 1995.
The request, proposed special permit with conditions, and Draft Environmental Assessment (DEA) for the FGT pipeline are available for review and public comment in Docket No. PHMSA-2020-0001. We invite interested persons to review and submit comments on the special permit request and DEA in the docket. Please include any comments on potential safety and environmental impacts that may result if the special permit is granted. Comments may include relevant data.
Before issuing a decision on the special permit request, PHMSA will evaluate all comments received on or before the comment closing date. Comments received after the closing date will be evaluated, if it is possible to do so without incurring additional expense or delay. PHMSA will consider each relevant comment it receives in making its decision to grant or deny this special permit request.
Issued in Washington, DC, under authority delegated in 49 CFR 1.97.
(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 Defense is authorized and directed to publish this memorandum in the
(a) The Secretary is delegated the following:
(b) In exercising the authority delegated under this section, the Secretary shall consult the Administrator of the Federal Emergency Management Agency.
(c) The Secretary shall adopt and revise appropriate rules and regulations as may be necessary to implement this order.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission”) is adopting amendments to the accelerated filer and large accelerated filer definitions to more appropriately tailor the types of issuers that are included in the categories of accelerated and large accelerated filers and promote capital formation, preserve capital, and reduce unnecessary burdens for certain smaller issuers while maintaining investor protections. The amendments exclude from the accelerated and large accelerated filer definitions an issuer that is eligible to be a smaller reporting company and that had annual revenues of less than $100 million in the most recent fiscal year for which audited financial statements are available. The amendments also include a specific provision excluding business development companies from the accelerated and large accelerated filer definitions in analogous circumstances. In addition, the amendments increase the transition thresholds for accelerated and large accelerated filers becoming non-accelerated filers from $50 million to $60 million, and for exiting large accelerated filer status from $500 million to $560 million. Further, the amendments add a revenue test to the transition thresholds for exiting from both accelerated and large accelerated filer status. Finally, the amendments add a check box to the cover pages of Forms 10-K, 20-F, and 40-F to indicate whether an internal control over financial reporting (“ICFR”) auditor attestation is included in the filing. As a result of the amendments, certain low-revenue issuers will remain obligated, among other things, to establish and maintain ICFR and have management assess the effectiveness of ICFR, but they will not be required to have their management's assessment of the effectiveness of ICFR attested to, and reported on, by an independent auditor.
This final rule is effective April 27, 2020.
John Fieldsend, Special Counsel, in the Division of Corporation Finance, at (202) 551-3430, and Brian Johnson, Assistant Director, in the Division of Investment Management, at (202) 551-6792, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-3628.
We are amending 17 CFR 229.10(f) (“Item 10(f)”) under Regulation S-K;
On May 9, 2019, we proposed amendments
We received over 60 comment letters on the proposal, including over 40 unique letters and approximately 20 letters that were substantially similar. Many of the commenters generally supported the proposed amendments
In June 2018, the Commission adopted amendments
In conjunction with these amendments, the Commission also revised the accelerated filer and large accelerated filer definitions in Rule 12b-2 to remove the condition that, for an issuer to be an accelerated filer or a large accelerated filer, it must not be eligible to use the SRC accommodations.
Prior to the SRC amendments, the SRC category of filers generally did not overlap with either the accelerated or large accelerated filer categories.
• A public float of $75 million or more, but less than $250 million, regardless of annual revenues; or
• Less than $100 million in annual revenues, and a public float of $250 million or more, but less than $700 million.
Under the existing accelerated filer and large accelerated filer definitions in Rule 12b-2, an issuer must satisfy three conditions to be an accelerated filer or large accelerated filer.
SOX Section 404(a)
Many commenters supported the portion of the proposed amendments that would exclude an issuer that is eligible to be an SRC and that meets the SRC revenue test from the accelerated and large accelerated filer definitions.
A number of commenters stated explicitly that they supported using revenue as a measure to determine whether an issuer should be subject to the ICFR auditor attestation requirement.
Commenters expressed mixed views on the effect that the proposed amendments would have on capital formation, the cost of capital, and the decisions of companies as to whether to enter the public capital markets. Some commenters agreed with the view expressed in the Proposing Release that, by expanding the JOBS Act Exemption, the proposed amendments would enhance capital formation or allow affected issuers to preserve capital
Conversely, other commenters asserted that the proposed amendments would not enhance capital formation, and some indicated they could even reduce capital formation.
Several commenters indicated that the ICFR auditor attestation requirement is not necessary because issuers are permitted to voluntarily obtain an ICFR auditor attestation if they believe it is in their interest to do so.
Commenters' views as to the effect of the proposed amendments on investor protection were also mixed. Many commenters asserted that, even if the ICFR auditor attestation requirement did not apply, other existing requirements would provide investors in these issuers with sufficient protection.
For example, several commenters noted that, when conducting a financial statement audit, the auditor is required to obtain an understanding of each component of ICFR,
In addition to these broader points, several commenters in the banking sector pointed out that community banks and bank holding companies are subject to extensive supervision and regulation by federal and state banking regulators, which they stated would protect investors in this industry even if the affected issuers were not subject to the ICFR auditor attestation requirement.
Conversely, other commenters asserted that the ICFR auditor attestation requirement is an important investor protection and that eliminating it would undermine such protection.
Some commenters asserted that the SOX Section 404(a) requirement would not provide investors in low-revenue SRCs with sufficient protection if they were not also subject to the ICFR auditor attestation requirement
A few commenters noted that a financial statement audit does not provide the same level of assurance as an integrated audit
Some commenters indicated that the ICFR auditor attestation requirement promotes effective ICFR and more accurate disclosures related to ICFR,
A few commenters expressed concern about the effect that the amendments could have on the reliability of key performance indicators and other measures. One commenter indicated that investors in certain issuers that would become non-accelerated filers under the amendments rely on key performance indicators that are derived from their financial statements, such as backlog, sales orders, and number of customers, and asserted that eliminating the ICFR auditor attestation requirement could reduce the reliability of those indicators.
A number of commenters stated that the ICFR auditor attestation requirement is quite costly.
Some commenters asserted that eliminating the ICFR auditor attestation requirement would not substantially reduce costs to issuers.
Other commenters asserted that the benefits of the ICFR auditor attestation requirement are not as great for low-revenue and smaller issuers as they are for other issuers.
Conversely, a number of other commenters contended that the benefits of the ICFR auditor attestation requirement are greater for low-revenue and smaller issuers than for other issuers.
Finally, some commenters maintained that the risks of fraud
A number of commenters discussed the relationship between the non-accelerated filer and SRC definitions.
While supporting the proposed amendments, some commenters recommended that the final amendments completely align the SRC and non-accelerated filer definitions.
We received a variety of other comments on the Proposing Release. Some commenters noted that it is difficult for investors to easily determine whether an issuer's filing includes an ICFR auditor attestation.
Additionally, although we did not propose amendments to the accelerated and large accelerated filer definitions that would specifically address foreign private issuers (“FPI”) or business development companies (“BDC”), we solicited comment on these points and a few commenters requested we do so.
After considering the comments, we are adopting the final amendments substantially as proposed. The final amendments add a new condition to the accelerated and large accelerated filer definitions in Rule 12b-2 that excludes an issuer that is eligible to be an SRC and that had annual revenues of less than $100 million in the most recent fiscal year for which audited financial statements are available. The amendments also allow BDCs to qualify for this exclusion if they meet the requirements of the SRC revenue test using their annual investment income as the measure of annual revenue, although BDCs would continue to be ineligible to be SRCs.
Below we discuss specific aspects of the final amendments about which we received significant public comment and our response to those comments. In many cases, our responses reflect analysis and data that is more comprehensively presented in the Economic Analysis.
As discussed above,
As we discuss in more detail below,
Under the final amendments, an issuer that is eligible to be an SRC and that meets the SRC revenue test will not be required to comply with accelerated or large accelerated filer requirements and, thereby, will not be subject to the ICFR auditor attestation requirement. Not subjecting these affected issuers to the ICFR auditor attestation requirement should reduce their compliance costs. As discussed in the Economic Analysis,
Some commenters stated that eliminating the ICFR auditor attestation requirement would enhance capital formation or allow those issuers to preserve capital.
As we noted in the Proposing Release,
We continue to believe that the amendments are not likely to have a significant effect on the overall ability of investors in the affected issuers to make informed investment decisions and note that many commenters agreed with this assessment.
For example, although a non-accelerated filer that is eligible to be an SRC and that meets the SRC revenue test will not be subject to the ICFR auditor attestation requirement, it will remain subject to the SOX Section 404(a) requirement to state in its annual report the responsibility of management for establishing and maintaining an adequate control structure and procedures for financial reporting, and for that report to contain an assessment of the effectiveness of that structure and its procedures. In addition, affected issuers are required to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP.
Furthermore, the issuers that are subject to the final amendments will remain subject to a financial statement audit by an independent auditor, which will help maintain appropriate investor protections. Even without an ICFR auditor attestation requirement, an independent auditor is required to consider ICFR in the performance of a financial statement audit.
For example, the auditor in a financial statement audit is required to identify and assess the risks of material misstatements, which is similar to the risk assessment evaluation required in an ICFR auditor attestation. Additionally, the auditor engaged in a financial statement audit often may test the operating effectiveness of certain internal controls even if not performing an integrated audit to reduce the extent of substantive testing required to issue an opinion on the financial statements. Moreover, even if an auditor decides not to rely on internal controls to reduce the extent of substantive testing, the auditor may still identify internal control deficiencies during such substantive testing in a financial statement audit.
Under PCAOB standards, the evaluation and communication of significant deficiencies and material weaknesses in ICFR to management and the issuer's audit committee is required in both a financial statement audit and an ICFR auditor attestation.
Other developments may serve to reinforce these existing investor protections. In 2010, the PCAOB adopted enhanced auditing standards related to the auditor's assessment of, and response to, risk that, in part, clarify and augment the extent to which internal controls are to be considered in a financial statement audit.
Additionally, recent settled charges against four public companies for failing to maintain effective ICFR for seven to 10 consecutive annual reporting periods
We recognize that some commenters disagreed with this assessment and asserted that investor protections other than the ICFR auditor attestation requirement would not be sufficient because, among other reasons, a financial statement audit has a different objective than an integrated audit,
One commenter indicated that a low-revenue issuer could have a large market capitalization and thus “greater investor exposure.”
One commenter noted its concern that certain issuers that would no longer be subject to the ICFR auditor attestation requirement are conducting large initial public offerings (“IPOs”) based on key performance indicators that are derived from financial systems, and that eliminating the ICFR auditor attestation requirement could result in potentially less robust internal controls and unreliable data.
Also, we believe the risk for those low-revenue issuers for which key performance indicators are material to investors and that are derived from financial systems is mitigated by the requirement to maintain, evaluate, and disclose effectiveness of disclosure controls and procedures
Not only is the ICFR auditor attestation requirement costly in general, as discussed above, a number of commenters asserted that the ICFR auditor attestation requirement is disproportionally costly to small and low-revenue issuers.
As discussed above, other commenters claimed that eliminating the ICFR auditor attestation requirement would not substantially reduce costs to issuers
We believe the benefits of the ICFR auditor attestation requirement likely are fewer for low-revenue SRCs than for other issuers, an assessment supported by some commenters.
Second, as we noted in Table 14 of the Proposing Release,
Third, we believe that those issuers' financial statements may be less critical to assessing their valuation given, for example, the relative importance of their future prospects. We recognize that other commenters disagreed and asserted that benefits of the ICFR auditor attestation requirement are greater for lower-revenue and smaller issuers than for other issuers.
Under the final amendments, some, but not all, SRCs would become non-accelerated filers. We are not adopting an alternative suggested by some commenters of fully aligning the SRC and non-accelerated filer definitions. As we note in the Economic Analysis,
As a result, fully aligning the SRC and non-accelerated filer thresholds could have adverse effects on the reliability of the financial statements of the issuers with higher revenues and the ability of investors to make informed investment decisions about those issuers.
In a change from the proposal, the final amendments also exclude BDCs from the accelerated and large accelerated filer definitions under circumstances that are analogous to the exclusions for other issuers under the amendments. The amendments include a specific provision applicable to BDCs, because BDCs are not eligible to be SRCs and to provide a definition of “revenue” for BDCs to use for this purpose.
Although the Commission did not propose to exclude BDCs from the accelerated and large accelerated filer definitions using the SRC revenue test, the Commission did solicit comment on such an approach and discussed the relative costs and benefits of this alternative in the Proposing Release.
Although we observed in the Proposing Release that the SRC revenue test would not be meaningful for BDCs because BDCs prepare financial statements under Article 6 of Regulation S-X and generally do not report revenue, the final amendments' definition of “revenue” for purposes of the BDC-specific provisions incorporate information that BDCs report in their financial statements. A BDC's investment income includes income from dividends, interest on securities, and other income.
Under the proposed amendments, an FPI would be excluded from the accelerated and large accelerated filer definitions if it qualifies as an SRC
The final amendments do not revise our rules to require an ICFR auditor attestation requirement less frequently than annually. Issuers that are accelerated or large accelerated filers will be required to obtain an ICFR auditor attestation every year, unless they qualify as EGCs, as under our current rules. We did not propose to revise this requirement, but requested comment on this matter, and every commenter that discussed the subject
Although we did not propose a requirement that issuers report whether they have obtained an ICFR auditor attestation, we requested comment on whether we should do so. As discussed above,
Under the new rule, issuers will be required to include the check box on their cover pages in any annual report filed on or after the final amendments' effective date. Once issuers are required to tag the cover page disclosure data using Inline eXtensible Business Reporting Language (“Inline XBRL”), they will also be required to tag this cover page check box disclosure in Inline XBRL because Item 406 of Regulation S-T (“Item 406”),
An issuer initially becomes an accelerated filer after it first meets certain conditions as of the end of its fiscal year, including that it had a public float of $75 million or more but less than $700 million as of the last business day of its most recently completed second fiscal quarter. An issuer initially becomes a large accelerated filer in a similar manner, including that it had a public float of $700 million or more as of the last business day of its most recently completed second fiscal quarter. Once the issuer becomes an accelerated filer, it will not become a non-accelerated filer unless it determines at the end of a fiscal year that its public float had fallen below $50 million on the last business day of its most recently completed second fiscal quarter. Similarly, a large accelerated filer will remain one unless its public float had fallen below $500 million on the last business day of its most recently completed second fiscal quarter. If the large accelerated filer's public float falls below $500 million but is $50 million or more, it becomes an accelerated filer. Alternatively, if the issuer's public float falls below $50 million, it becomes a non-accelerated filer.
In the SRC Adopting Release,
We proposed to revise the transition threshold for becoming a non-accelerated filer from $50 million to $60 million and the transition threshold for leaving the large accelerated filer status from $500 million to $560 million. We also proposed to add the SRC revenue test to the public float transition thresholds for accelerated and large accelerated filers. If the SRC revenue test were not added to the accelerated filer and large accelerated filer transition provisions, an issuer's annual revenues would never factor into determining whether an accelerated filer could become a non-accelerated filer, or whether a large accelerated filer could become an accelerated or non-accelerated filer. We proposed that an issuer that is already an accelerated filer would remain one unless either its public float falls below $60 million or it becomes eligible to use the SRC accommodations under the revenue test in paragraph (2) or (3)(iii)(B) of the SRC definition,
Similarly, we proposed conforming amendments to the large accelerated filer transition provisions for when an issuer that is already a large accelerated filer transitions to either accelerated or non-accelerated filer status. To transition out of large accelerated filer status at the end of the issuer's fiscal year, an issuer would need to have a public float below $560 million as of the last business day of its most recently completed second fiscal quarter or meet the revenue test in paragraph (2) or (3)(iii)(B), as applicable, of the SRC definition. A large accelerated filer would become an accelerated filer at the end of its fiscal year if its public float fell to $60 million or more but less than $560 million as of the last business day of its most recently completed second fiscal quarter and its annual revenues are not below the applicable revenue threshold ($80 million or $100 million). The large accelerated filer would become a non-accelerated filer if its public float fell below $60 million as of the last business day of its most recently completed second fiscal quarter or its annual revenues fell below the applicable revenue threshold ($80 million or $100 million).
We received very few comments regarding the proposed changes to the transition thresholds. The commenters who discussed the proposed amendments to increase the public float transition thresholds supported them.
After considering the comments, we are adopting the final amendments as proposed. As discussed in greater detail in the Economic Analysis,
The final amendments revise the public float transition threshold for accelerated and large accelerated filers to become a non-accelerated filer from $50 million to $60 million and revise the public float transition threshold for a large accelerated filer to lose its large accelerated filer status from $500 million to $560 million. Prior to the final amendments, the public float threshold for an accelerated and large accelerated filer to become a non-accelerated filer was $50 million and the public float transition threshold for a large accelerated filer to lose its large accelerated filer status was $500 million. We believe these threshold amounts are too low and result in more issuers than intended being classified as an accelerated or large accelerated filer. However, we believe there should be some transition threshold so as to avoid some volatility. The amendments would make the public float transition thresholds 80 percent of the initial thresholds, which is consistent with the percentage used in the transition thresholds for SRC eligibility. We believe this approach appropriately balances the risk of frequent reclassifications resulting from a higher percentage threshold against the risk of delaying appropriate transitions due to a lower threshold. The table below summarizes how an issuer's filer status will change based on its subsequent public float determination.
The final amendments also add the SRC revenue test to the transition threshold for accelerated and large accelerated filers. As we noted in the Proposing Release, if we do not add the SRC revenue test to the accelerated filer and large accelerated filer transition provisions, an issuer's annual revenues would never factor into determining whether an accelerated filer could become a non-accelerated filer, or whether a large accelerated filer could become an accelerated or non-accelerated filer. We note that one commenter stated that the manner in which issuers may recognize revenue could cause them to frequently lose and gain non-accelerated filer status.
Under the final amendments, an accelerated filer with revenues of $100 million or more that is eligible to be an SRC based on the public float test contained in paragraphs (1) and (3)(iii)(A) of the SRC definition can transition to non-accelerated filer status in a subsequent year if it has revenues of less than $100 million. For example, an issuer with a December 31 fiscal year end that did not exceed the public float threshold in the prior year and that has a public float, as of June 30, 2020, of $230 million and annual revenues for the fiscal year ended December 31, 2019 of $101 million will be eligible to be an SRC under the public float test; however, because the issuer would not be eligible to be an SRC under the SRC revenue test, it will be an accelerated filer (assuming the other conditions described in Table 1 are also met). At the next determination date (June 30, 2021), if its public float, as of June 30, 2020, remains at $230 million and its annual revenues for the fiscal year ended December 31, 2019 are less than $100 million, the issuer will be eligible to be an SRC under the SRC revenue test (in addition to the public float test) and thus it will become a non-accelerated filer.
On the other hand, an issuer with a December 31 fiscal year end that has a public float, as of June 30, 2020, of $400 million and annual revenues for the fiscal year ended December 31, 2019 of $101 million will not be eligible to be an SRC under either the public float test or the SRC revenue test and will be an accelerated filer (assuming the other conditions described in Table 1 also are met). At the next determination date (June 30, 2021), if its public float, as of June 30, 2021, remains at $400 million, that issuer will not be eligible to be an SRC under the SRC revenue test unless its annual revenues for the fiscal year ended December 31, 2020 are less than $80 million, at which point it will be eligible to be an SRC under the SRC revenue test and to become a non-accelerated filer.
The final amendments will become effective 30 days after they are published in the
If any of the provisions of these amendments, or the application of these provisions to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application. Pursuant to the Congressional Review Act,
We are mindful of the costs and benefits of the amendments. The discussion below addresses the economic effects of the amendments, including their anticipated costs and benefits, as well as the likely effects of the amendments on efficiency, competition, and capital formation.
As discussed above, we are adopting amendments to the definitions of “accelerated filer” and “large accelerated filer” that will generally extend non-accelerated filer status to issuers with up to $700 million in public float if they are eligible to be SRCs and their revenues are less than $100 million. As non-accelerated filers, among other things, these issuers will not be required to obtain an ICFR auditor attestation pursuant to SOX Section 404(b). The amendments are intended to reduce compliance costs for these issuers while maintaining investor protections by more appropriately tailoring the types of issuers that are included in the categories of accelerated and large accelerated filers.
In the Proposing Release, we presented evidence that the imposition of the ICFR auditor attestation requirement has been associated with benefits to issuers and investors, such as reduced rates of ineffective ICFR and more reliable financial statements.
We acknowledged, in the Proposing Release, that exempting these low-revenue issuers from the ICFR auditor attestation requirement may result in adverse effects such as an increased prevalence of ineffective ICFR and
Commenters raised a number of concerns with our analysis and conclusions in the Proposing Release. We carefully reviewed all of the comments received and in a few instances, conducted supplemental analysis in response to the issues and questions raised by those comments. Overall, based on our analysis of the available evidence and data, our primary conclusions have not substantively changed. While we address the comments in detail in the body of the Economic Analysis below, we highlight certain of our findings in relation to some commenter concerns here.
One concern raised by commenters is that rather than targeting issuers where there may be relatively fewer benefits of the ICFR auditor attestation requirement, the amendments will remove this requirement for exactly those issuers where the benefits may be greatest.
A few commenters asserted that the costs of the amendments will significantly outweigh any benefits.
Some commenters stated that the Proposing Release did not provide sufficient quantification of the costs of the amendments.
Several commenters argued that the expected cost savings are too small to be economically meaningful,
Some commenters indicated that the Proposing Release did not adequately consider the risk of fraud,
The economic analysis also considers other changes associated with the amendments. For example, the affected issuers will be permitted an additional 15 days and five days, respectively, after the end of each period to file their annual and quarterly reports, relative to the deadlines that apply to accelerated filers.
The discussion that follows examines the potential benefits and costs of the amendments in detail. As part of our analysis, we consider both the comments received on the Proposing Release and the likelihood that the effects of the ICFR auditor attestation have changed over time with changes in auditing standards and other market conditions.
To assess the economic impact of the amendments, we are using as our baseline the current state of the market under the existing definition of “accelerated filer.” This section discusses the current regulatory requirements and market practices. It also provides statistics characterizing accelerated filers, the timing of filings, disclosures about ineffective ICFR, and restatement rates under the baseline.
Our baseline includes existing statutes and Commission rules that govern the responsibilities of issuers with respect to financial reporting, as well as PCAOB auditing standards and market standards related to the implementation of these responsibilities.
In particular, accelerated and large accelerated filers are subject to accelerated filing deadlines for their periodic reports relative to non-accelerated filers. These deadlines are summarized in Table 4 below. All registrants can file Form 12b-25 (“Form NT”) to avail themselves of an additional 15 calendar days to file an annual report, or an additional five calendar days to file a quarterly report, and still have their report deemed to have been timely filed.
The Proposing Release discusses in detail the issuer and auditor responsibilities with respect to disclosure controls and procedures and ICFR for issuers of different filer types.
In particular, all issuers
Beyond these requirements, accelerated filers and large accelerated filers other than EGCs, RICs, and ABS issuers are required under SOX Section 404(b) and related rules to include an ICFR auditor attestation in their annual reports. In addition, certain banks, even if they are non-accelerated filers, are required under Federal Deposit Insurance Corporation (“FDIC”) rules to have their auditor attest to, and report on, management's assessment of the effectiveness of the bank's ICFR (the “FDIC auditor attestation requirement”).
One commenter raised questions about the nature of the FDIC auditor attestation requirement and how it compares to the ICFR auditor attestation requirement.
Some issuers that are not required to comply with SOX Section 404(b) voluntarily obtain an ICFR auditor attestation.
Audits of ICFR and the associated ICFR auditor attestation reports are made in accordance with AS 2201,
The adoption of AS 2201 in 2007 has been found to have lowered audit fees.
In 2010, the PCAOB adopted enhanced auditing standards related to the auditor's assessment of and response to risk.
Based on the results of inspections in the several years after the adoption of the new risk assessment auditing standards, the PCAOB expressed concern about the number and significance of deficiencies in auditing firm compliance with these standards, but also noted promising improvements in the application of these standards.
The Commission recently settled charges against four public companies for failing to maintain effective ICFR for seven to 10 consecutive annual reporting periods.
We also note that there have been some recent changes in accounting and auditing that are part of our baseline and could increase the uncertainty of our analysis due to their effects on factors such as audit fees, restatements, and ICFR. For example, three new reporting standards have been issued recently by FASB, on the topics of revenue recognition, leases, and credit losses, which could temporarily increase audit fees as issuers and auditors adjust to the new standards.
Per Table 5, there were approximately 1,400 accelerated filers in total in 2018. Figure 2
The distribution of public float among accelerated filers is skewed towards lower levels of float, but higher levels of float are also significantly represented.
Figure 3
The distribution of revenues for accelerated filers is heavily skewed towards lower levels of revenue, with roughly three-quarters of accelerated filers having revenues of less than $500 million and more than a third having revenues of less than $100 million. Other than a clustering of issuers with zero or near zero revenues, there are no obvious breaks in the distribution.
While a large range of industries are represented among accelerated filers, a small number of industries account for the majority of these issuers. The “Banking” industry accounts for about 14.1 percent of accelerated filers, followed by “Pharmaceutical Products” (13.9 percent) “Financial Trading” (8.0 percent), “Business Services” (5.7 percent), “Petroleum and Natural Gas” (4.8 percent), “Computer Software” (4.4 percent), “Retail” (4.4 percent), “Transportation” (4.2 percent), and “Electronic Equipment” (4.1 percent).
As discussed above, non-accelerated, accelerated, and large accelerated filers face different filing deadlines for their periodic reports. In Table 6, we present the timing in recent years of annual report filings by these different groups of issuers relative to their corresponding deadlines.
Table 6 documents that accelerated and large accelerated filers file their annual reports, on average, four or five days before the applicable deadline. Nine percent and six percent, respectively, of accelerated and large accelerated filers submit their annual reports after the initial deadline, with roughly half of these filers surpassing the 15-day grace period that is obtained by filing Form NT. Non-accelerated filers are less likely to meet their initial deadline or extended deadline, with the average non-accelerated filer submitting its annual report 11 days after the initial deadline and 13 percent of non-accelerated filers filing after the 15-day grace period obtained by filing Form NT.
We next consider the current rates of ineffective ICFR and restatements
Based on management's SOX Section 404(a) reports on ICFR from recent years, on average, about nine percent of accelerated filers reported at least one material weakness in ICFR in a given year.
We next consider the persistence of material weaknesses across these issuer categories. Table 8
The first panel of Table 8 is intended to demonstrate the overall rate of persistently ineffective ICFR among issuers of different types, while the second panel is intended to demonstrate the degree of persistence of ineffective ICFR among the subset of issuers of each type that report ineffective ICFR in 2018. Compared to non-accelerated filers, we find that a smaller percentage of accelerated and large accelerated filers report material weaknesses that persist for multiple years, with about one percent of accelerated filers and about 0.3 percent of large accelerated filers reporting ineffective ICFR for four consecutive years (per the third row of the table), representing about 11 percent of the accelerated filers and about seven percent of the large accelerated filers that reported ineffective ICFR in 2018 (per the last row of the table). A larger percentage of non-accelerated filers persistently report material weaknesses, with about 16 percent of these issuers (per the third row of the table), or about 40 percent of those reporting ineffective ICFR in 2018 (per the last row of the table), having reported material weaknesses for four consecutive years. As discussed above, it is possible that recent Commission enforcement actions might lead to a reduction in the persistence of material weaknesses in ICFR to the extent that they change issuers' awareness of the risks of longstanding ICFR failures.
Table 9 presents the rate of restatements among each of these filer types, excluding EGCs, and for EGCs separately. For each year, we consider the percentage of issuers that eventually restated the financial statements for that year. The reporting lag before restatements are filed results in a lower observed rate in the later years of our sample, particularly for 2017 (and even more so for 2018, which we do not report for this reason), as issuers may yet restate their results from recent years.
The first panel of Table 9
The costs and benefits of the amendments, including impacts on efficiency, competition, and capital formation, are discussed below. We first address the population and characteristics of issuers that will newly qualify as non-accelerated filers under the amendments, and then introduce certain categories of issuers that are used for comparison purposes. We next discuss the anticipated costs and benefits associated with the proposed change in applicability of the ICFR auditor attestation requirement. Following this discussion, we consider the costs and benefits associated with the proposed changes with respect to filing deadlines, exit thresholds, and other required disclosures. Finally, we consider the relative benefits and costs of the principal reasonable alternatives to the amendments.
We estimate that the amendments will result in 527 additional issuers being classified as non-accelerated filers, and therefore no longer subject to the filing deadlines and ICFR auditor attestation requirement applicable to accelerated filers.
Our estimate of the number of affected issuers does not include any FPIs. We estimate that there are no FPIs that file on domestic forms and present their financial statements pursuant to U.S. GAAP, and that also meet the required thresholds and other qualifications to be an affected issuer under the amendments. However, there are an estimated 31 FPIs that file on foreign forms, but otherwise meet the required thresholds and other qualifications. There are also FPIs filing on foreign forms for which we were unable to determine filer classification or revenues, which could represent up to approximately an additional 90 FPIs that file on foreign forms but that may meet the required thresholds and other qualifications.
As noted above, the total number of affected issuers includes an estimated 154 EGCs (including 152 EGCs with annual revenues or, in the case of BDCs, investment income of less than $100 million and two EGCs that will be affected because they have a public float of at least $50 million but less than $60 million).
Of the 373 issuers that will be newly exempt from the ICFR auditor attestation requirement, we estimate that the 78 banks identified above will be subject to the FDIC auditor attestation requirement,
We estimate that approximately 90 percent of the affected issuers (whether including or excluding EGCs) have securities that are listed on national exchanges.
Figure 4
Relative to the distribution for all accelerated filers presented in Figure 2, the sample of affected issuers is more strongly skewed toward lower levels of public float, with higher levels of public float only thinly represented. However, some of the affected issuers do have public float approaching the top of the range for accelerated filers.
Figure 5 presents the distribution of revenues across the 520 accelerated filers (or large accelerated filers with public float of less than $560 million) that will be newly classified as non-accelerated filers because they have revenues (or, in the case of BDCs, investment income) of less than $100 million.
Other than a concentration of issuers with zero or near zero revenues,
The affected issuers are estimated to have median total assets of about $185 million, a median number of employees of about 115, and a median age of about 12 years.
The affected issuers are heavily concentrated, based on the number of issuers, in the “Pharmaceutical Products” (29.1 percent), “Banking” (22.4 percent),
One commenter noted they sought to understand the industry concentration of the affected issuers based on measures such as their public float,
Amongst the industries in which the affected issuers are most greatly concentrated, issuers in the “Pharmaceutical Products” industry are the most disproportionately affected based on the number, total assets, revenues, and public float of the affected issuers (other than EGCs) relative to the representation of this industry among accelerated filers (other than EGCs). While a substantial fraction of accelerated filers other than EGCs in the “Banking” industry are also affected issuers, consistent with one commenter's finding that “Banking” is the industry most affected by the amendments,
The ICFR auditor attestation requirement has been associated with increased audit fees and other compliance costs. Exempting the affected issuers from this requirement therefore is likely to have the benefit of reducing compliance costs for these issuers. Given the disproportionate burden that the fixed component of compliance costs imposes on smaller issuers, as well as the likelihood that many of the affected issuers face financing constraints, these costs savings may enhance capital formation and competition. The discussion below explores the anticipated cost savings and their potential implications in detail. This discussion is focused on affected issuers that are not expected to be subject to the FDIC auditor attestation requirement.
We begin by summarizing evidence on the indirect costs and net costs of the ICFR auditor attestation requirement. We then estimate the anticipated effects on audit fees and on other compliance costs of expanding the exemption from this requirement for the affected issuers, using reported audit fees, survey data, and existing studies. Finally, we discuss the implications of the cost savings and other potential benefits.
The ICFR auditor attestation requirement may impose costs on issuers and investors beyond the direct costs of compliance. For example, an increased focus on ICFR as a result of
While we are unable to quantify the extent to which the expected cost savings exceed any loss of benefits associated with the ICFR auditor attestation requirement,
Some studies have provided evidence that non-accelerated filers may seek to avoid crossing the $75 million public float threshold and becoming accelerated filers.
Avoidance of the $75 million public float threshold would be consistent with smaller issuers finding the net costs associated with the ICFR auditor attestation requirement to be significant, though there could be other reasons for avoiding the threshold. For example, as one commenter argued, such avoidance may reflect managers who would like to avoid the scrutiny of an audit of ICFR because they are engaging in opportunistic behavior,
Figure 6 presents the distribution of public float across issuers other than banks, ABS issuers, and RICs. We exclude ABS issuers and RICs because they are unlikely to be sensitive to the public float threshold as they would not be subject to the ICFR auditor attestation requirement (or able to avail themselves of the disclosure accommodations for SRCs) regardless of their public float. We exclude banks because they may be subject to the FDIC auditor attestation requirement, which, as discussed above, is comparable to the ICFR auditor attestation requirement, regardless of their public float. While EGCs would not be subject to the ICFR auditor attestation requirement regardless of their public float, we nevertheless include them in Figure 6 because it is a temporary exemption and such issuers may already consider the implications of their public float in advance of graduating from this status. However, we obtain similar results when we include or exclude any of these categories of issuers.
The pattern in Figure 6 demonstrates that there may be some “bunching” of public floats below the $75 million threshold in 2018. The pattern is similar to that presented in two recent studies that find a discontinuity in public float at the $75 million threshold when considering data across the 12 or 13 year period ending in 2015.
Our findings are less consistent with another analysis of public float, which failed to find evidence of “bunching” in 2017.
As discussed above, if issuers seek to avoid crossing the $75 million public float threshold, such behavior could reflect a high net cost of the ICFR auditor attestation requirement but could also reflect a self-serving desire to avoid scrutiny. Any such behavior could also be influenced by other requirements associated with this public float threshold during this time period, such as the loss of scaled disclosure accommodations available to SRCs.
We have also considered studies that have used other methodologies to attempt to quantify the net costs or benefits of the ICFR auditor attestation requirement. One study attempts to quantify and compare certain costs and benefits of exempting non-accelerated filers from the ICFR auditor attestation requirement, focusing on those costs and benefits that the study deems to be measurable, and finds that the cost savings associated with exempting these issuers (an estimated $388 million in aggregate audit fee savings) have been less than the lost benefits (
The rate of exempt issuers voluntarily obtaining an ICFR auditor attestation has generally been low.
When considering the net tradeoff between costs and benefits for accelerated filers with low revenues in particular, we also re-examined data
While issuers disclose their total audit fees, they are not required to disclose the portion of these fees that is attributable to the ICFR auditor attestation requirement. Studies of the initial implementation of the ICFR auditor attestation requirement found that it was associated with a roughly 100 percent increase in audit fees for small accelerated filers.
In the Proposing Release, we presented an analysis of audit fees from 2014-2017 for low-revenue issuers that are subject to the ICFR auditor attestation requirement compared to low-revenue issuers not subject to this requirement.
Several commenters indicated that the expected cost savings are difficult to accurately quantify.
We therefore maintain, without change, our estimate of $110,000 in average audit fee savings per year per affected issuer that would be newly exempt from the ICFR auditor attestation requirement. As noted in the Proposing Release, the audit fee savings are expected to vary across the affected issuers, with some experiencing smaller savings and some experiencing much larger savings depending on their individual circumstances. In line with this expectation, several commenters insisted that any reductions in audit fees resulting from the amendments would depend on facts and circumstances and vary widely among issuers.
One commenter noted that the requirement to implement scaled, risk-based audits of ICFR should already result in an appropriately reduced cost of the ICFR auditor attestation requirement for many affected issuers.
Finally, we note that some issuers may voluntarily choose to continue to make these expenditures if they deem the benefits of the ICFR auditor attestation to exceed the cost, and that the extent of savings may be affected if auditors continue to test the operating effectiveness of some controls as part of their financial statement audit. In such cases, the audit fee savings may be reduced, but we would expect the potential costs of expanding the exemption from the ICFR auditor attestation requirement to be correspondingly lower as well.
The ICFR auditor attestation requirement is associated with other compliance costs beyond audit fees, including outside vendor costs and internal labor costs.
The Proposing Release presented an analysis of data from the 2008-09 Survey on the non-audit costs of SOX Section 404 in general, such as outside vendor costs, labor, and non-labor costs (such as software, hardware and travel costs), as well as the percentage of the outside vendor costs and labor hours that were attributable to the ICFR auditor attestation requirement. Based on this analysis, we estimated that the average non-audit costs attributable to the ICFR auditor attestation requirement at the time of the survey were approximately $125,000 per year.
Commenters did not provide alternative methodologies for obtaining an estimate of the average non audit-fee savings. One recent study focusing on low public float issuers considered the potential effect of the ICFR auditor attestation requirement on selling, general and administrative (“SG&A”) expenses other than audit fees, and concluded that there was an association with an increase in these internal costs, but was unable to reliably estimate the magnitude of this effect.
As in the case of audit fees, some of the affected issuers are expected to experience lower cost savings while others would experience greater savings, depending on their individual circumstances. For example, we noted in the Proposing Release that some issuers had reported potential cost savings other than audit fees ranging from about $110,000 to about $350,000.
While we estimate the average compliance cost associated with the ICFR auditor attestation requirement for the affected issuers, it is more difficult to discern whether incurring the costs of this requirement represents the most effective use of funds for these issuers. As discussed in Section IV.C.3.c. below, issuers for whom the requirement is eliminated may determine that it is worthwhile to use these funds to voluntarily undergo an audit of ICFR.
In total, we estimate an average cost savings of $210,000 per issuer per year, with some of the affected issuers experiencing lesser or greater savings.
Several commenters argued that these cost savings are economically small.
In particular, while the average annual cost savings may represent a small percentage of the average affected issuers' revenues and market capitalizations, it is significant relative to the income and cash flows of these issuers. As noted in the Proposing Release, low-revenue issuers are likely to face financing constraints because they do not have access to internally-generated capital.
Further, several commenters cited fixed costs of compliance that do not scale with size.
The alleviation of these costs could be a positive factor in the decision of additional companies to enter public markets.
Some commenters suggested that the amendments would encourage companies to enter the public markets.
Research investigating the link between SOX and companies exiting or choosing not to enter public markets has been inconclusive.
Exempting the affected issuers from the ICFR auditor attestation requirement may result, over time, in management at this category of issuers being less likely to maintain effective ICFR, which in turn may result in less reliable financial statements, on average, for these issuers. The discussion below explores this potential effect and its implications in detail. We also consider two mitigating factors that could be associated with the affected issuers on average, though we acknowledge that they may not apply equally to all of the affected issuers. First, low-revenue issuers may, on average, be less susceptible to the risk of certain kinds of misstatements, such as errors associated with revenue recognition.
Exempting the affected issuers from the ICFR auditor attestation requirement could also increase the risk that material weaknesses in ICFR may not be detected and disclosed, and thereby reduce the information available to investors for gauging the reliability of these issuers' financial statements. In this regard, we also discuss below the potential effects related to the identification and disclosure of material weaknesses in ICFR at the affected issuers. However, given the size of the estimated effect as well as recent findings discussed in Section IV.C.3.a. below on how ICFR auditor attestations may provide limited information about the risk of future restatements,
This section summarizes a number of broad economic considerations related to the possible effects of an ICFR auditor attestation requirement on financial reporting in order to provide context for the more detailed analysis of the costs of exempting the affected parties from this requirement that follows. As discussed below, the anticipated effects of changes to the population of issuers subject to the ICFR auditor attestation requirement will depend on the characteristics of the specific group of issuers that will be affected. In this regard we note that prior research has not focused on the effects of the ICFR auditor attestation requirement on low-revenue issuers in particular. As discussed in Section IV.B.1., there also have been significant changes over time in the implementation of the ICFR auditor attestation requirement, the standards applying to a financial statement audit even in the absence of an audit of ICFR, and the execution of audits of financial statements and of ICFR, which may have had the effect of reducing both the incremental costs and incremental benefits of an ICFR auditor attestation since the periods studied in much of the existing research. We therefore acknowledge that, while we believe that consideration of the past research is an important part of our analysis, these factors limit our ability to rely on the findings of past research to predict how the amendments would affect the particular class of issuers implicated by this rulemaking.
ICFR auditor attestations can have two primary types of benefits. First, the ICFR auditor attestation reports can provide incremental information to investors about the reliability of the financial statements. Second, the reliability of the financial statements can be enhanced. That is, the expectation of, or process involved in, the ICFR auditor attestation could lead issuers to maintain better controls, which could lead to more reliable financial reporting. Importantly for our evaluation of these possible benefits, however, we do not directly observe the effectiveness of ICFR and the reliability of financial statements, but only the associated disclosures by issuers. For example, while restatements may indicate that controls have failed, such restatements are often predicated on the underlying misstatements being detected. Given such limitations with the available data, the analysis in existing studies and in this release is necessarily less than definitive.
Regarding the first possible benefit of ICFR auditor attestations, academic research provides some evidence that ICFR auditor attestation reports contain information about the reliability of financial statements, but also demonstrates that the incremental information provided by these reports may be limited. The 2011 SEC Staff Study summarizes evidence that ICFR auditor attestations generally resulted in the identification and disclosure of material weaknesses that were not previously identified or whose severity was misclassified when identified by management in its assessment of ICFR, and that investor risk assessments and investment decisions were associated with the findings in auditor attestation reports.
However, more recent studies have found that auditor identification of material weaknesses in ICFR tends to be concurrent with the disclosure of restatements, rather than providing advance warning of the potential for
A further reason why ICFR auditor attestation reports may provide only a weak warning about future restatements is that the audit of ICFR may contribute to the avoidance of misstatements, leading us to observe only the residual restatements where the misstatement risk was not foreseen or a misstatement was not detected for reasons unrelated to internal controls. Thus, the second possible benefit we consider is that the audit of ICFR may encourage management to maintain more effective controls and thereby deter accounting errors and fraud. The academic research discussed below documents substantial evidence that would be consistent with such effects, though, as is common in financial economics, it is difficult to determine whether the documented differences can be causally linked to the audit of ICFR.
In particular, while issuers are subject to a number of requirements discussed above that are intended to help to provide adequate internal controls and reliable financial statements,
To the extent that the ICFR auditor attestation requirement leads to more effective ICFR, this requirement may thereby lead to more reliable financial statements. Some studies have found that a failure to maintain effective ICFR has been associated with a higher rate of future restatements and lower earnings quality,
Generally, ICFR auditor attestations also have been found to be directly associated with financial statements that are more reliable than in the absence of these attestations.
To evaluate the economic implications of any effects the ICFR auditor attestation requirement has on ICFR and financial statements, we can consider factors such as production or investment at the issuer or market level. For example, at the issuer level, more reliable disclosures are generally expected, based on economic theory, to lead investors to demand a lower expected return to hold an issuer's securities (
More effective ICFR and more reliable financial reporting may also lead to improved efficiency of production if managers themselves thereby have access to more reliable data that facilitates better operating and investing decisions.
Many commenters cited the benefits that have been ascribed to the ICFR auditor attestation requirement in general and attested to their importance. For example, some stated that the ICFR auditor attestation requirement promotes more effective ICFR and more accurate ICFR disclosures,
Importantly, all of these benefits, at both the issuer and market level, likely vary across issuers of different types. For example, younger, loss-incurring issuers with lower market capitalization and lower institutional ownership, as well as those with more segments, tend to be more likely to newly disclose material weaknesses as they transition into the ICFR auditor attestation requirement.
The academic literature discussed in Section IV.C.3.a. above suggests that the scrutiny associated with the ICFR auditor attestation may lead issuers that are required to obtain this attestation to maintain more effective ICFR and to remediate material weaknesses in ICFR more quickly, leading to more reliable financial statements. Further, as discussed above, studies have highlighted that smaller issuers are disproportionately represented in populations of issuers with ineffective ICFR and financial statements that require material restatement. In addition, smaller issuers are less likely to have significant external scrutiny in the form of analyst and media coverage and monitoring by institutional owners,
This section therefore provides an analysis of low-revenue issuers using recent data to complement the existing studies and better inform our consideration of the possible costs of the amendments. However, some uncertainty will remain due to the challenges discussed above in measurement and in ascribing causality in any such analysis, the limited sample sizes that result when restricting the analysis to recent years, and the general difficulty of predicting how the parties involved will react to the amendments. As discussed in more detail in the Proposing Release,
One commenter suggested that we should more carefully consider the audit risks linked to specific industries that are expected to be affected by the amendments, highlighting the banking industry as one that may have special considerations.
Another commenter indicated that the primary quantifiable cost of an exemption from the ICFR auditor attestation requirement stems from misreporting regarding the effectiveness of ICFR.
We first consider possible effects related to the effectiveness of the affected issuers' ICFR. In the Proposing Release, we presented an analysis of the rate of ineffective ICFR from 2014-2018 among low-revenue issuers that are subject to the ICFR auditor attestation requirement compared to low-revenue issuers not subject to this requirement.
Because the previous analysis focuses on disclosed rates of ineffective ICFR, it does not address the extent to which the amendments may affect the detection and disclosure of material weaknesses
In the Proposing Release, we noted that low-revenue issuers may be less likely than other issuers to fail to detect and disclose material weaknesses in the absence of an ICFR auditor attestation, perhaps because they have less complex financial systems and controls.
In the Proposing Release, we did not quantitatively estimate a potential effect on the detection and disclosure of material weaknesses in ICFR, though we did qualitatively consider how the amendments could affect issuers depending on their proclivity to detect and disclose underlying material weaknesses in the absence of an ICFR auditor attestation.
Because undetected and undisclosed material weaknesses cannot be directly observed, we are not able to directly estimate the extent of such issues in our comparison samples of low-revenue issuers that are not subject to the ICFR auditor attestation requirement. Instead, we rely on a recent study that estimates that an incremental 3.5 percent of issuers misreport their ICFR as being effective when not subject to the ICFR auditor attestation requirement as compared to when they are subjected to this requirement.
We directly apply the results from the study and estimate that 3.5 percent of the affected issuers that will be newly exempt from all ICFR auditor attestation requirements may misreport that their ICFR is effective, but would not misreport if subjected to those requirements. To be conservative, we do not adjust this estimate based on our conjecture that low-revenue issuers may be less likely than other issuers to fail to detect and disclose material weaknesses in the absence of an ICFR auditor attestation, perhaps because they have less complex financial systems and controls. However, we note that the estimate may be somewhat inflated to the extent that this conjecture is correct.
We next consider the extent to which the possible effects on reported and unreported material weaknesses in ICFR might translate into less reliable financial statements. By definition, material weaknesses represent a reasonable possibility that a material misstatement of the issuer's financial statements will not be prevented or detected on a timely basis,
We explored this possibility empirically in the Proposing Release, by comparing the percentage of issuers in different categories that eventually restated some of the financial statements that they reported for a given year, for the years 2014 through 2016. Because we directly considered differences in actual restatements across these groups of issuers, these results should incorporate the effects of differences across the groups in both reported and unreported material weaknesses in ICFR. Our analysis demonstrated that issuers with revenues of less than $100 million have, on average, restatement rates that are three to nine percentage points lower than those for higher-revenue issuers of the same filer status.
A number of commenters maintained that the risks of financial statement restatements or misstatements are greater for the issuers that would not be subject to the ICFR auditor attestation requirement under the proposed amendments than for other issuers.
Other commenters noted that low-revenue issuers may be more susceptible to misstatements in revenue recognition
However, in response to the comments, we further examine the argument that the affected issuers may be less susceptible to certain kinds of misstatements, such as those related to revenue recognition, by examining the types of restatements among low- and higher-revenue accelerated filers other than EGCs in Table 11.
Table 11 presents the percentage of low-revenue and higher-revenue accelerated filers other than EGCs restating their financial statements under a particular category of restatement for a given year from 2014 through 2018. The table presents the results for the 15 most common restatement categories for low-revenue accelerated filers other than EGCs. Restatements can fall into more than one category, so the total of these percentages across all restatement categories would exceed the average rate of restatements. We also report the relative percentage of the restatement rate in a given category among the low-revenue issuers relative to the higher-revenue issuers.
Table 11 demonstrates that 1.3 percent of low-revenue accelerated filers other than EGCs restated their financial statements for a given year from 2014 to 2018 due to revenue recognition issuers, representing about 40 percent of the rate of this type of restatement among higher-revenue accelerated filers other than EGCs. Similarly, for the next three most common categories of restatements for low-revenue accelerated filers other than EGCs, the restatement rates of these issuers represented 42- to 60 percent of the corresponding rates among higher-revenue accelerated filers other than EGCs. Thus, this evidence supports our belief that the affected issuers may be less susceptible to certain kinds of misstatements, such as those related to revenue recognition. However, consistent with commenters concerns about other sources of misstatements, particularly with respect to complex contracts and arrangements, we find that the rate of restatements in some other categories is more similar across the two groups. For example, the rate of restatements related to “Debt, quasi-debt, warrants & equity (BCF) security
We therefore continue to believe that the evidence supports our hypothesis that the affected issuers are less likely to make restatements, perhaps because they are, on average, less susceptible to certain kinds of misstatements (such as those related to revenue recognition), than other accelerated filers. While this finding may mitigate the adverse effects on the reliability of financial statements for the affected issuers that will newly be exempt from all ICFR auditor attestation requirements, we nonetheless expect some such effects. Based on the analysis in the Proposing Release, and with consideration for the difference in size and maturity of the affected issuers versus the comparison sample, we estimated that the rate of restatements among the affected issuers may increase by two percentage points.
Several commenters indicated that we should have given consideration to the magnitude of restatements.
Table 12 demonstrates that, among low-revenue issuers, the accelerated filers other than EGCs have a 0.2 percentage point (relative to non-accelerated filers other than EGCs) or 1.5 percentage point (relative to EGCs) lower rate of Item 4.02 restatements than the issuers in the comparison populations, which are not subject to the ICFR auditor attestation requirement. Following our analysis in the Proposing Release, given the difference in size and maturity of the affected issuers versus the comparison samples, we look to the lower end of this range and, with rounding, estimate that the rate of Item 4.02 restatements among the affected issuers may increase by 0.5 percentage points. Given how low the rates of Item 4.02 restatements are, the sample sizes in Table 12 are not sufficient to reliably differentiate between these rates. We are nevertheless comfortable with this estimate because it is consistent with the estimate that would be obtained by applying the average rate of Item 4.02 restatements out of all restatements, per Table 9 above,
This estimate of the effects on restatements that issuers deem to be material may help to provide some perspective on the magnitude of the anticipated effect. We provide further analysis of these magnitudes by exploring the market and financial statement impacts of the estimated effect on restatements. Table 15 in Section IV.C.3.c below provides related estimates per Item 4.02 restatement for low-revenue, seasoned issuers. In particular, the average net income impact for Item 4.02 restatements is estimated to be −$1.9 million per year of restated financials for the 80 percent of cases where there is a net income impact, which is −$1.9 million times 80 percent or −$1.5 million on average across all cases. The average stock market impact is estimated to be −$1.4
One commenter provided alternative estimates of the magnitude of the effect on restatements, estimating that the affected issuers restated a total of $295 million in net income over the five years from 2014 through 2018 and that the 2018 restatements reduced market capitalizations by $294 million in aggregate.
Secondly, these estimates reflect the years in which restatements were announced rather than when the actual misstatement occurred. Effective ICFR is intended to reduce the risk of material misstatements, so we believe it is important to focus on when misstatements occurred, not when earlier misstatements were detected and announced, which could actually be a sign of a careful audit and effective ICFR. Focusing on the year of the restatement announcement rather than the year of the misstatement could capture firms that may not have qualified as affected issuers during the time the misstatements were made, but only dropped into the category of affected issuers because of the reduction in public float or revenue that resulted from the major restatement and related issues.
Several commenters indicated that we should give additional consideration to the potential impacts of the amendments on the risk of fraud.
We acknowledge that fraudulent misconduct does occur, including at low-revenue issuers, and that the incentives to engage in such misconduct could be heightened for certain low-revenue issuers, depending on their specific situation. It is less clear what the average risk of fraud is across low-revenue issuers in general, and how this overall risk may be affected by the ICFR auditor attestation requirement. Measuring these effects is challenging because the sample sizes associated with typical measures of fraud are small, making reliable statistical determinations difficult. Further, we do not have an observable measure of all latent fraudulent conduct, but can only examine fraud that has been detected and that led to some observable action, which may not be a representative sample of all actual fraudulent activity. However, we acknowledge that it is important to carefully consider the potential impact of the amendments on the risk of fraud. We therefore use the available evidence and data to analyze this risk.
We start by considering Accounting and Auditing Enforcement Releases (“AAERs”)
Because the overall sample size of AAERs is limited, we use the full sample of years for which data is available, such that the alleged misconduct we analyze ranges from fiscal year 1971 to 2016 (based on AAERs issued from 1982 through 2018). We focus on issuers that are not within five years of their IPO (“seasoned issuers”) to better represent the affected issuers. Revenues are measured as of the date of the first misstated financial statements associated with an AAER, rather than at the date of the enforcement action, which is generally many years after this date.
In Table 13, we consider all AAERs with alleged financial misstatements (row 2), as well as two subsets of these AAERs that we identify for those issued in, roughly, the past two decades.
Per the second through fourth rows of Table 13, the representation of low-revenue seasoned issuers among all seasoned issuers with any of these types of AAERs ranges from 24 to 42 percent. For comparison, we also derive the representation of low-revenue seasoned issuers among all seasoned issuers in the population. Per the first row of Table 13, across all of the years of our sample, and specifically among the seasoned issuers, 50 percent of the issuer-year observations are associated with low revenues.
A caveat to this finding is that it only reflects cases of discovered and charged alleged misconduct, and may not be representative of all cases of actual misconduct.
We next consider whether expanding the exemption from the ICFR auditor attestation requirement for such issuers would affect their likelihood of engaging in such activities. To address this question, we rely on a study that associates material weaknesses in ICFR with an increased rate of “financial reporting fraud.”
Given that any impact of the ICFR auditor attestation requirement on the risk of fraud is likely to result from the effect of this requirement on the effectiveness of ICFR, we apply the results of this study to our estimated effect on ICFR to quantify the potential increase in this risk that could be associated with the amendments. Per the results earlier in this section, we estimate that the amendments may eventually result in an additional 15 percentage points of the affected issuers maintaining ineffective ICFR. Examining the types of material weaknesses experienced by low-revenue issuers of different filer statuses, we find that up to 85 percent of their material weaknesses would be classified as “entity-level” material weaknesses as defined by the study we are relying on.
To better understand the magnitude of this potential effect, we rely on another study that estimates that issuers lose a total of 38 percent of their equity market value upon announcements of “financial misrepresentation,” or, given that the alleged violation periods in their sample span 27 months on average, 17 percent of equity market capitalization for each affected year.
Overall, this analysis does not cause us to change our primary conclusions regarding the potential effects of the amendments.
We anticipate that the potential adverse effects of the amendments will develop gradually and are likely to be relatively limited in the short term. We discuss the reasons that we expect a gradual evolution in the remainder of this section. Nevertheless, we recognize that a delay in realizing some of the associated costs from the amendments would not necessarily mitigate their ultimate effects. The preceding discussion is based on the comparison of steady-state differences across issuers in different categories, and represents an analysis of the eventual effects of the amendments. Because the amendments will allow some current accelerated filers to transition to non-accelerated filer status, some issuers that have already been subject to an audit of ICFR for one or more years may no longer be required to obtain an ICFR auditor attestation. While other issuers will enter into the affected issuers category without having previously obtained an ICFR auditor attestation, and such issuers are likely to represent a larger fraction of the affected issuers over time, initially issuers with experience with ICFR auditor attestations are expected to represent a substantial fraction of the affected issuers.
Newly exempt issuers may have implemented control improvements that would persist regardless of a transition. For example, they may have made investments in systems, procedures, or training that are unlikely to be reversed. It is difficult to predict the degree of inertia in ICFR and financial reporting in order to gauge how quickly, if at all, issuers that cease audits of ICFR may evolve such that their ICFR and the reliability of their financial statements is more characteristic of exempt issuers.
Affected issuers with experience with audits of ICFR may also be more likely to continue to obtain an ICFR auditor attestation on a voluntary basis than other exempt issuers are to begin voluntary audits of ICFR. This may be due to such issuers having already incurred certain start-up costs or facing demand from their current investors to continue to provide ICFR auditor attestations. Some issuers in the groups that we use for comparison, which are not subject to an ICFR auditor attestation requirement, voluntarily obtain an ICFR auditor attestation. Thus, the comparisons made above at least partially account for the fact that some issuers may choose to obtain an ICFR auditor attestation even in the absence of a requirement. However, to the extent the rate of voluntary ICFR auditor attestations would be higher amongst the issuers that will be newly exempt from the ICFR auditor attestation requirement than other exempt issuers, the anticipated costs of the amendments in the near term may be further reduced.
While we anticipate that the frequency of ineffective ICFR and, to a lesser extent, restatements may increase among the affected issuers as a result of the amendments, the economic effects of these changes may be reduced by another factor that may apply to many of these issuers. In particular, the usefulness of more reliable financial statements is linked to the degree to which they factor into the decisions of investors,
We explored this possibility empirically in the Proposing Release, which used the methodology applied in previous studies to calculate, for issuers above and below the $100 million revenue threshold, the extent to which the variation in market performance is related to the variation in financial measures. For issuers at or above $100 million in revenue, we found, consistent with the findings of previous studies of all issuers, that key financial variables (the book value of assets and liabilities, the book value of equity, earnings, and the change in earnings) explain about 60 to 70 percent of the variation in equity market capitalization and 7.5 percent of the variation in stock returns.
One commenter indicated that a low-revenue issuer could have a large market capitalization and thus “greater investor exposure.”
The first three rows of Table 14 are similar to the analysis in the Proposing Release, but are limited to issuers that are not within five years of their IPO. Focusing on this subsample of low-revenue issuers, which is more representative of the affected issuers that would be newly exempt from the ICFR auditor attestation requirement, we find that the financial variables considered in the Proposing Release explain about 40 to 45 percent of the variation in equity market capitalization and about 5.5 percent of the variation in stock returns. These percentages are slightly higher than our results for all low-revenue issuers in the Proposing Release (for which the variables explain about 30 percent and 4.5 percent of the variation in equity market capitalization and stock returns respectively, as noted above). However, they remain substantially lower than the results for higher-revenue seasoned issuers, for which the variables explain about 60 to 70 percent of the variation in equity market capitalization and about 7.5 percent of the variation in stock returns.
The second panel of Table 14 considers additional variables based on the comment letter discussed above and on academic accounting literature on key value-relevant metrics. For example, the role of the book value of equity in valuation may reflect, among other things, the liquidation or adaptation value of an issuer.
In considering further variables that would be appropriate to include in this analysis, we note that low-revenue issuers are significantly more likely to be loss-making than higher-revenue issuers.
As demonstrated in the last two rows of Table 14, including these additional variables does increase the amount of variation in equity market capitalization and stock returns explained by the financial statement variables. However, the percentage of explained variation remains lower for low-revenue seasoned issuers than for higher-revenue seasoned issuers.
These results demonstrate that financial statement information is not irrelevant for low-revenue issuers. That is, information from financial statements is associated with market prices and returns for these issuers as well as other issuers. Thus, the potential reduction in the reliability of financial
In contrast to these findings, a number of commenters cited analysis in Commissioner Jackson's Statement suggesting that, based on the stock market reaction to annual report filings disclosing material weaknesses in ICFR, investors care most about the information provided by the ICFR auditor attestation of low-revenue issuers.
First, we consider the market reaction to the filing of annual reports that contain ICFR auditor attestations reporting material weaknesses in ICFR. We only consider ICFR auditor attestation reports, as opposed to Section 404(a) management reports, in order to focus on a sample of issuers comparable to the affected issuers
Our analysis does not suggest that investors care more about the information produced by the ICFR auditor attestation requirement at low-revenue issuers. In particular, investors did not react more negatively to low-revenue issuers disclosing material weaknesses than to such disclosures by the higher-revenue issuers. None of the cumulative average abnormal returns plotted in the figure, whether for low- or higher-revenue issuers, are statistically differentiable from zero at conventional confidence levels.
Our figure differs from the similar analysis that was cited by commenters for a number of reasons. First, that analysis includes a number of duplicate observations.
Second, more than half of the non-duplicate low-revenue observations in the other analysis appear to reflect reports of material weaknesses in Section 404(a) management reports in the absence of an ICFR auditor attestation. As discussed above, our analysis excludes observations where there is only a Section 404(a) management report because we believe they have limited relevance when considering the affected issuers and the effects of the amendments. Third, the other analysis reflects a different time horizon (2004 through 2017) than our analysis (2009 through 2018). In our analysis, we restrict the time horizon to the period after the effectiveness of AS No. 5 because the nature of ICFR auditor attestations may have changed after this point. These additional differences in
There is substantial noise inherent to an analysis of the disclosure of material weaknesses in annual reports, both because these reports often contain or are accompanied by significant confounding information
As with our previous analyses, this supplemental analysis also does not support the assertion that investors care more about the reliability of the information in the financial statements of low-revenue issuers than that of higher-revenue issuers. The market reaction to Item 4.02 Form 8-K filings is statistically indistinguishable from zero for low-revenue, seasoned issuers, but is negative and statistically significant for higher-revenue issuers. While the point estimates for the market impact of the restatements are uncertain, as demonstrated by the confidence intervals presented in the second row of Table 15, the corresponding point estimates for the dollar market impact per restatement announcement are also substantially lower (at $1.4 million versus $22.0 million) for low-revenue seasoned issuers as compared to higher-revenue seasoned issuers. The rate of Item 4.02 restatements with negative financial statement impact or with net income impact is similar for both categories of issuers, at about 80 percent. We also consider how the average dollar market impact of the restatements relates to the average dollar correction in annualized net income, in case investors react more strongly per dollar of the correction in annualized net income for low-revenue issuers. However, Table 15 does not provide evidence that the corresponding point estimate dollar market impact is proportionately greater relative to the average annualized effect on net income for low-revenue seasoned issuers than for high revenue seasoned issuers.
Overall, we acknowledge that a lower reliability of their financial statements may have significant effects on the valuation of certain low-revenue issuers. It is possible, for example, as one commenter stated, that “[for] many low-revenue companies that are struggling to become high revenue companies . . . their ability to attract capital may depend primarily on their ability to convince analysts and investors that their revenues are strong and steadily rising.”
A number of commenters indicated that we should make further attempts to quantify the potential costs of the amendments.
Overall, as discussed in more detail below, we are able to quantitatively estimate, per year per affected issuer, a total of approximately $60,000 in costs and an additional approximately $10,000 in transfers across shareholders, which represent costs to some shareholders and benefits to other shareholders.
Given that our estimate of the cost savings per year per affected issuer is $210,000, we do not find evidence to support the views of the commenters that indicated that the costs of the amendments would significantly outweigh the benefits. However, we note two main caveats associated with our estimates of the costs and transfer that may result from the amendments, and with the underlying components of these estimates, which are discussed in more detail below. First, these estimates are necessarily more uncertain than our monetized estimates of cost savings to issuers because they are based on a larger number of assumptions. Secondly, we caution against attempts to over-interpret the relation between our quantitative estimates of monetized benefits and monetized costs, because neither of these measures is complete. For example, we are not able to monetize the potential benefit of reduced management distraction from operating activities
We provide further quantification of potential adverse effects of the amendments in this section, while the next section provides a discussion of these costs as well as other economic costs that we are unable to quantify. We begin by considering costs that may represent deadweight losses, or net costs to society, followed by a consideration of transfers across shareholders. First, we estimate the potential deadweight losses associated with a potential increase in the risk of fraud. In Section IV.C.3.b.iv. above, we estimated the magnitude of the potential increase in fraud risk to be about $17,500 in market capitalization per year per affected issuer that will be newly exempt from the ICFR auditor attestation requirements. A study that breaks down the equity market impact of fraud into deadweight losses (such as legal costs and impaired reputation) versus the effects that reflect the market adjusting to a more accurate representation of issuers' financial situations estimates that the former constitute approximately 75 percent of the total equity market loss.
Commenters suggested that we should quantify effects on operating performance associated with ICFR misreporting,
In total, we estimate potential issuer-level costs of $48,000 in reduced earnings plus $13,000 in losses related to the increased risk of fraud, or roughly $60,000 in costs per year on average per affected issuer, though we view this estimate as conservative because it does not fully account for the mitigating factors discussed above. Next, we note that some of the potential adverse effects quantified in Section IV.C.3.b. above may be associated with stock market values that fail, at a given time, to reflect issuers' actual financial position. This potential inflation and later correction of stock market values would result in transfers that benefit some shareholders and harm other shareholders. Further, the same shareholder may benefit in certain of his shareholdings and be harmed in other shareholdings. Also, at any given time, the stock price may be inflated for certain reasons but have corrected for other prior inflation, depending on the timing of the revelation of the underlying issues. For the purpose of quantification of these potential transfers, we assume that issues are revealed gradually and smoothly over time, such that there is an even effect across years.
The first source of mispricing we consider is misstatements that later translate into restatements. In Section IV.C.3.b.iii. above, we estimated that the magnitude of the potential increase in Item 4.02 restatements represented −$5,000 in stock market impact per year per affected issuer. Secondly, we estimated earlier in this section that the magnitude of the potential increase in fraud risk is about −$17,500 in market capitalization per year per affected issuer, of which 25 percent or about −$4,500 reflects the market adjusting to a more accurate representation of issuers' financial situations.
As discussed above, these estimates are intended to be responsive to commenters who indicated that further quantitative analysis of the costs of the amendments would be appropriate. One commenter also provided alternative quantified estimates of the costs of expanding the exemption from the ICFR auditor attestation requirement, estimating a $1.7 million loss in future earnings and $2.2 million in forgone market value per issuer.
Another commenter
While the previous section provided computations of monetary estimates of certain potential adverse effects of the amendments, this section provides further discussion of those costs as well as other economic costs that we are unable to quantify. Per the discussion in Section IV.C.3.a. above, any impact of the amendments on the effectiveness of ICFR and the reliability of financial statements may have issuer-level implications as well as market-level implications. At the issuer level, the potential increase, on average, in the rate of ineffective ICFR and restatements may lead investors to charge a somewhat higher average cost of capital for the affected issuers. An issuer's cost of capital, or the expected return that investors demand to hold its securities, determines the price at which it can raise funds. Thus, any such increase may be associated with a reduction in
Several commenters expressed the view that eliminating the ICFR auditor attestation requirement would increase the cost of capital for certain issuers because of the potential effects of this change on the reliability of the financial statements of the affected issuers.
The available evidence supports the qualitative, directional effects on cost of capital noted above. That is, some of the affected issuers could experience an increase in their cost of capital. However, the previous section demonstrated that the potential increase in material weaknesses in ICFR that we estimate could occur may translate into a more limited effect on the reliability of disclosures, as measured, for example, by the rate of restatements, for the affected issuers. Also, based on our analysis, the financial metrics of these issuers have lower explanatory power for investors' determination of their value than in the case of other issuers. These two factors may mitigate the potential adverse effects on the affected issuers' cost of capital.
In addition, some of the costs of extending the exemption from the ICFR auditor attestation requirement to additional issuers may be further mitigated by the fact that some issuers, even if exempted, may voluntarily choose to bear the costs of obtaining such an attestation.
The available evidence also supports the qualitative, directional effects on operating performance noted above. That is, some of the affected issuers could experience lower operating performance due to reliance on less reliable financial statements in their decision-making. Like the potential effects on the cost of capital, the potential effect on issuer operating performance associated with reported ineffective ICFR is also difficult to estimate and is likely to be mitigated by the multiple factors discussed above. Further, the point estimates in one study demonstrate that issuers that remediate their reported material weaknesses in ICFR might be able to make up a substantial amount of the previous operating underperformance.
We do, however, quantify potential effects on operating performance associated with ICFR misreporting, which are less likely to be corrected by remediation because the underlying material weaknesses are likely undetected. We also estimate potential deadweight losses (
We note that issuers and other market participants may adapt to the proposed changes in various ways, which may serve to enhance or mitigate the anticipated issuer-level costs. However, these actions, and therefore their net effects, are difficult to predict. For
While the preceding analysis considers the average effects across the affected issuers on the effectiveness of ICFR and the reliability of financial statements, the potential issuer-level costs of the proposed extension of the exemption from the ICFR auditor attestation requirement likely vary across different types of affected issuers. For example, the effects may vary based on issuers' proclivity to detect and disclose material weaknesses in ICFR in the absence of an ICFR auditor attestation requirement and whether the issuers' have characteristics that the market associates with having such material weaknesses. We discuss this variation in detail in the Proposing Release.
We next consider effects at the market-level. Some of these effects are associated with the transfers across shareholders that we estimated in Section IV.C.3.d.i. above. In total, we estimated that there may be approximately $10,000 of pure transfers across shareholders per year per affected issuer representing corrections in stock values to reflect issuers' actual financial positions. These transfers and the associated mispricing may reduce the efficient allocation of capital at the market level. Further, to the extent that the reliability of financial statements is somewhat reduced on average at the issuer level for the affected issuers, the efficient allocation of capital at the market level may be negatively affected given a diminished ability to reliably evaluate different investment alternatives.
The reduced reliability of financial statements could also negatively impact capital formation through a reduction in investor confidence. Several commenters noted that they expected the amendments to have a negative effect on investor confidence.
Section IV.C.3.a. provides additional discussion of these market-level factors. While we are unable to directly quantify the market-level effects on the efficient allocation of capital and on investor confidence, we anticipate that these effects may be limited due to the size of the expected effect on the reliability of these issuers' disclosures and potential transfers across shareholders as well as the small percentage of the total value of traded securities that is represented by the affected issuers. In particular, we estimate that the affected issuers that will be newly exempt from all ICFR auditor attestation requirements represent 0.2 percent of the total equity market capitalization of issuers.
In this section we consider the potential effects of the amendments with regard to other implications of accelerated filer status, specifically with respect to the timing of filing deadlines, certain required disclosures, and the determination of filer status. We also consider below some incremental effects of the amendments to the thresholds for exiting accelerated and large accelerated filer status and the new check-box disclosure required on the cover page of annual reports on Form 10-K, 20-F, or 40-F.
As discussed in Section IV.B.1. above, non-accelerated filers are permitted an additional 15 days and five days, respectively, beyond the deadlines that apply to accelerated filers, to file their annual and quarterly reports. Extending these later deadlines to the affected issuers may provide these issuers with additional flexibility in preparing their disclosures, while modestly decreasing the timeliness of the data for investors.
Table 6 in Section IV.B.3. demonstrates that while the filing deadlines are not a binding constraint for most accelerated filers, with 63 percent filing their annual reports over five days early in recent years, some accelerated filers are likely to benefit from the extended deadline. For example, filing Form NT automatically provides a grace period of an additional 15 days to file an annual report, and over the past four years, about four percent of accelerated filers filed their annual reports within this grace period rather than by the original deadline. A further five percent of accelerated filers filed their annual reports after these additional 15 days had passed.
Even affected issuers that would otherwise have filed by the accelerated filer deadline may avail themselves of the additional time provided under the amendments to balance other obligations or to prepare higher quality disclosures. The 2003 acceleration of filing deadlines for accelerated filers from 90 to 75 days was associated, at least initially, with a higher rate of restatements for the affected issuers.
On the other hand, allowing the affected issuers to file according to the later non-accelerated filer deadlines may reduce the timeliness and therefore usefulness of the disclosures to investors. Studies have found a reduction in the market reaction to disclosure when the reporting lag between the end of the period in question and the disclosure date is lengthy, as more of the information becomes available through other public channels.
One study found that the 2003 acceleration of filing deadlines was associated with a decrease in the market reaction to the disclosure of annual reports for accelerated filers.
Non-accelerated filers are not required to provide disclosure regarding the availability of their filings under Item 101(e)(4) of Regulation S-K. While some investors may benefit from reduced search costs due to such disclosures, we do not expect that extending the exemption from these disclosures to the affected issuers will have significant economic effects.
Non-accelerated filers also are not required to provide disclosure required by Item 1B of Form 10-K or Item 4A of Form 20-F about unresolved staff comments on their periodic and/or current reports. Studies have found that the eventual disclosure of staff comments and related correspondence, as well as interim information about these comments before they are made public, are value-relevant (in that they affect the pricing of securities) for investors.
The amendments include revisions to the transition thresholds that address when an accelerated filer or large accelerated filer can transition into a different filer status. The amendments will allow accelerated or large accelerated filers to become non-accelerated filers if they qualify under the SRC revenue test or meet a revised public float transition threshold. An issuer whose revenues previously exceeded the SRC initial revenue threshold of $100 million will not qualify under the SRC revenue test unless its revenues fall below $80 million. The $80 million transition threshold for the SRC revenue test is 80 percent of the initial threshold of $100 million in revenue. An issuer whose public float previously exceeded the $75 million initial threshold for accelerated filer status will become a non-accelerated filer if its public float falls below $60 million, or 80 percent of that initial threshold, as opposed to the current threshold of $50 million. Finally, the amendments also revise the public float transition threshold for exiting large accelerated filer status and becoming an accelerated filer from $500 million to $560 million in public float, or 80 percent of the $700 million entry threshold, to align with the transition threshold for entering SRC status after having exceeded $700 million in public float.
The filer type exit thresholds in Rule 12b-2 are set below the corresponding entry thresholds to provide some stability in issuer classification given normal variation in public float and revenues. The exact placement of these thresholds involves a tradeoff between the degree of volatility in classification versus the extent to which the categories persistently include issuers that are below the initial entry thresholds. The Proposing Release presented a quantitative analysis of this tradeoff using 20 years of data on the evolution of market capitalizations (as a proxy for public float) and revenues.
On the other hand, the analysis in the Proposing Release also illustrated that a lower exit threshold is associated with a greater number of issuers remaining in a particular category despite falling below the entry threshold. For example, exit thresholds set at 60 percent of the public float entry thresholds would have prevented four to six percent of the new entrants into a filer status from exiting that status despite being below the entry threshold in the next two years. A low exit threshold can thus risk having a filer status effectively apply to a broader group of issuers than intended.
The analysis in the Proposing Release further demonstrated that the balance between limiting filer status volatility while enabling filer status mobility provided by an exit threshold of 80 percent is similar around a $250 million, $75 million, and $700 million market capitalization. In particular, while five to six percent of the new entrants into a filer status would be expected to transition out and back into the status in the following two years, one to two percent of those entrants would be expected to remain within the same filer status despite being below the entry threshold for the two following years. We therefore expect the increase in the public float thresholds to exit accelerated and large accelerated filer status to $60 and $560 million, or 80 percent of the entry threshold in each case, to lead to a similar tradeoff in these factors as the 80 percent public float threshold to re-enter SRC status.
One commenter noted that certain of the affected issuers may recognize revenues unevenly across periods due to certain collaborative arrangements.
The amendments add a check box to the cover pages of Forms 10-K, 20-F, and 40-F to indicate whether an ICFR auditor attestation is included in the filing. While filer status is reported prominently on the cover page of annual reports for most issuers, there is currently not similarly prominent disclosure of whether an ICFR auditor attestation is provided. Such disclosure has been recommended by the GAO,
Investors can already ascertain whether an ICFR auditor attestation is included by searching within an issuer's annual report, and including additional items on the annual report cover page could marginally decrease the salience of each item already reported there. However, several commenters noted that it is currently difficult for investors to easily determine whether an issuer's filing includes an ICFR auditor attestation.
Below we consider the relative costs and benefits of reasonable alternatives to the implementation choices in the amendments.
We considered excluding all SRCs from the accelerated filer definition, consistent with the past alignment of the SRC and non-accelerated filer categories. This alternative would include SRCs that meet the revenue test, as under the adopted amendments, as well as those that have a public float of less than $250 million when initially determining SRC status. Several commenters supported this approach.
This alternative would have several benefits, such as promoting regulatory simplicity and reducing any frictions or confusion caused by issuers having to make multiple determinations of their filer type. This alternative would also expand the benefits of the amendments to additional issuers. We estimate that 268 additional issuers
However, we expect the costs of this alternative to be greater than for the amendments, primarily due to the broader application of the exemption from the ICFR auditor attestation requirement and the diminished impact of some of the mitigating factors discussed in Section IV.C.3. above on SRCs that meet the public float test rather than the revenue test. In particular, we estimated in the Proposing Release
The Proposing Release also tested whether the potential adverse impact of such a change may be mitigated by a lower empirical relevance of financial statements for the market valuation of these issuers. However, we did not find evidence that the market relies on financial statements to a lesser extent for the valuation of issuers with public float less than $250 million (as compared to issuers with a larger public float), and so this further mitigating factor that applies to low-revenue issuers likely does not apply equally to lower public float issuers.
Finally, as in Section IV.C.3., we re-examined responses to the 2008-09 Survey. When asked about the net benefits of complying with SOX Section 404, 16 percent of respondents at accelerated filers with public float of less than $250 million claimed that the costs far outweighed the benefits, in contrast to, as reported above, 30 percent of respondents at accelerated filers with revenues of less than $100 million.
We did not receive any comments on our analysis of the benefits and costs of extending non-accelerated filer status to all SRCs.
Alternatively, we considered approaches that would include or exclude additional issuer types, or apply different requirements to particular issuer types. For example, we could extend non-accelerated filer status to other issuers with between $75 million and $700 million in public float that meet the SRC revenue test but would not be eligible to be SRCs because they are majority-owned subsidiaries of non-SRCs. However, in the Proposing Release, we estimated that only one majority-owned subsidiary of a non-SRC parent would meet the same public float and revenue thresholds as the affected issuers. Given the minimal number of such issuers and the responsibilities of the parent of any such issuers with respect to the ICFR of their subsidiaries, we expect the incremental costs and benefits of this alternative to be minimal.
As discussed above, in a change from the proposal, the final amendments also exclude BDCs from the accelerated and large accelerated filer definitions under circumstances that are analogous to the exclusions for other issuers under the amendments. We estimate that approximately 28 BDCs will therefore be affected by the amendments, of which seven are EGCs and therefore already exempt from the ICFR auditor attestation requirement.
We recognize, as stated in the Proposing Release, that investors in BDCs generally may place greater significance on the financial reporting of BDCs relative to low-revenue non-investment company issuers. However, given the small number of BDCs, it is difficult to assess to what extent our findings with respect to the anticipated costs and benefits of the amendments for the broader pool of affected issuers would apply similarly to BDCs as an isolated subset of these issuers.
We also considered alternative thresholds for BDCs, given that BDCs do not report revenue on their financial statements. The amendments exclude a BDC from the accelerated and large accelerated filer definitions in Rule 12b-2 if the BDC: (1) Has a public float of $75 million or more, but less than $700 million; and (2) has investment income of less than $100 million. Table 16 below provides statistics from the Proposing Release on other income-related metrics for BDCs with between $70 million and $700 million in public float.
The commenter that supported expanding the proposed amendment to the definition of accelerated filer and large accelerated filer to exclude BDCs suggested that we exclude entities with total investment income of less than $80 million in the most recently completed fiscal year for which audited financial statements are available and either no public float or public float of less than $700 million. Of the 29 BDCs identified in the Proposing Release with a market capitalization between $75 million and $700 million, 28 had investment income of below $100 million and 26 had investment income of below $80 million. We therefore anticipate that the incremental costs and benefits of a threshold of $80 million in investment income as compared to the adopted threshold of $100 million in investment income would be limited.
We also considered whether to require or permit BDCs to provide an independent public accountant's report on internal controls, similar to the one required by RICs on Form N-CEN, since both RICs and BDCs prepare financial statements under Article 6 of Regulation S-X, in place of the auditor attestation required by SOX Section 404(b). We considered whether such a substitution should be permitted for all BDCs or only required for those BDCs that would no longer be required to provide a report under SOX Section 404(b). We do not have any data and did not receive any public comment, however, regarding the potential benefits and costs of using a Form N-CEN-type report on internal controls as compared to the auditor attestation required by SOX Section 404(b).
We also considered excluding all FPIs, which are included in the affected issuers to the extent that they meet the required thresholds and other qualifications, from the amendments. Researchers have found that the restatement rates of foreign issuers may be artificially depressed due to a lower likelihood of detection and disclosure of misstatements for these issuers.
We considered alternative levels at which a revenue threshold could be set. A $100 million dollar revenue threshold
Certain provisions of our rules and forms that would be affected by the amendments contain “collection of information” requirements within the meaning of the Paperwork Reduction Act (“PRA”). The Commission published a notice requesting comment on the collection of information requirements in the Proposing Release, and submitted the proposed amendments to the Office of Management and Budget (“OMB”) for review in accordance with the PRA.
The hours and costs associated with preparing and filing the forms and reports constitute reporting and cost burdens imposed by each collection of information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information requirement unless it displays a currently valid OMB control number. Compliance with the information collections is mandatory. Responses to the information collections are not kept confidential and there is no mandatory retention period for the information disclosed. The titles for the affected collections of information are:
• “Form 10-K” (OMB Control No. 3235-0063);
• “Form 10-Q”
The regulation and forms listed above were adopted under the Exchange Act. The regulation and forms set forth the disclosure requirements for periodic reports filed by registrants to help investors make informed investment decisions. A description of the final amendments, including the need for the information and its use, as well as a description of the likely respondents, can be found in Section II above, and a discussion of the economic effects of the final amendments can be found in Section IV above.
We estimate that the final amendments will result in approximately 527 additional issuers being classified as non-accelerated filers.
We believe that expanding the exemption from the ICFR auditor attestation requirement would reduce the PRA burden for 373 of the 527 affected issuers.
Because these issuers would no longer be subject to the ICFR auditor attestation requirement under the final amendments, they would no longer incur these costs. For purposes of the PRA, this reduction in total burden is to be allocated between a reduction in internal burden hours and a reduction in outside professional costs. Table 18, below, sets forth the percentage estimates we typically use for the burden allocation for each form.
For the $100,000 reduction in annual non-audit costs,
For PRA purposes, an issuer's internal burden is estimated in internal burden hours. We are, therefore, converting the internal portions of the non-audit costs to burden hours. These activities would mostly be performed by a number of different employees with different levels of knowledge, expertise, and responsibility. We believe these internal labor costs will be less than the $400 per hour figure we typically use for outside professionals retained by the issuer. Therefore, we use an average rate of $200 per hour to estimate an issuer's internal non-audit labor costs. Table 20, below, shows the resulting estimated reduction in internal burden hours from the elimination of the ICFR auditor attestation requirement.
As the Commission has recognized previously, changing filing deadlines neither increases nor decreases the burden hours necessary to prepare the filing because there is no change to the amount of information required in the
We believe that eliminating the requirements to provide disclosure regarding the availability of their filings and the disclosure required by Item 1B of Form 10-K and Item 4A of Form 20-F about unresolved staff comments on their periodic and/or current reports will reduce their burden hours and costs, but we do not expect that reduction to be significant. For purposes of the PRA, we estimate the reduction to be approximately one hour for each affected issuer.
In a change from the proposed amendments, the final amendments add a check box to the cover pages of their annual reports on Forms 10-K, 20-F, and 40-F for issuers to indicate that they included an ICFR auditor attestation in the filing. In addition, if the issuer is otherwise required to tag cover page disclosure data using Inline XBRL, it must also to tag the cover page check box disclosure using Inline XBRL. Issuers must already determine whether they are subject to the ICFR auditor attestation requirement, so requiring issuers to add a check box to the cover pages of their annual reports on Forms 10-K, 20-F, and 40-F, and check that box if they provide the ICFR auditor attestation, will not substantively modify existing collection of information requirements or otherwise affect the overall burden estimates associated with these forms. Therefore, we are not adjusting any burden or cost estimates in connection with the check box requirement in the final amendments
Table 22, below, shows the total estimated reduction in internal burden hours and outside professional costs for all aspects of the final amendments.
The Regulatory Flexibility Act (“RFA”)
The purpose of the amendments to the accelerated filer and large accelerated filer definitions in Rule 12b-2 is to promote capital formation by more appropriately tailoring the types of issuers that are included in the category of accelerated filers and revising the transition thresholds for accelerated and large accelerated filers. The addition of the check box to the cover pages of Forms 10-K, 20-F, and 40-F is intended to provide more prominent and easily accessible disclosure of this information for investors and market participants while imposing only minimal burdens on issuers. The need for, and objectives of, the amendments are discussed in more detail in Sections I and II above.
In the Proposing Release, we requested comment on all aspects of the
We believe that the final amendments will reduce disclosure burdens by expanding the number of registrants that will no longer qualify as accelerated or large accelerated filers, which will eliminate the ICFR auditor attestation requirement for those issuers, while maintaining investor protections.
The final amendments will affect some registrants that are small entities. The RFA defines “small entity” to mean “small business,” “small organization,” or “small governmental jurisdiction.”
We estimate that there are 1,171 issuers that file with the Commission, other than investment companies, which may be considered small entities and are potentially subject to the final amendments.
As noted above, the final amendments will reduce the number of accelerated and large accelerated filers, which will reduce the compliance burden for those issuers, some of which may be small entities, because they would no longer have to satisfy the ICFR auditor attestation requirement, comply with accelerated deadlines for filing their Exchange Act periodic reports, provide disclosure regarding the availability of their filings, or provide disclosure required by Item 1B of Form 10-K and Item 4A of Form 20-F about unresolved staff comments on their periodic and/or current reports.
The RFA directs us to consider alternatives that would accomplish our stated objectives, while minimizing any significant adverse effect on small entities. Accordingly, we considered the following alternatives:
• Establishing different compliance or reporting requirements or timetables that take into account the resources available to small entities;
• Clarifying, consolidating or simplifying compliance and reporting requirements for small entities under our rules as revised by the amendments;
• Using performance rather than design standards; and
• Exempting small entities from coverage of all or part of the amendments.
We do not believe that establishing different compliance or reporting obligations in conjunction with the final amendments is necessary. The final amendments would not impose any significant new compliance obligations. In fact, the final amendments would reduce the compliance obligations of affected issuers by increasing the number of issuers, including small entities, that are subject to the different, less burdensome, compliance and reporting obligations for non-accelerated filers. Similarly, because the final amendments would reduce the burdens for these issuers, we do not believe it is appropriate to exempt small entities from all or part of the proposed amendments.
We believe that some of the issuers that would become eligible to be non-accelerated filers under the final amendments may be smaller entities. Therefore, to the extent that any small entities would become newly eligible for non-accelerated filer status under the final amendments, their compliance and reporting requirements would be further simplified. We note in this regard that the Commission's existing disclosure requirements provide for scaled disclosure requirements and other accommodations for small entities, and the final amendments would not alter these existing accommodations.
The check box requirement should not affect small entities unless they voluntarily choose to comply with the ICFR auditor attestation requirements. Further, we note that the compliance burden associated with the check box is expected to be minimal, and establishing a different compliance requirement, providing additional clarification of the requirement, or exempting a small entity would not, therefore, have a meaningful impact on the small entity.
Finally, with respect to the use of performance rather than design standards, because the final amendments are not expected to have any significant adverse effect on small entities (and may, in fact, relieve burdens for some such entities), we do not believe it is necessary to use performance standards in connection with this rulemaking.
The rule amendments described in this release are being adopted pursuant to Sections 7, 10, 19(a), and 28 of the Securities Act, as amended, and Sections 3(b), 12, 13, 15(d), and 23(a) of the Exchange Act, as amended.
Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, the Commission amends title 17, chapter II of the Code of Federal Regulations as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78
(f) * * *
Instruction 2 to paragraph (f): A foreign private issuer is not eligible to use the requirements for smaller reporting companies unless it uses the forms and rules designated for domestic issuers and provides financial statements prepared in accordance with U.S. Generally Accepted Accounting Principles.
15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78
Sections 230.400 to 230.499 issued under secs. 6, 8, 10, 19, 48 Stat. 78, 79, 81, and 85, as amended (15 U.S.C. 77f, 77h, 77j, and 77s).
Instruction 2 to definition of “smaller reporting company”: A foreign private issuer is not eligible to use the requirements for smaller reporting companies unless it uses the forms and rules designated for domestic issuers and provides financial statements prepared in accordance with U.S. Generally Accepted Accounting Principles.
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
Sections 240.12b-1 to 240.12b-36 also issued under secs. 3, 12, 13, 15, 48 Stat. 892, as amended, 894, 895, as amended; 15 U.S.C. 78c, 78
The addition and revisions read as follows:
(iv) The issuer is not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable.
(2) * * *
(iv) The issuer is not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable.
(3) * * *
(ii) Once an issuer becomes an accelerated filer, it will remain an accelerated filer unless: The issuer determines, at the end of a fiscal year, that the aggregate worldwide market value of the voting and non-voting common equity held by its non-affiliates was less than $60 million, as of the last business day of the issuer's most recently completed second fiscal quarter; or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable. An issuer that makes either of these determinations becomes a non-accelerated filer. The issuer will not become an accelerated filer again unless it subsequently meets the conditions in paragraph (1) of this definition.
(iii) Once an issuer becomes a large accelerated filer, it will remain a large accelerated filer unless: It determines, at the end of a fiscal year, that the aggregate worldwide market value of the voting and non-voting common equity held by its non-affiliates (“aggregate worldwide market value”) was less than $560 million, as of the last business day of the issuer's most recently completed second fiscal quarter or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable. If the issuer's aggregate worldwide market value was $60 million or more, but less than $560 million, as of the last business day of the issuer's most recently completed second fiscal quarter, and it is not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable, it becomes an accelerated filer. If the issuer's aggregate worldwide market value was less than $60 million, as of the last business day of the issuer's most recently completed second fiscal quarter, or it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, it becomes a non-accelerated filer. An issuer will not
(4) For purposes of paragraphs (1), (2), and (3) of this definition only, a business development company is considered to be eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, provided that the business development company meets the requirements of the test using annual investment income under Rule 6-07.1 of Regulation S-X (17 CFR 210.6-07.1) as the measure of its “annual revenues” for purposes of the test.
Instruction 2 to definition of “smaller reporting company”: A foreign private issuer is not eligible to use the requirements for smaller reporting companies unless it uses the forms and rules designated for domestic issuers and provides financial statements prepared in accordance with U.S. Generally Accepted Accounting Principles.
15 U.S.C. 78a
Section 249.220f is also issued under secs. 3(a), 202, 208, 302, 306(a), 401(a), 401(b), 406 and 407, Pub. L. 107-204, 116 Stat. 745.
Section 249.240f is also issued under secs. 3(a), 202, 208, 302, 306(a), 401(a), 406 and 407, Pub. L. 107-204, 116 Stat. 745.
Section 249.310 is also issued under secs. 3(a), 202, 208, 302, 406 and 407, Pub. L. 107-204, 116 Stat. 745.
The text of Form 20-F does not, and this amendment will not, appear in the Code of Federal Regulations.
†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. □
The text of Form 40-F does not, and this amendment will not, appear in the Code of Federal Regulations.
†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. □
The text of Form 40-F does not, and this amendment will not, appear in the Code of Federal Regulations.
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. □
Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. □
By the Commission.
Environmental Protection Agency (EPA).
Final rule.
This action finalizes the residual risk and technology review (RTR) conducted for the Municipal Solid Waste (MSW) Landfills source category regulated under national emission standards for hazardous air pollutants (NESHAP). In addition, we are taking final action to correct and clarify regulatory provisions related to emissions during periods of startup, shutdown, and malfunction (SSM); revise wellhead operational standards and corrective action to improve effectiveness and provide compliance flexibility; reorganize rule text to incorporate provisions from the new source performance standards (NSPS) within this subpart; and add requirements for electronic reporting of performance test results. The EPA is also finalizing minor changes to the MSW Landfills NSPS and Emission Guidelines (EG) and Compliance Times for MSW Landfills. Specifically, the EPA is finalizing provisions to the most recent MSW Landfills NSPS and EG that would allow affected sources to demonstrate compliance with landfill gas control, operating, monitoring, recordkeeping, and reporting requirements by following the corresponding requirements in the MSW Landfills NESHAP. These final amendments will result in improved compliance and implementation of the rule.
This final rule is effective on March 26, 2020. The incorporation by reference (IBR) of certain publications listed in the rule is approved by the Director of the Federal Register as of March 26, 2020.
The U.S. Environmental Protection Agency (EPA) has established a docket for this action under Docket ID No. EPA-HQ-OAR-2002-0047. All documents in the docket are listed on the
For questions about this final action, contact Andrew Sheppard, Natural Resources Group, Sector Policies and Programs Division (E143-03), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-4161; fax number: (919) 541-0516; and email address:
Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding
In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at
Additional information is available on the RTR website at
Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the court) by May 25, 2020. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.
Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding
Section 112 of the CAA establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including, but not limited to, those that reduce the volume of or eliminate HAP emissions through process changes, substitution of
For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements, and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.
In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).
The EPA promulgated the MSW Landfills NESHAP on January 16, 2003 (68 FR 2227). The standards are codified at 40 CFR part 63, subpart AAAA. As promulgated in 2003 and further amended on April 20, 2006 (71 FR 20462), the NESHAP regulates HAP emissions from MSW landfills that are either major or area sources.
The NESHAP applies to MSW landfills that have accepted waste since November 8, 1987, or have additional capacity for waste deposition and are major sources, are collocated with major sources, or are area source landfills with a design capacity equal to or greater than 2.5 million megagrams (Mg) and 2.5 million cubic meters (m
The majority of HAP emissions at MSW landfills come from the continuous biodegradation of the MSW in the landfill and the formation of landfill gas (LFG) emissions. LFG emissions contain methane, carbon dioxide, and more than 100 different NMOC. The HAP emitted by MSW landfills include, but are not limited to, vinyl chloride, ethyl benzene, toluene, and benzene (61 FR 9906, March 12, 1996). The owner or operator of a landfill may control the gas by routing it to a non-enclosed flare, an enclosed combustion device, or a treatment system that processes the collected gas for subsequent sale or beneficial use.
The NESHAP regulates HAP emissions by requiring MSW landfills that exceed the size and emission thresholds to install and operate a landfill gas collection and control system (GCCS). The NESHAP achieves emission reductions through a well-designed and well-operated landfill GCCS with a control device (
In addition, the NESHAP requires timely control of bioreactors. A bioreactor is an MSW landfill or portion of the landfill where any liquid other than leachate is added to the waste mass to reach a minimum average moisture content of at least 40 percent by weight to accelerate or enhance the biodegradation of the waste. New bioreactors must install the GCCS in the bioreactor prior to initiating liquids addition, regardless of whether the landfill emissions rate equals or exceeds the estimated uncontrolled emissions rate; existing bioreactors must install the GCCS before initiating liquids addition and must begin operating the GCCS within 180 days after initiating liquids addition or within 180 days after achieving a moisture content of 40 percent by weight, whichever is later.
Based on modeled emission estimates in the 2016 NSPS/EG datasets, and supplementary searching of the Greenhouse Gas Reporting Program data (located in 40 CFR part 98, subpart HH), the EPA Landfill Methane Outreach Program, Landfill and LFG Energy Project Database, and selected permits, as of 2014, there were between 664 and 709 MSW landfills subject to the LFG collection and control requirements of the NESHAP. The exact list of facilities subject to the NESHAP is unknown because many landfills collect site-specific data for NMOC concentrations using the Tier 2 provisions allowed under the regulation to compute the NMOC annual emission rates. A list of facilities expected to be subject to the NESHAP based on modeled emissions and a default NMOC concentration of 595 parts per million by volume (ppmv)
On July 29, 2019, the EPA published a proposed rule in the
Our risk analysis indicated the risks from this source category are low for both cancer and noncancer health effects, and, therefore, we proposed that any risk reductions to further control fugitive landfill emissions would result in minimal health benefits (84 FR 36686, July 29, 2019). We also proposed that the current NESHAP provides an ample margin of safety to protect public health (84 FR 36686, July 29, 2019). In addition, pursuant to the technology review for the MSW Landfills source category, we proposed that no revisions to the current standards are necessary because, after analyzing the available options, we determined that each is either not technically feasible or the cost is not justified for the level of emission reduction achievable (84 FR 36689, July 29, 2019).
In addition to the proposed decisions resulting from the RTR described above, we proposed revisions to the NESHAP to promote consistency between MSW landfills regulations under CAA sections 111 and 112. We also proposed changes to the wellhead temperature operating standards and associated monitoring, corrective action, and reporting and recordkeeping requirements for temperature. We proposed to adjust provisions for GCCS removal to provide additional flexibility for landfill owners and operators. In addition, we proposed updates to SSM and electronic reporting requirements.
This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the MSW Landfills source category. This action also finalizes other changes to the MSW Landfills NESHAP (40 CFR part 63, subpart AAAA), including changes to promote consistency between MSW landfills regulations under CAA sections 111 and 112 and changes to the wellhead temperature operating standards, including associated monitoring, corrective action, and reporting and recordkeeping requirements for temperature. This final rule also provides additional flexibility for landfill owners and operators by adjusting the provisions for GCCS removal. In addition, SSM and electronic reporting requirements have been updated. This action also reflects several changes to the July 2019 RTR proposal in consideration of comments received during the public comment period described in section IV of this preamble.
This section introduces the final amendments to the NESHAP being promulgated pursuant to CAA section 112(f). The risks from this source category are low for both cancer and noncancer health effects and we proposed that the risks are acceptable. We received only comments in support of the proposed determination. We are finalizing our determination that risks from this source category are acceptable and that the standards provide an ample margin of safety to protect public health and prevent an adverse environmental effect. Therefore, we are not finalizing any revisions to the NESHAP based on our analyses conducted under CAA section 112(f). Section IV.A.3 of this preamble provides a summary of key comments we received regarding risk review and our responses.
The technology review identified three types of developments that could lead to additional control of HAP from MSW landfills. The three potential developments are practices to reduce HAP formation within a landfill, to collect more LFG for control or treatment, and to achieve a greater level of HAP destruction in the collected LFG. As stated in the proposal preamble (84 FR 36686-36689, July 29, 2019) none of these developments were deemed to be cost effective. We are finalizing our determination, as proposed, that there are no developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category. Therefore, we are not finalizing revisions to the MACT standards under CAA section 112(d)(6).
We are finalizing the proposed amendments to the MSW landfills standards to remove and revise provisions related to SSM. Within its 2008 decision in
We are finalizing a work practice requirement that applies whenever the GCCS is not operating. The work practice requirement appears at 40 CFR 63.1958(e) and is explained in the proposal preamble (84 FR 36695, July 29, 2019).
Further, the EPA is not setting separate standards for malfunction events. As discussed in the proposal preamble (84 FR 36694, July 29, 2019), the EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards, although the EPA has the discretion to set standards for malfunctions where feasible. Although we are not setting separate standards for malfunction events, we are setting a work practice standard for when the GCCS is not operating, which could include periods of malfunction. Whenever a landfill operator is complying with the work practice for periods when the GCCS is not operating,
We are also finalizing revisions to Table 1 of subpart AAAA, part 63, titled
The legal rationale and detailed changes for SSM periods that we are finalizing are set forth in the proposed rule (84 FR 36693, July 29, 2019). As discussed in section IV.C of this preamble, the EPA is making it clear that the semi-annual report must describe the date, time, and duration of periods during which an operating standard was exceeded, as well as when the GCCS was not operating. For more information, see the response to comments document, titled
This rule finalizes, as proposed, revisions to several NESHAP requirements that promote consistency among MSW landfills regulations developed under CAA sections 111 and 112. This rule also finalizes revisions to the 2016 NSPS (40 CFR part 60, subpart XXX) and EG (40 CFR part 60, subpart Cf) to promote consistency among MSW landfills regulations under the CAA. Most of these changes are the same as those proposed at 84 FR 36670 on July 29, 2019.
This rule also finalizes minor changes to other provisions of the NESHAP since proposal. Specific changes made since proposal are discussed in section IV.C of this preamble. Revisions to the NESHAP, NSPS, and EG include:
We are finalizing the reorganization of the NESHAP to incorporate the major compliance provisions from the MSW Landfills NSPS program directly into the NESHAP, thus, minimizing cross-referencing to other subparts and consolidating requirements between the NSPS program and the NESHAP. With the incorporation of the major compliance provisions from the 2016 NSPS (subpart XXX), we, thus, incorporated revisions to subpart XXX that were finalized in 2016. In addition, we clarified which of the reorganized provisions apply no later than 18 months after publication of the final rule.
The EPA is clarifying that subpart Cf (once implemented via a state or federal plan) supersedes subparts WWW and Cc. The final rule revises the title and applicability of subpart WWW (at 40 CFR 60.750(a)) to distinguish the applicability dates from other landfills subparts. We clarify that after the effective date of an EPA-approved state or tribal plan implementing subpart Cf, or after the effective date of a federal plan implementing subpart Cf, owners and operators of MSW landfills must comply with the approved and effective state, tribal, or federal plan implementing subpart Cf instead of subpart WWW or the state or federal plan implementing subpart Cc.
We are finalizing minor edits to the 2016 NSPS and EG regulations allowing MSW landfills affected by the NSPS and EG to demonstrate compliance with the “major compliance provisions” of the NESHAP in lieu of complying with the analogous provisions in the NSPS and EG. This change allows landfills to follow one set of operational, compliance, monitoring, and reporting provisions for pressure and temperature. The differences between the landfills subparts are identified in the memorandum titled
The EPA is finalizing the elimination of the operational standards and the corresponding corrective action for nitrogen and oxygen concentrations in the NESHAP for consistency with the 2016 NSPS and EG (subparts XXX and Cf). The EPA concluded that nitrogen and oxygen concentrations are not, by themselves, effective indicators of proper operation of the LFG collection system (see 81 FR 59346, August 29, 2016).
The EPA is finalizing an increase of temperature standard to 145 degrees Fahrenheit (°F). The EPA is finalizing the increased wellhead temperature operating standard in the NESHAP to reduce the burden on regulated entities and delegated state, local, and tribal agencies. This change is expected to reduce the number of requests and burden associated with submitting and reviewing the requests for higher operating values (HOVs) for temperature, as well as reduce the frequency of corrective actions for exceeding the temperature limit. This change provides landfill owners and operators greater flexibility and autonomy with regards to wellhead monitoring and operations.
The EPA is finalizing the elimination of the requirements for corrective action for nitrogen and oxygen concentrations in the NESHAP to maintain consistency with the requirements in the 2016 NSPS and EG (subparts XXX and Cf). The operating standard for nitrogen and oxygen has already been eliminated in those rules. In the NESHAP, the EPA is finalizing changes to the corrective action procedures to address positive pressure and elevated temperature to provide flexibility to owners or operators in determining the appropriate remedy, as well as the timeline for implementing the remedy. The changes to the timeline and the process for correcting for positive pressure and elevated temperature make the NESHAP requirements consistent with the current requirements of the NSPS and EG, except that the requirements for corrective action procedures being proposed in the NESHAP are tied to the exceedance of the 145 °F standard, instead of the 131 °F standard that still applies in the NSPS and EG.
The EPA is finalizing the addition of enhanced wellhead monitoring and visual inspection requirements for any landfill with wellhead temperature exceeding 145 °F. Enhanced monitoring in the final rule involves weekly observations for subsurface oxidation events (SOE), as well as weekly monitoring of wellhead temperature, carbon monoxide (CO), oxygen, and methane using an analyzer that meets all quality assurance and quality control requirements for EPA Methods 10, 3C, or 18. Enhanced monitoring begins 7 days after the first reading exceeding 145 °F is recorded and continues until the measured wellhead operating temperature is 145 °F or less, or an HOV is approved. The proposed rule required a landfill to continue weekly enhanced monitoring until an HOV was approved or until the LFG temperature at the wellhead reached less than or equal to 62.8 degrees Celsius (°C) (145 °F). In the final rule, the EPA is allowing monthly CO monitoring if the wellhead has CO readings below 100 ppmv for four consecutive weeks. If the CO level exceeds 100 ppmv again, the landfill must return to weekly monitoring (see section IV.D of this preamble). Consistent with our proposal, the final rule requires enhanced monitoring data to be submitted in the semi-annual report and maintained as records. The EPA is finalizing the enhanced monitoring requirements as proposed except for the following changes:
• The EPA is removing the proposed requirement for an independent laboratory analysis of each CO measurement (see section IV.D of this preamble).
• The EPA is finalizing the proposed 24-hour electronic report for any well with highly elevated temperature (76.7 °C or 170 °F) and CO readings (40 CFR 63.1981(k)). In the final rule, the EPA reduced the CO threshold for the 24-hour electronic report from 1,500 ppmv to 1,000 ppmv (see section IV.D of this preamble). The EPA adjusted the corresponding corrective action for wells that have any wellhead temperature reading of 170 °F or above and CO reading of 1,000 ppmv. The report is not required for landfills that have an HOV approved by the Administrator.
• The EPA is finalizing the proposed downwell monitoring. However, in the final rule, downwell monitoring is conducted annually, instead of weekly. Additionally, the annual downwell monitoring is only required for wellheads that have any temperature reading of 165 °F or above (see section IV.D of this preamble).
The EPA is finalizing as proposed the added flexibility to the NESHAP for determining when it is appropriate to cap, remove, or decommission a portion of the GCCS (40 CFR 63.1957(b)). The NESHAP requires three criteria to be met to remove controls: (1) The landfill is closed, (2) the calculated NMOC emission rate at the landfill is less than 50 Mg/yr on three successive test dates, and (3) the GCCS has operated for at least 15 years. In this final rule, we updated the third criterion to allow the landfill owner or operator to choose between the 15 years of GCCS operation or demonstrate that the GCCS will be unable to operate for 15 years due to declining gas flows.
To clarify the implementation concerns, the EPA is finalizing as proposed the phrase, “. . . at all cover penetrations” to the regulatory text of the NESHAP (40 CFR 63.1958(d)), consistent with this phrase in the 2016 NSPS and EG (subparts XXX and Cf). We are also adding a definition of cover penetration as proposed. At 40 CFR 63.1958(d), we are clarifying the surface monitoring provisions by requiring monitoring at any “cover penetrations” rather than at “any openings.” And we are clarifying that the landfill owner or operator must determine the latitude and longitude coordinates “of each exceedance.”
The EPA is requiring owners and operators of new or modified MSW landfills to electronically submit required performance test reports, NMOC Emission Rate Reports, Bioreactor 40-percent moisture reports, and semi-annual reports through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI) (40 CFR 63.1981(l)). The final rule requires that performance test results be submitted using the Electronic Reporting Tool (ERT). Alternatively, MSW landfills may submit an electronic file consistent with the extensible markup language (XML) schema listed on the EPA's ERT website. For more details, see the Electronic Reporting section of the proposal preamble (84 FR 36693, July 29, 2019). For NMOC Emission Rate Reports, Bioreactor 40-percent moisture reports, and semi-annual reports, the final rule requires that owners and operators use the appropriate spreadsheet template/forms to submit information to CEDRI when it becomes available on the CEDRI website (
In 2016, the EPA finalized its review of the 1996 NSPS (40 CFR part 60, subpart WWW) and made revisions (40 CFR part 60, subpart XXX) to simplify and streamline implementation of the rule. Note that some of the revisions were proposed as early as 2002 and 2006. With the incorporation of compliance provisions from the NSPS into the NESHAP as part of this rulemaking, we are likewise finalizing the following provisions from the NSPS:
• Allowing the use of portable gas composition analyzers to monitor the oxygen level at a wellhead (40 CFR 63.1961(a)).
• Requiring owners and operators to report more precise locational data for each surface emissions exceedance to provide a more robust and long-term record of GCCS performance and more easily locate and correct breaches in the landfill cover (40 CFR 63.1961(f)).
• Refining the criteria for updating a design plan by requiring landfill owners or operators to submit an updated design plan for approval based on the following criteria: (1) Within 90 days of
• Clarifying that in addition to use as a fuel for stationary combustion devices, use of treated LFG also includes other uses such as the production of vehicle fuel, production of high-Btu gas for pipeline injection, or use as a raw material in a chemical manufacturing process (40 CFR 63.1959(b)).
• Standardizing the terms “control system” and “collection and control system” in the NESHAP in order to use consistent terminology throughout the regulatory text.
• Exempting owners/operators of boilers and process heaters with design capacities of 44 megawatts or greater from the requirement to conduct an initial performance test since large boilers and process heaters consistently achieve the required level of control (67 FR 36478, May 23, 2002).
• Removing the term “combustion” from the requirement to monitor temperature of enclosed combustors to clarify that temperature could be monitored at another location, as long as the monitored temperature relates to proper operation of the enclosed combustor (71 FR 53276, September 8, 2006).
• Refining definitions to ensure consistent use across federal landfills regulations (40 CFR 63.1990) of the terms: Treated landfill gas, Treatment system, Modification, Household waste, and Segregated yard waste.
The EPA is maintaining the current approach to closed areas so that landfills subject to both the 2016 NSPS and EG and the NESHAP have a streamlined set of requirements to follow. The 2016 NSPS and EG allow landfill owners or operators to model NMOC emissions or take actual measurements of NMOC emissions at physically separated, closed areas of open landfills. The EPA has not expanded the term “closed area” to include areas that are not physically separated (
The EPA expanded the list of definitions in the NESHAP to create a list that improves consistency between the 2016 NSPS, 1996 NSPS, and the NESHAP. The changes fall into the following categories:
• The 2003 MSW Landfills NESHAP included eight definitions. Five of these definitions remain the same. The EPA made changes to two of the original defined phrases. One of these phrases also has had a definition change. The original definition for “deviation” has been refined to reflect the updated SSM requirements.
• The EPA added a new definition for “cover penetration” based on public comments.
• To address public comments about definition consistency, the EPA included an additional 32 definitions that correspond to definitions in NSPS subparts XXX, WWW, or both. The EPA made minor updates to reflect current regulation references.
The revisions to the MACT standards being promulgated in this action are effective on March 26, 2020.
The compliance date for existing sources is January 16, 2004.
New sources must comply by January 16, 2003, or upon startup, whichever is later.
The compliance dates remain the same as proposed. The EPA is allowing facilities up to 18 months after March 26, 2020, to begin complying with the final rule. Affected MSW landfills must continue to comply with the existing requirements until they meet the new requirements.
For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. For all comments not discussed in this preamble, please see the comment summaries and the EPA's Response to Comments document, which are available in the docket.
Pursuant to CAA section 112(f), the EPA conducted a residual risk review and presented the results of this review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the July 29, 2019, proposed rule for 40 CFR part 63, subpart AAAA (84 FR 36670). The results of the risk assessment are presented briefly in Table 2 of this preamble. More detail is in the residual risk technical support document,
The results of the chronic baseline inhalation cancer risk assessment indicate that, based on estimates of current actual, allowable, and whole facility emissions under the NESHAP, the maximum individual risk posed by the source category is 10-in-1 million. The total estimated cancer incidence based on actual emission levels is 0.04
We weighed all human health risk factors in our risk acceptability determination, and we proposed that the residual risks from the MSW Landfills source category are acceptable. We then considered whether the NESHAP provides an ample margin of safety to protect public health, and whether more stringent standards were necessary to prevent an adverse environmental effect, by taking into consideration costs, energy, safety, and other relevant factors. In determining whether the standards provide an ample margin of safety to protect public health, we examined the same risk factors that we investigated for our acceptability determination and also considered the costs, technological feasibility, and other relevant factors related to emissions control options that might reduce risk (or potential risks) associated with emissions from the source category. Our risk analysis indicated the risks from this source category are low for both cancer and noncancer health effects, and, therefore, any additional emissions reductions would result in minimal health benefits or reductions in risk. We note that fugitive landfill emissions result in 84 percent of the cancer incidence for this source category. Based upon results of the risk analysis and our evaluation of the technical feasibility and cost of the option(s) to reduce landfill fugitive emissions, we proposed that the current NESHAP provides an ample margin of safety to protect the public health. We also proposed, based on the results of our environmental screening assessment, that more stringent standards are not necessary to prevent an adverse environmental effect.
Since proposal, neither the risk assessment nor our determinations regarding risk acceptability, ample margin of safety, or adverse environmental effects have changed.
We received comments that were generally supportive of the proposed residual risk review and our determination that no revisions were warranted under CAA section 112(f)(2) for the MSW Landfills source category. Commenters stated that the EPA's residual risk review approach was sufficiently conservative in its assumptions relating to facility emission profiles and supported the EPA's conclusion that the residual risk is acceptable and provides an ample margin of safety. One commenter stated that the modeling includes conservative features that is consistent with the National Ambient Air Quality Standards and conforms to many state programs and that EPA appropriately considered maximum exposed individuals, multi-pathway assessments, as well as specific populations by census blocks near actual facilities. The commenter also stated the EPA's emission factor data used for the proposed NESHAP is comprehensive considering the number of facilities referenced and the number of analytes assessed. However, another commenter expressed concern regarding the EPA's use of emission factors calculated using 2008 AP-42,
We disagree with the comment that the use of draft AP-42 emission factors introduces confusion or sets precedent for using these factors in other regulations. In the development of the risk analysis, we documented the rationale for using the emission factors from 2008 AP-42 Chapter 2.4 in the docketed memorandum,
After review of these comments, we determined that no changes needed to be made to the underlying risk assessment methodology. The comments and our specific responses can be found in the response to comments document titled
We evaluated all of the comments on the EPA's risk review and determined that no changes to the review are needed. For the reasons explained in the proposed rule, we proposed that the risks from the MSW Landfills source category are acceptable, and the current standards provide an ample margin of safety to protect public health and prevent an adverse environmental
Pursuant to CAA section 112(d)(6), we proposed to conclude that no revisions to the current NESHAP are necessary (section IV.C of the proposal preamble 84 FR 36686). In conducting the review, we identified developments in work practices and technologies to reduce HAP formation, collect additional HAP, and destroy additional HAP from MSW landfills. We ruled out developments in waste diversion programs, which can reduce HAP formation, as technically infeasible, because programs to ban or recycle wastes instead of placing the wastes in the landfill are not typically under the control of landfill owners or operators. We analyzed the costs and emission reductions associated with earlier gas collection strategies, including a lower NMOC threshold and shortening the time in which a GCCS is required to expand into new areas of the landfill. Based on these analyses, we concluded that these options are not cost effective for HAP. We also analyzed the cost and emission reductions associated with destroying additional HAP in higher efficiency flares, and based on these analyses, we concluded that these options are not cost effective for HAP.
We have not changed any aspect of the technology review since the July 29, 2019, proposal for the MSW Landfills source category.
The comments received by the EPA on the technology review were generally supportive, with only one commenter challenging the EPA's findings regarding GCCS installation lag times. One commenter agreed that the EPA's findings regarding mandated source separation, earlier LFG collection, criteria, and timeframe for removing GCCS, early installation of landfill cover systems, enclosed flares, thermal oxidizers, energy recovery projects, and use of biocovers were infeasible, not cost-effective, or did not result in emissions reductions. Another commenter noted the limited innovation in HAP-reducing technologies and requested increased government funding for research in this area. One commenter challenged the EPA's determination that earlier gas collection, via shorter expansion lag times, is not economically feasible and asked the EPA to reevaluate its determination.
The EPA has not revised the technology review for the NESHAP to analyze the costs of shorter expansion lag times for certain landfills. The EPA agrees with the commenter that shorter lag times are commercially available. However, the installation of well components to achieve these shorter lag times requires site-specific analysis. For example, the timing of well installation is affected by waste placement patterns and annual acceptance rates. The EPA explored shorter lag times as part of the review for the 2016 NSPS and EG and received several comments related to site-specific costs and safety concerns associated with reduced lag times, urging the EPA to retain flexibility in any lag-time adjustments. See 79 FR 41807 (July 17, 2014) and 80 FR 52121 (August 27, 2015) for more details. The EPA has not received any comments suggesting that the cost and safety concerns brought forth as part of the 2016 rulemaking have changed, and as a result, no changes to the lag times are being finalized.
As explained in the proposal preamble (84 FR 36686, July 29, 2019), we conducted a technology review to identify developments in practices, processes, and control technologies that may warrant revisions to the current NESHAP. We identified three types of developments that could lead to additional control of HAP from MSW landfills, but we determined that there are no cost-effective developments in practices, processes, or control technologies to warrant revisions to the standards. We also evaluated the public comments on the EPA's technology review and determined that no changes to the review are needed. More information concerning our technology review is in the memorandum titled
We proposed amendments to the NESHAP to remove and revise provisions related to SSM that are not consistent with the requirement that the standards apply at all times. More information concerning the elimination of SSM provisions is in the preamble to the proposed rule (84 FR 36693).
We are finalizing the SSM provisions as proposed (84 FR 36693, July 29, 2019) with the minor changes described in section IV.C.3 of this preamble.
We received two comments related to our proposed revisions to the SSM provisions. The first commenter agreed that the NESHAP must apply at all times and with the approach of applying a work practice standard under CAA section 112(h) during periods of SSM. The second commenter requested that the EPA clarify that SSM events be reported as stated in the proposal preamble (84 FR 36696, July 29, 2019). A summary of the SSM comments on the proposal and the EPA's responses to those comments is available in the response to comments document titled
The first commenter agreed that the work practice requirements of proposed 40 CFR 63.1958(e) are appropriate and consistent with a well-designed and operated LFG collection system. However, the commenter objected to the EPA's proposed preamble statements and rule revisions that specify that compliance with these provisions during SSM does not necessarily constitute compliance with the NESHAP. The commenter stated that these provisions are inconsistent with prior EPA decisions about appropriate landfill operation and are not compelled by the
Landfill emissions are produced by a continuous biological process that cannot be stopped or restarted. Therefore, the primary concern related to SSM is with malfunction of the landfill GCCS and associated monitoring equipment, not with the
Another commenter requested the EPA clarify that SSM events be reported as stated in the proposal preamble (84 FR 36696, July 29, 2019) in order to evaluate whether the general duty to minimize emissions is being met. The commenter stated that while the preamble stated that reporting will be required (84 FR 36696, July 29, 2019), the rule only requires records of SSM events.
The EPA proposed to add recordkeeping requirements for startup and shutdown to 40 CFR 63.1983(c) (84 FR 36696, July 29, 2019). Because 40 CFR 63.1958(e) specifies a different standard for periods when the GCCS is not operating under normal conditions (which would include periods of startup, shutdown, and maintenance or repair), we noted that it will be important to know when such startup and shutdown periods begin and end in order to determine compliance with the appropriate standard. Thus, we proposed language in 40 CFR 63.1983(c)(6) to require that a landfill owner or operator report the date, time, and duration of each startup and shutdown period. However, the paragraphs we cited in the preamble and revised in the rule require only the records of such events.
The EPA agrees with the commenter that recordkeeping and reporting for SSM events needs to be clarified in the final rule. Thus, the EPA revised 40 CFR 63.1981(h)(1) to make it clear that the semi-annual report must describe the date, time, and duration of periods during which an operating standard was exceeded, as well as when the GCCS was not operating. The semi-annual report in 40 CFR 63.1981(h) does not require separate reporting of SSM events, but every exceedance, including when operating standards are exceeded and when the GCCS is not operating, must be reported including during SSM.
We evaluated the comments on the EPA's proposed amendments to the SSM provisions. For the reasons explained in the proposed rule, we determined that the proposed amendments appropriately remove and revise provisions related to SSM not consistent with the requirement that the standards apply at all times. More information concerning the amendments we are finalizing for SSM is in the preamble to the proposed rule (84 FR 36693, July 29, 2019). Therefore, we are finalizing our approach for the SSM provisions as proposed with the clarifications described in section IV.C.3 of this preamble.
Given concerns with fire risks from elevated temperatures, and the fact that parameters other than temperature can be indicators of a SOE, we proposed enhanced wellhead monitoring and visual inspections for subsurface oxidation events (40 CFR 63.1961(a)), and in some cases more frequent reporting (40 CFR 63.1981(k)), for any landfill with wellhead temperature exceeding 145 °F. The proposed enhanced monitoring included weekly monitoring of CO, oxygen, and methane. For each CO measurement, the EPA proposed to require an independent laboratory analysis (84 FR 36691, July 29, 2019). As part of enhanced monitoring, the EPA proposed weekly temperature monitoring every 10 vertical feet down the well (downwell monitoring).
Several commenters expressed concerns with the requirement for independent laboratory CO testing. One commenter observed that laboratory testing is expensive, and three commenters stated that requiring laboratory testing would extend the response time and not provide timely information that can help the landfill owner or operator improve compliance. One commenter also noted several concerns with the logistics of independent laboratory analysis, including concerns with the proposed test methods and sample transportation.
The EPA agrees with commenters that independent laboratory analysis could present logistical challenges and potentially increase costs. Shipping passivated canisters or multi-layer foil gas sampling bags could require specialized shipping and could delay results that could improve operation of the GCCS. Therefore, based on public comments, the EPA is removing the requirement for an independent laboratory to analyze each CO measurement. In the final rule, landfill owners or operators have the option to collect the sample and conduct analysis on-site, using purchased or rented equipment that meets the requirements of EPA Method 10. This could generate results quicker, enabling the owner or operator to adjust the GCCS in a more timely manner. Conducting the analysis on-site would also prevent the need to package and ship the canisters or bags, thus, saving shipping costs and eliminating the logistical concerns of shipping the samples.
One commenter expressed concerns with the indefinite term of the enhanced monitoring. The commenter advised that if CO readings are less than 1,500 ppmv, monitoring should not be required indefinitely, but instead cease after 3 consecutive months. The commenter observed that this approach is consistent with the requirements of the consent decrees in the docket and with historical HOV demonstrations.
Regarding when to stop enhanced CO monitoring, the EPA agrees with commenters because the weekly enhanced monitoring is not intended to continue indefinitely. In the proposal, there were two means to stop enhanced
One commenter expressed concern with the proposed 1,500 ppmv threshold for CO, asserting that 1,000 ppmv would be a more reasonable upper limit for detecting or preventing landfill fires. The EPA agrees with the commenter. The EPA reexamined the MSW Landfills consent decrees cited in the proposed rule; documents from CalRecycle, the Federal Emergency Management Agency (FEMA), the U.S. Army Corps of Engineers, and the Solid Waste Association of North America. These documents (see Docket ID No. EPA-HQ-OAR-2002-0047) all cite a 1,000 ppmv CO concentration as an indication of an underground landfill fire, in combination with other factors. Additionally, a guidance document from the Ohio EPA for subsurface heating events refers to the CO concentration cited in the FEMA and CalRecycle documents. Two of the consent decrees, Forward and Central Maui, require 24-hour electronic notification to the delegated authority for any CO reading of 1,000 ppmv or above. For these reasons, the EPA is reducing the reporting threshold for CO from 1,500 ppmv to 1,000 ppmv in the final rule.
One commenter expressed support for the downwell temperature reading requirement. However, another commenter warned that the downwell monitoring may not be achievable or yield meaningful data, noting that installation of thermocouples to measure well temperature may not be possible on a well that is already constructed due to shifting in the well as settlement occurs. The commenter also noted that if wells have been raised with solid pipe, or the boring log does not provide accurate as-built information, the data may not be meaningful. Another commenter requested that the EPA eliminate the downwell temperature monitoring requirement. The commenter observed that the EPA claims that the proposed enhanced monitoring for well temperature is intended to facilitate the detection of a subsurface fire, yet the solid waste industry has long recognized that subsurface fires occur near the surface, require oxygen, are visually recognizable, and are addressed with known remedies. The commenter asserted that weekly downwell measurements could be counter-productive and inconsistent with the GCCS best management practices or challenging to implement.
The EPA reexamined the consent decrees and supporting documents and agrees with the commenters that weekly downwell monitoring could be potentially burdensome to implement. Requirements for conducting downwell temperature monitoring is in only the referenced consent decrees and not prescribed in the other supporting documents. Although the 2009 Ohio EPA best management practices document
Because the EPA has changed the frequency of CO monitoring and downwell temperature monitoring, the EPA has modified the requirement to include a well-specific summary trend analysis in the semi-annual report (40 CFR 63.1981(h)(8)(ii)) to remove the downwell temperature and recognizes that CO monitoring may occur on a monthly or weekly basis depending on the level at the well. Additionally, the EPA has removed the requirement to submit a 24-hour high temperature report if the well is subject to an approved HOV for temperature (40 CFR 63.1981(k)).
The EPA has also adjusted the enhanced monitoring provisions at 40 CFR 63.1961(a)(5) to remove the upper bound limitation of 170 °F. Enhanced monitoring should continue until both this temperature level and a CO level of 1,000 ppmv have been reached, at which point the provisions 40 CFR 63.1960(a)(4)(i)(D) and 63.1981(k) apply. Consistent with the proposed preamble (80 FR 36692, July 29, 2019), high temperatures in combination with high levels of CO are considered a positive indication of an active underground fire. The EPA has adjusted the requirements for the records and reports associated with these enhanced monitoring data to remove the upper bound limitation.
Commenters expressed concerns with the EPA's proposed delegation of authority language (40 CFR 63.1985(c)). The EPA proposed at 40 CFR 63.1985(c) that the EPA will not delegate “approval of alternatives to the standards” in 40 CFR 63.1955-63.1962, which the commenters interpreted to include authority to approve alternatives to monitoring (
The EPA disagrees that proposed 40 CFR 63.1985(c) includes authority to approve HOVs. The EPA did not intend to preclude state or local agencies from approving or disapproving HOVs and other alternatives that are needed to reflect a source's site-specific conditions. The final NESHAP directly incorporates the major compliance provisions of the NSPS rules (subparts WWW and XXX). Consistent with the NSPS rules, the final NESHAP allows owners or operators to establish an HOV for temperature at a particular well (40 CFR 63.1958(c)(1)). The owner or operator must submit a request for an HOV, along with supporting data, to the Administrator for approval. Also consistent with the NSPS rules, the collection and control system design plan may include for Administrator approval collection and control systems that include any alternatives to the operational standards, test methods, procedures, compliance measures, monitoring, recordkeeping, or reporting provisions. The Administrator or delegated authority would review and approve the HOV or design plan.
The EPA recognizes that proposed 40 CFR 63.1985(c) does not reflect its intent and may have caused confusion. In 40 CFR 63.1985(c), the EPA retains authority to approve “alternatives to the standards” in 40 CFR 63.1955-63.1962. Commenters incorrectly interpreted that the term “alternative emission standards” includes authority to approve HOVs. The term “emission standards” is defined in 40 CFR 60.21(f) as “a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, establishing an allowance system, or prescribing equipment specifications for control of air pollution emissions.” The EPA intends the use of the phrase “alternative emission standards” to refer to the “Standards” for MSW landfill emissions in 40 CFR 63.1955-63.1962. The EPA does not intend “alternative emission standards” to include alternatives for wellhead monitoring in 40 CFR 63.1958. The EPA also does not intend to retain authority to review and approve gas collection and control design plans.
Thus, based on public comments, the EPA is revising 40 CFR 63.1985(c) to reflect the EPA's intent, which is not to preclude states or other delegated authorities from approving HOVs and design plans. The EPA will delegate authority to approve HOVs and design plans. However, consistent with the NSPS, the final rule retains the EPA's authority to approve alternative methods for determining the NMOC concentration in 40 CFR 63.1959(a)(3) and a site-specific methane generation rate constant in 40 CFR 63.1959(a)(4).
Based on public comments, the EPA made several technical corrections and clarifications to make clear the requirements of the regulation.
• 40 CFR 60.38f(k) and 60.767(j). Clarified that if an MSW landfill owner or operator is complying with the major compliance provisions of the NESHAP, then the owner or operator must follow the corrective action and the corresponding timeline reporting requirements in the NESHAP (40 CFR 63.1981(j)) in lieu of the corresponding timeline reporting requirements of the EG or NSPS, respectively.
• 40 CFR 60.39f(e)(6). Corrected a typographical error. Removed the word “you” and retained “owner or operator.”
• 40 CFR 60.750. Clarified that an affected MSW landfill continues to comply with 40 CFR part 60, subpart WWW until it becomes subject to the more stringent requirements in an approved and effective state or federal plan that implements 40 CFR part 60, subpart Cf of this part, or until it modifies or reconstructs after July 17, 2014, and, thus, becomes subject to subpart XXX.
• 40 CFR 60.768(e)(6). Corrected a typographical error. Removed the word “you” and retained “owner or operator.”
• 40 CFR 63.1947(a)(2). Corrected typographical error. Refer to 40 CFR 63.1982(c) and (d) instead of 40 CFR 63.1980(g) and (h) for moisture calculations.
• 40 CFR 63.1955(a). Clarified that alternatives to the operational standards, test methods, procedures, compliance measures, monitoring, recordkeeping, or reporting provisions that have already been approved under 40 CFR part 60, subpart XXX can be used to comply with the NESHAP.
• 40 CFR 63.1960(a)(4)(i). Corrected typographical error. Removed the phrase, “for the purpose of identifying whether excess air infiltration exists” because the phrase does not apply to temperature.
• 40 CFR 63.1960(a)(4)(i)(D). Clarified that if the LFG temperature measured at either the wellhead or at any point in the well is greater than or equal to 76.7 °C (170 °F) and the CO concentration measured is greater than or equal to 1,000 ppmv, the owner or operator must complete the corrective action(s) for the wellhead temperature standard (62.8 °C or 145 °F) within 15 days.
• 40 CFR 63.1960(e). Corrected reference from 40 CFR 63.1958(c) to 40 CFR 63.1958(e) to refer to SSM requirements.
• 40 CFR 63.1961(a)(5). Clarified that landfills with previously approved HOVs for temperature under various landfills subparts are not required to conduct enhanced monitoring.
• 40 CFR 63.1961(a)(5)(vii). Corrected reference from paragraph (a)(4) to (a)(5) to reference enhanced monitoring requirements.
• 40 CFR 63.1981(h)(1), (h)(1)(i), and (h)(1)(ii). Clarified that the semi-annual report must include the date, time, and duration of “each exceedance” of the applicable monitoring parameters, not “each failure.”
• 40 CFR 63.1983(e)(2)(i). Corrected paragraph numbering to be (i), (ii), and (iii) instead of (i), (i), and (ii) and corrected cross-reference to the enhanced monitoring provisions in 40 CFR 63.1961(a)(5).
• 40 CFR 63.1990. Definition of controlled landfill. Clarified that the landfill is a controlled landfill when a collection and control system design plan is submitted in compliance with 40 CFR 60.752(b)(2)(i) or in compliance with 40 CFR 63.1959(b)(2)(i), regardless of whether that submittal is within 18 months after date of publication of the final rule in the
• Table 1 to subpart AAAA of part 63. Expanded to indicate which initial notifications apply before and which notifications apply after the date 18 months after publication of the final rule in the
We anticipate that approximately 738 active or closed MSW landfills in the United States and territories will be affected by these final amendments in the year 2023. This number is based on all landfills that accepted waste after November 8, 1987, that have a design capacity of at least 2.5 million Mg and 2.5 million m
The final amendments are expected to have a minimal impact on air quality. While these amendments do not require stricter control requirements or work practice standards on landfills to comply with the proposed amendments, some landfills may find that the adjustments made to the oxygen, nitrogen, and temperature wellhead standards finalized herein provide enough operational flexibility to install, expand, and operate additional voluntary GCCS, which could reduce emissions. The other proposed revisions that affect testing, monitoring, recordkeeping, and reporting will ensure that the GCCS equipment continues to perform as expected and provide reliable data from each facility to be reported for compliance.
The EPA has estimated $0 compliance costs for all new and existing sources affected by this final rule, beyond what is already required under the existing NESHAP and what is already included in the previously approved information collection activities contained in the existing NESHAP (Office of Management and Budget (OMB) control number 2060-0505), as described in section VI.C of this preamble. Furthermore, landfills accepting waste after November 8, 1987, must comply with the similar, yet, more stringent requirements of the 2016 NSPS or a plan implementing 40 CFR part 60, subpart Cf. Many of the changes in these amendments better align the NESHAP with the requirements of the NSPS and plans implementing subpart Cf. These changes simplify compliance, which in turn could reduce costs. For example, elimination of the wellhead operating standards for oxygen and nitrogen to match requirements in the NSPS will reduce the number of requests for HOVs, which in turn could decrease compliance costs.
The EPA maintains that final changes to enhanced monitoring for wellhead temperature are not estimated to incur a cost. The EPA is finalizing a temperature standard that is 14 °F higher than the standard that currently exists in the baseline regulations in order to provide additional flexibility to controlled landfills. However, ultimately, the requirement in the final NESHAP remains to install and operate a well-designed and well-operated GCCS. The EPA is not requiring enhanced monitoring from all controlled landfills, but this option is being made available as a compliance flexibility to the population of wells that do not already have an approved HOV and for which temperature cannot be adjusted downward through routine GCCS adjustments. Based on feedback provided in public comments, over 6,000 HOV requests have been submitted and reviewed by regulatory agencies, and the enhanced monitoring requirements would not apply to any of the HOV requests that have received approval. Furthermore, the concern that the enhanced monitoring requirements would continue in perpetuity is unsubstantiated. First, landfills have up to 7 days to adjust the well to achieve a lower temperature before the enhanced monitoring requirements are triggered (40 CFR 63.1961(a)(5)(vii)). Second, the enhanced monitoring can stop once the well temperature drops back to 145 °F or less. The EPA did not receive any comments on the number of wells that are operating above 145 °F without an approved HOV, which would have helped the EPA quantify how many wells would be affected and the corresponding costs. Additionally, the EPA did not receive any data on how long the wells without an approved HOV typically exceed 145 °F. Given insufficient data on the number and length of each temperature exceedance to make an estimate, the EPA has not quantified any cost impacts for the enhanced monitoring.
The EPA also contends that many of the parameters required in the enhanced monitoring are also parameters that are required to obtain an approval of an HOV request under the baseline regulations and so these costs are not an incremental cost that is not otherwise happening outside of the NESHAP amendments. For example, the Ohio EPA already requires 6 months of historical data, narrative discussion of the visual evidence of fire, and CO measurements using appropriate laboratory techniques.
The EPA also maintains that removal of the requirement to prepare an SSM plan and removal of the associated recordkeeping and reporting requirements will not result in additional costs for new or modified facilities, but instead result in a cost savings. Owners or operators will not incur the cost of preparing an SSM plan. To meet their obligation under 40 CFR 63.1955(c) to minimize emissions during collection or control system downtime, owners or operators are expected to rely on existing standard operating procedures and safety practices. The EPA expects that some landfills may incorporate automated controls that would shut down the gas mover system and valves in the event of detection of a collection or control system malfunction. Such systems are expected to have existing corresponding written or automated standard operating procedures and safety practices.
The recordkeeping and reporting requirements will not result in additional costs for new or modified facilities. The final work practice requirements mandate a shutdown of the gas mover system and all valves within the collection and control system within 1 hour of the collection or control system not operating and then require repair efforts to proceed in a way that keeps downtime to a minimum (40 CFR 63.1958(e)(1)(i)-(ii)). A landfill demonstrates compliance with these requirements via recordkeeping as specified in 40 CFR 63.1983(c)(6)-(7). The work practice requirement to record and report all instances of downtime will not result in an increased recordkeeping and reporting burden as compared to the 2003 NESHAP. Via cross-reference to the 1996 NSPS (40 CFR part 60, subpart WWW) to (40 CFR 63.1955(a)(1)), the 2003 NESHAP already required landfill owners to keep continuous records of the indication of flow to the control device, report periods when the control device was not operating for a period exceeding 1 hour. The records required by existing regulations serve as the records of system downtime.
Note that this work practice itself does not add incremental cost to new or modified landfills subject to the proposed regulation because this requirement already appears in the
Given that the costs for these enhanced monitoring requirements cannot be quantified, in addition to the fact that there are some cost savings previously documented to offset these costs,
The economic impact analysis is designed to inform decision makers about the potential economic consequences of a regulatory action. Because there are no costs associated with the final rule, no economic impacts are anticipated.
As stated in section V.B of this preamble, we were unable to quantify the specific emissions reductions associated with adjustments made to the oxygen and nitrogen wellhead operating standards, although this change has the potential to reduce emissions. Any reduction in HAP emissions would be expected to provide health benefits in the form of improved air quality and less exposure to potentially harmful chemicals.
To examine the potential for any environmental justice issues that might be associated with the MSW Landfills source category, we performed a demographic analysis, which is an assessment of risk to individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. In the analysis, we evaluated the distribution of HAP-related cancer and noncancer risk from the source category across different demographic groups within the populations living near facilities.
The results of the demographic analysis are summarized in Table 3 of this preamble. These results, for various demographic groups, are based on the estimated risk from actual emissions levels for the population living within 50 km of the facilities.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are summarized in section IV.A of this preamble and are further documented in the report,
In accordance with the requirements of 1 CFR 51.5, we are finalizing regulatory text in 40 CFR 63.1961(a)(2)(ii) and (2)(iii)(B) that includes the IBR of ASTM D6522-11—Standard Test Method for Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers, and Process Heaters Using Portable Analyzers (Approved December 1, 2011), as an alternative for determining oxygen for wellhead standards in 40 CFR 63.1961(a)(2). For this test method, a gas sample is continuously extracted from a duct and conveyed to a portable analyzer for determination of nitrogen oxides, CO, and oxygen gas concentrations using electrochemical cells. Analyzer design specifications, performance specifications, and test procedures are provided to ensure reliable data. This method is an alternative to EPA methods and is consistent with the methods already allowed under the 2016 NSPS and EG (subparts XXX and Cf). The ASTM standards are available from the American Society for Testing and Materials, 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 19428-2959. See
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 OMB for review.
This action is considered an Executive Order 13771 deregulatory action. This final rule provides meaningful burden reduction by removing the requirements for SSM plans and periodic SSM reports, removing the oxygen and nitrogen wellhead operating standards, increasing the temperature wellhead standard, revising the corrective action timeline and procedures, providing flexibility for landfills to remove controls, and adding electronic reporting.
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0505. The only burden associated with the final rule is limited to affected sources becoming familiar with the changes in the final rule. The burden for respondents to review rule requirements each year is already accounted for in the previously approved information collection activities contained in the existing regulations (40 CFR part 63, subpart AAAA), which were assigned OMB control number 2060-0505. Additionally, changes to 40 CFR part 60, subpart WWW, subpart XXX, and subpart Cf only add clarifying language for affected sources and provide alternatives for any deviations from the respective standards. These changes would not increase any burden for affected sources.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. This action is projected to affect 738 MSW landfills, and approximately 60 of these facilities are owned by a small entity. The small entities subject to the requirements of this final rule may include private small business and small governmental jurisdictions that own or operate landfills, but the cost for complying with the final amendments is expected to be $0. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. While state, local, or tribal governments own and operate landfills subject to these final amendments, the impacts resulting from this regulatory action are far below the applicable threshold.
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 has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The database used to estimate impacts of these final amendments identified one tribe, the Salt River Pima-Maricopa Indian Community, that owns three landfills potentially subject to the NESHAP. Two of these landfills are already controlling emissions—the Salt River Landfill and the Tri Cities Landfill. Although the permits for these landfills indicate they are subject to this subpart, these final changes are not expected to increase the costs. The other landfill, North Center Street Landfill, is not estimated to install controls under the NESHAP. The EPA offered to consult with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes in the process of developing this regulation to permit them to have meaningful and timely input into its development. A copy of the letter offering consultation is in the docket for this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. The EPA has decided to use voluntary consensus standards ASTM D6522-11, “Standard Test Method for the Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers, and Process Heaters Using Portable Analyzers,” as an acceptable alternative to EPA Method 3A when used at the wellhead before combustion. It is advisable to know the flammability and check the lower explosive limit of the flue gas constituents prior to sampling, in order to avoid undesired ignition of the gas. The results of ASTM D6522-11 may be used to determine nitrogen oxides and CO emission concentrations from natural gas combustion at stationary sources. This test method may also be used to monitor emissions during short-term emission tests or periodically in order to optimize process operation for nitrogen oxides and CO control. The EPA's review is documented in the memorandum,
In this rule, the EPA is finalizing regulatory text for 40 CFR part 63, subpart AAAA that includes IBR in accordance with requirements of 1 CFR 51.5. Specifically, the EPA is incorporating by reference ASTM D6522-11. See section VI of this preamble for information on the availability of this material.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (58 FR 7629, February 16, 1994).
Our analysis of the demographics of the population with estimated risks greater than 1-in-1 million indicates potential disparities in risks between demographic groups, including the African American, Hispanic or Latino, Over 25 Without a High School Diploma, and Below the Poverty Level groups. In addition, the population living within 50 km of MSW landfills has a higher percentage of minority, lower income, and lower education people when compared to the nationwide percentages of those groups. However, acknowledging these potential disparities, the risks for the source category were determined to be acceptable, and any emissions reductions from the final revisions will benefit these groups the most.
The documentation for this decision is contained in section IV.B and C of this preamble, and the technical report,
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).
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the EPA amends 40 CFR parts 60 and 63 as follows:
42 U.S.C. 7401
For approval, a state plan must include provisions for the operational standards in this section (as well as the provisions in §§ 60.36f and 60.37f), or the operational standards in § 63.1958 of this chapter (as well as the provisions in §§ 63.1960 of this chapter and 63.1961 of this chapter), or both as alternative means of compliance, for an MSW landfill with a gas collection and control system used to comply with the provisions of § 60.33f(b) and (c). Once the owner or operator begins to comply with the provisions of § 63.1958 of this chapter, the owner or operator must continue to operate the collection and control device according to those provisions and cannot return to the provisions of this section. Each owner or operator of an MSW landfill with a gas collection and control system used to comply with the provisions of § 60.33f(b) and (c) must:
For approval, a state plan must include the compliance provisions in this section (as well as the provisions in §§ 60.34f and 60.37f), or the compliance provisions in § 63.1960 of this chapter (as well as the provisions in §§ 63.1958 of this chapter and 63.1961 of this chapter), or both as alternative means of compliance, for an MSW landfill with a gas collection and control system used to comply with the provisions of § 60.33f(b) and (c). Once the owner or operator begins to comply with the provisions of § 63.1960 of this chapter, the owner or operator must continue to operate the collection and control device according to those provisions and cannot return to the provisions of this section.
(a) * * *
(3) * * *
(ii) If corrective actions cannot be fully implemented within 60 days following the positive pressure or elevated temperature measurement for which the root cause analysis was required, the owner or operator must also conduct a corrective action analysis and develop an implementation schedule to complete the corrective action(s) as soon as practicable, but no more than 120 days following the measurement of landfill gas temperature greater than 55 degrees Celsius (131 degrees Fahrenheit) or positive pressure. The owner or operator must submit the items listed in § 60.38f(h)(7) as part of the next annual report. The owner or operator must keep records according to § 60.39f(e)(4).
For approval, a state plan must include the monitoring provisions in this section, (as well as the provisions in §§ 60.34f and 60.36f) except as provided in § 60.38f(d)(2), or the monitoring provisions in § 63.1961 of this chapter (as well as the provisions in §§ 63.1958 of this chapter and 63.1960 of this chapter), or both as alternative means of compliance, for an MSW landfill with a gas collection and control system used to comply with the provisions of § 60.33f(b) and (c). Once the owner or operator begins to comply with the provisions of § 63.1961 of this chapter, the owner or operator must continue to operate the collection and control device according to those provisions and cannot return to the provisions of this section.
(h)
(7) For any corrective action analysis for which corrective actions are required in § 60.36f(a)(3) or (5) and that take more than 60 days to correct the exceedance, the root cause analysis conducted, including a description of the recommended corrective action(s), the date for corrective action(s) already completed following the positive pressure or elevated temperature reading, and, for action(s) not already completed, a schedule for implementation, including proposed commencement and completion dates.
(k)
(n) Each owner or operator that chooses to comply with the provisions in §§ 63.1958, 63.1960, and 63.1961 of this chapter, as allowed in §§ 60.34f, 60.36f, and 60.37f, must submit the 24-hour high temperature report according to § 63.1981(k) of this chapter.
(e) Except as provided in § 60.38f(d)(2), each owner or operator subject to the provisions of this subpart must keep for at least 5 years up-to-date, readily accessible records of the items in paragraphs (e)(1) through (5) of this section. Each owner or operator that chooses to comply with the provisions in §§ 63.1958, 63.1960, and 63.1961 of this chapter, as allowed in §§ 60.34f, 60.36f, and 60.37f, must keep the records in paragraph (e)(6) of this section and must keep records according to § 63.1983(e)(1) through (5) of this chapter in lieu of paragraphs (e)(1) through (5) of this section.
(6) Each owner or operator that chooses to comply with the provisions in §§ 63.1958, 63.1960, and 63.1961 of this chapter, as allowed in §§ 60.34f, 60.36f, and 60.37f, must keep records of the date upon which the owner or operator started complying with the provisions in §§ 63.1958, 63.1960, and 63.1961.
(a) The provisions of this subpart apply to each municipal solid waste landfill that commenced construction, reconstruction, or modification on or after May 30, 1991, but before July 18, 2014.
(d) An affected municipal solid waste landfill must continue to comply with this subpart until it:
(1) Becomes subject to the more stringent requirements in an approved and effective state or federal plan that implements subpart Cf of this part, or
(2) Modifies or reconstructs after July 17, 2014, and thus becomes subject to subpart XXX of this part.
(b) * * *
(2) * * *
(iv)
(a) * * *
(5) * * *
(ii) If corrective actions cannot be fully implemented within 60 days following the positive pressure or elevated temperature measurement for which the root cause analysis was required, the owner or operator must also conduct a corrective action analysis and develop an implementation schedule to complete the corrective action(s) as soon as practicable, but no more than 120 days following the measurement of landfill gas temperature greater than 55 degrees Celsius (131 degrees Fahrenheit) or positive pressure. The owner or operator must submit the items listed in § 60.767(g)(7) as part of the next annual report. The owner or operator must keep records according to § 60.768(e)(4).
(g)
(7) For any corrective action analysis for which corrective actions are required in § 60.765(a)(3) or (5) and that take more than 60 days to correct the exceedance, the root cause analysis conducted, including a description of the recommended corrective action(s), the date for corrective action(s) already completed following the positive pressure or elevated temperature reading, and, for action(s) not already completed, a schedule for implementation, including proposed commencement and completion dates.
(j)
(m) Each owner or operator that chooses to comply with the provisions in §§ 63.1958, 63.1960, and 63.1961, as allowed at § 60.762(b)(2)(iv), must submit the 24-hour high temperature report according to § 63.1981(k) of this chapter.
(e) Except as provided in § 60.767(c)(2), each owner or operator subject to the provisions of this subpart must keep for at least 5 years up-to-date, readily accessible records of the items in paragraphs (e)(1) through (5) of this section. Each owner or operator that chooses to comply with the provisions in §§ 63.1958, 63.1960, and 63.1961 of this chapter, as allowed at § 60.762(b)(2)(iv), must keep the records in paragraph (e)(6) of this section and must keep records according to §§ 63.1983(e)(1) through (5) of this chapter in lieu of paragraphs (e)(1) through (5) of this section.
(6) Each owner or operator that chooses to comply with the provisions in §§ 63.1958, 63.1960, and 63.1961 of this chapter, as allowed at § 60.762(b)(2)(iv), must keep records of the date upon which the owner or operator started complying with the provisions in §§ 63.1958, 63.1960, and 63.1961.
42 U.S.C. 7401
(h) * * *
(94) ASTM D6522-11 Standard Test Method for Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas-Fired Reciprocating Engines, Combustion Turbines, Boilers, and Process Heaters Using Portable Analyzers, Approved December 1, 2011, IBR approved for § 63.1961(a) and table 3 to subpart YYYY.
This subpart establishes national emission standards for hazardous air pollutants for existing and new municipal solid waste (MSW) landfills.
(a) Before September 28, 2021, all landfills described in § 63.1935 must meet the requirements of 40 CFR part 60, subpart WWW, or an approved state or federal plan that implements 40 CFR part 60, subpart Cc, and requires timely control of bioreactors and additional reporting requirements. Landfills must also meet the startup, shutdown, and malfunction (SSM) requirements of the general provisions as specified in Table 1 to Subpart AAAA of this part and must demonstrate compliance with the operating conditions by parameter monitoring results that are within the specified ranges. Specifically, landfills must meet the following requirements of this subpart that apply before September 28, 2021, as set out in: §§ 63.1955(a), 63.1955(b), 63.1965(a), 63.1965(c), 63.1975, 63.1981(a), 63.1981(b), and 63.1982, and the definitions of “Controlled landfill” and “Deviation” in § 63.1990.
(b) Beginning no later than September 27, 2021, all landfills described in § 63.1935 must meet the requirements of this subpart. A landfill may choose to meet the requirements of this subpart rather than the requirements identified in § 63.1930(a) at any time before September 27, 2021. The requirements of this subpart apply at all times, including during periods of SSM, and the SSM requirements of the General Provisions of this part do not apply.
You are subject to this subpart if you meet the criteria in paragraph (a) or (b) of this section.
(a) You are subject to this subpart if you own or operate an MSW landfill that has accepted waste since November 8, 1987, or has additional capacity for waste deposition and meets any one of the three criteria in paragraphs (a)(1) through (3) of this section:
(1) Your MSW landfill is a major source as defined in § 63.2 of subpart A.
(2) Your MSW landfill is collocated with a major source as defined in § 63.2 of subpart A.
(3) Your MSW landfill is an area source landfill that has a design capacity equal to or greater than 2.5 million megagrams (Mg) and 2.5 million cubic meters (m
(b) You are subject to this subpart if you own or operate an MSW landfill that has accepted waste since November 8, 1987, or has additional capacity for waste deposition, that includes a bioreactor, as defined in § 63.1990, and that meets any one of the criteria in paragraphs (b)(1) through (3) of this section:
(1) Your MSW landfill is a major source as defined in § 63.2 of subpart A.
(2) Your MSW landfill is collocated with a major source as defined in § 63.2 of subpart A.
(3) Your MSW landfill is an area source landfill that has a design capacity equal to or greater than 2.5 million Mg and 2.5 million m
(a) An affected source of this subpart is an MSW landfill, as defined in § 63.1990, that meets the criteria in § 63.1935(a) or (b). The affected source includes the entire disposal facility in a contiguous geographic space where household waste is placed in or on land, including any portion of the MSW landfill operated as a bioreactor.
(b) A new affected source of this subpart is an affected source that commenced construction or reconstruction after November 7, 2000. An affected source is reconstructed if it meets the definition of reconstruction in § 63.2 of subpart A.
(c) An affected source of this subpart is existing if it is not new.
(a) If your landfill is a new affected source, you must comply with this subpart by January 16, 2003, or at the time you begin operating, whichever is later.
(b) If your landfill is an existing affected source, you must comply with this subpart by January 16, 2004.
You must comply with this subpart by the dates specified in § 63.1945(a) or (b). If you own or operate a bioreactor located at a landfill that is not permanently closed as of January 16, 2003, and has a design capacity equal to or greater than 2.5 million Mg and 2.5 million m
(a) If your bioreactor is at a new affected source, then you must meet the requirements in paragraphs (a)(1) and (2) of this section:
(1) Install the gas collection and control system for the bioreactor before initiating liquids addition.
(2) Begin operating the gas collection and control system within 180 days after initiating liquids addition or within 180 days after achieving a moisture content of 40 percent by weight, whichever is later. If you choose
(b) If your bioreactor is at an existing affected source, then you must install and begin operating the gas collection and control system for the bioreactor by January 17, 2006, or by the date your bioreactor is required to install a gas collection and control system under 40 CFR part 60, subpart WWW; a federal plan; or an EPA-approved and effective state plan or tribal plan that applies to your landfill, whichever is earlier.
(c) If your bioreactor is at an existing affected source and you do not initiate liquids addition to your bioreactor until later than January 17, 2006, then you must meet the requirements in paragraphs (c)(1) and (2) of this section:
(1) Install the gas collection and control system for the bioreactor before initiating liquids addition.
(2) Begin operating the gas collection and control system within 180 days after initiating liquids addition or within 180 days after achieving a moisture content of 40 percent by weight, whichever is later. If you choose to begin gas collection and control system operation 180 days after achieving a 40-percent moisture content instead of 180 days after liquids addition, use the procedures in § 63.1980(e) and (f) to determine when the bioreactor moisture content reaches 40 percent.
You are no longer required to comply with the requirements of this subpart when your landfill meets the collection and control system removal criteria in § 63.1957(b).
If you own or operate a landfill that includes a bioreactor, you are no longer required to comply with the requirements of this subpart for the bioreactor provided you meet the conditions of either paragraph (a) or (b) of this section.
(a) Your affected source meets the control system removal criteria in § 63.1950 or the bioreactor meets the criteria for a nonproductive area of the landfill in § 63.1962(a)(3)(ii).
(b) The bioreactor portion of the landfill is a closed landfill as defined in § 63.1990, you have permanently ceased adding liquids to the bioreactor, and you have not added liquids to the bioreactor for at least 1 year. A closure report for the bioreactor must be submitted to the Administrator as provided in § 63.1981(g).
(a) Before September 28, 2021, if alternatives to the operational standards, test methods, procedures, compliance measures, monitoring, recordkeeping, or reporting provisions have already been approved under 40 CFR part 60, subpart WWW; subpart XXX; a federal plan; or an EPA-approved and effective state or tribal plan, these alternatives can be used to comply with this subpart, except that all affected sources must comply with the SSM requirements in subpart A of this part as specified in Table 1 of this subpart and all affected sources must submit compliance reports every 6 months as specified in § 63.1981(h), including information on all deviations that occurred during the 6-month reporting period. Deviations for continuous emission monitors or numerical continuous parameter monitors must be determined using a 3-hour monitoring block average. Beginning no later than September 28, 2021, the collection and control system design plan may include for approval collection and control systems that include any alternatives to the operational standards, test methods, procedures, compliance measures, monitoring, recordkeeping, or reporting provisions, as provided in § 63.1981(d)(2).
(b) If you own or operate a bioreactor that is located at an MSW landfill that is not permanently closed and has a design capacity equal to or greater than 2.5 million Mg and 2.5 million m
(1) You must comply with this subpart starting on the date you are required to install the gas collection and control system.
(2) You must extend the collection and control system into each new cell or area of the bioreactor prior to initiating liquids addition in that area.
(c) At all times, beginning no later than September 27, 2021, the owner or operator must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. The general duty to minimize emissions does not require the owner or operator to make any further efforts to reduce emissions if the requirements of this subpart have been achieved. Determination of whether a source is operating in compliance with operation and maintenance requirements will be based on information available to the Administrator which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source.
(a)
(b)
(1) The landfill is a closed landfill (as defined in § 63.1990). A closure report must be submitted to the Administrator as provided in § 63.1981(f);
(2) The gas collection and control system has been in operation a minimum of 15 years or the landfill owner or operator demonstrates that the gas collection and control system will be unable to operate for 15 years due to declining gas flow; and
(3) Following the procedures specified in § 63.1959(c), the calculated NMOC emission rate at the landfill is less than 50 Mg/yr on three successive test dates. The test dates must be no less than 90 days apart, and no more than 180 days apart.
Each owner or operator of an MSW landfill with a gas collection and control system used to comply with the provisions of § 63.1957 must:
(a) Operate the collection system such that gas is collected from each area, cell, or group of cells in the MSW landfill in which solid waste has been in place for:
(1) 5 years or more if active; or
(2) 2 years or more if closed or at final grade;
(b) Operate the collection system with negative pressure at each wellhead except under the following conditions:
(1) A fire or increased well temperature. The owner or operator must record instances when positive pressure occurs in efforts to avoid a fire. These records must be submitted with the semi-annual reports as provided in § 63.1981(h);
(2) Use of a geomembrane or synthetic cover. The owner or operator must develop acceptable pressure limits in the design plan;
(3) A decommissioned well. A well may experience a static positive pressure after shut down to accommodate for declining flows. All design changes must be approved by the Administrator as specified in § 63.1981(d)(2);
(c) Operate each interior wellhead in the collection system as specified in § 60.753(c), except:
(1) Beginning no later than September 27, 2021, operate each interior wellhead in the collection system with a landfill gas temperature less than 62.8 degrees Celsius (145 degrees Fahrenheit).
(2) The owner or operator may establish a higher operating temperature value at a particular well. A higher operating value demonstration must be submitted to the Administrator for approval and must include supporting data demonstrating that the elevated parameter neither causes fires nor significantly inhibits anaerobic decomposition by killing methanogens. The demonstration must satisfy both criteria in order to be approved (
(d)(1) Operate the collection system so that the methane concentration is less than 500 parts per million (ppm) above background at the surface of the landfill. To determine if this level is exceeded, the owner or operator must conduct surface testing around the perimeter of the collection area and along a pattern that traverses the landfill at no more than 30-meter intervals and where visual observations indicate elevated concentrations of landfill gas, such as distressed vegetation and cracks or seeps in the cover. The owner or operator may establish an alternative traversing pattern that ensures equivalent coverage. A surface monitoring design plan must be developed that includes a topographical map with the monitoring route and the rationale for any site-specific deviations from the 30-meter intervals. Areas with steep slopes or other dangerous areas may be excluded from the surface testing.
(2) Beginning no later than September 27, 2021, the owner or operator must:
(i) Conduct surface testing using an organic vapor analyzer, flame ionization detector, or other portable monitor meeting the specifications provided in § 63.1960(d).
(ii) Conduct surface testing at all cover penetrations. Thus, the owner or operator must monitor any cover penetrations that are within an area of the landfill where waste has been placed and a gas collection system is required.
(iii) Determine the latitude and longitude coordinates of each exceedance using an instrument with an accuracy of at least 4 meters. The coordinates must be in decimal degrees with at least five decimal places.
(e) Operate the system as specified in § 60.753(e) of this chapter, except:
(1) Beginning no later than September 27, 2021, operate the system in accordance to § 63.1955(c) such that all collected gases are vented to a control system designed and operated in compliance with § 63.1959(b)(2)(iii). In the event the collection or control system is not operating:
(i) The gas mover system must be shut down and all valves in the collection and control system contributing to venting of the gas to the atmosphere must be closed within 1 hour of the collection or control system not operating; and
(ii) Efforts to repair the collection or control system must be initiated and completed in a manner such that downtime is kept to a minimum, and the collection and control system must be returned to operation.
(2) [Reserved]
(f) Operate the control system at all times when the collected gas is routed to the system.
(g) If monitoring demonstrates that the operational requirements in paragraph (b), (c), or (d) of this section are not met, corrective action must be taken as specified in § 63.1960(a)(3) and (5) or (c). If corrective actions are taken as specified in § 63.1960, the monitored exceedance is not a deviation of the operational requirements in this section.
(a) Calculate the NMOC emission rate using the procedures specified in § 60.754(a) of this chapter, except:
(1)
(i)(A) Equation 1 must be used if the actual year-to-year solid waste acceptance rate is known.
(B) The mass of nondegradable solid waste may be subtracted from the total mass of solid waste in a particular section of the landfill when calculating the value for M
(ii)(A) Equation 2 must be used if the actual year-to-year solid waste acceptance rate is unknown.
(B) The mass of nondegradable solid waste may be subtracted from the total mass of solid waste in a particular section of the landfill when calculating the value of R, if documentation of the nature and amount of such wastes is maintained.
(2)
(i) If the NMOC emission rate calculated in paragraph (a)(1) of this section is less than 50 Mg/yr, then the landfill owner or operator must submit an NMOC emission rate report according to § 63.1981(c) and must recalculate the NMOC mass emission rate annually as required under paragraph (b) of this section.
(ii) If the calculated NMOC emission rate as calculated in paragraph (a)(1) of this section is equal to or greater than 50 Mg/yr, then the landfill owner must either:
(A) Submit a gas collection and control system design plan within 1 year as specified in § 63.1981(d) and install and operate a gas collection and control system within 30 months of the first annual report in which the NMOC emission rate equals or exceeds 50 Mg/yr, according to paragraphs (b)(2)(ii) and (iii) of this section;
(B) Determine a site-specific NMOC concentration and recalculate the NMOC emission rate using the Tier 2 procedures provided in paragraph (a)(3) of this section; or
(C) Determine a site-specific methane generation rate constant and recalculate the NMOC emission rate using the Tier 3 procedures provided in paragraph (a)(4) of this section.
(3)
(i) Within 60 days after the date of completing each performance test (as defined in § 63.7 of subpart A), the owner or operator must submit the results according to § 63.1981(i).
(ii) The landfill owner or operator must recalculate the NMOC mass emission rate using Equation 1 or Equation 2 provided in paragraph (a)(1)(i) or (ii) of this section and use the average site-specific NMOC concentration from the collected samples instead of the default value provided in paragraph (a)(1) of this section.
(iii) If the resulting NMOC mass emission rate is less than 50 Mg/yr, then the owner or operator must submit a periodic estimate of NMOC emissions in an NMOC emission rate report according to § 63.1981(c) and must recalculate the NMOC mass emission rate annually as required under paragraph (b) of this section. The site-specific NMOC concentration must be retested every 5 years using the methods specified in this section.
(iv) If the NMOC mass emission rate as calculated using the Tier 2 site-specific NMOC concentration is equal to or greater than 50 Mg/yr, the landfill owner or operator must either:
(A) Submit a gas collection and control system design plan within 1 year as specified in § 63.1981(d) and install and operate a gas collection and control system within 30 months according to paragraphs (b)(2)(ii) and (iii) of this section; or
(B) Determine a site-specific methane generation rate constant and recalculate the NMOC emission rate using the site-specific methane generation rate using the Tier 3 procedures specified in paragraph (a)(4) of this section.
(4)
(i) If the NMOC mass emission rate as calculated using the Tier 2 site-specific NMOC concentration and Tier 3 site-specific methane generation rate is equal to or greater than 50 Mg/yr, the owner or operator must:
(A) Submit a gas collection and control system design plan within 1 year as specified in § 63.1981(e) and install and operate a gas collection and control system within 30 months of the first annual report in which the NMOC emission rate equals or exceeds 50 Mg/yr, according to paragraphs (b)(2)(ii) and (iii) of this section.
(B) [Reserved]
(ii) If the NMOC mass emission rate is less than 50 Mg/yr, then the owner or operator must recalculate the NMOC mass emission rate annually using Equation 1 or Equation 2 in paragraph (a)(1) of this section and using the site-specific Tier 2 NMOC concentration and Tier 3 methane generation rate constant and submit a periodic NMOC emission rate report as provided in § 63.1981(c).
(5)
(b) Each owner or operator of an affected source having a design capacity equal to or greater than 2.5 million Mg and 2.5 million m
(1) If the calculated NMOC emission rate is less than 50 Mg/yr, the owner or operator must:
(i) Submit an annual NMOC emission rate emission report to the Administrator, except as provided for in § 63.1981(c)(1)(ii); and
(ii) Recalculate the NMOC emission rate annually using the procedures specified in paragraph (a)(1) of this section until such time as the calculated NMOC emission rate is equal to or greater than 50 Mg/yr, or the landfill is closed.
(A) If the calculated NMOC emission rate, upon initial calculation or annual recalculation required in paragraph (b) of this section, is equal to or greater than 50 Mg/yr, the owner or operator must either: comply with paragraph (b)(2) of this section or calculate NMOC emissions using the next higher tier in paragraph (a) of this section.
(B) If the landfill is permanently closed, a closure report must be submitted to the Administrator as provided for in § 63.1981(f).
(2) If the calculated NMOC emission rate is equal to or greater than 50 Mg/yr using Tier 1, 2, or 3 procedures, the owner or operator must either:
(i) Submit a collection and control system design plan prepared by a professional engineer to the Administrator within 1 year as specified in § 63.1981(d) or calculate NMOC emissions using the next higher tier in paragraph (a) of this section. The collection and control system must meet the requirements in paragraphs (b)(2)(ii) and (iii) of this section.
(ii) Collection system. Install and start up a collection and control system that captures the gas generated within the landfill as required by paragraphs (b)(2)(ii)(B) or (C) and (b)(2)(iii) of this section within 30 months after:
(A) The first annual report in which the NMOC emission rate equals or exceeds 50 Mg/yr, unless Tier 2 or Tier 3 sampling demonstrates that the NMOC emission rate is less than 50 Mg.
(B) An active collection system must:
(
(
(
(
(C) A passive collection system must:
(
(
(iii) Control system. Route all the collected gas to a control system that complies with the requirements in either paragraph (b)(2)(iii)(A), (B), or (C) of this section.
(A) A non-enclosed flare designed and operated in accordance with the parameters established in § 63.11(b) except as noted in paragraph (f) of this section; or
(B) A control system designed and operated to reduce NMOC by 98 weight-percent, or, when an enclosed combustion device is used for control, to either reduce NMOC by 98 weight-percent or reduce the outlet NMOC concentration to less than 20 ppmv, dry basis as hexane at 3-percent oxygen. The reduction efficiency or ppmv must be established by an initial performance test to be completed no later than 180 days after the initial startup of the approved control system using the test methods specified in paragraph (e) of this section. The performance test is not required for boilers and process heaters with design heat input capacities equal to or greater than 44 megawatts that burn landfill gas for compliance with this subpart.
(
(
(C) A treatment system that processes the collected gas for subsequent sale or beneficial use such as fuel for combustion, production of vehicle fuel, production of high-British thermal unit (Btu) gas for pipeline injection, or use as a raw material in a chemical manufacturing process. Venting of treated landfill gas to the ambient air is not allowed. If the treated landfill gas cannot be routed for subsequent sale or beneficial use, then the treated landfill gas must be controlled according to either paragraph (b)(2)(iii)(A) or (B) of this section.
(D) All emissions from any atmospheric vent from the gas treatment system are subject to the requirements of paragraph (b)(2)(iii)(A) or (B) of this section. For purposes of this subpart, atmospheric vents located on the condensate storage tank are not part of the treatment system and are exempt from the requirements of paragraph (b)(2)(iii)(A) or (B) of this section.
(c) After the installation and startup of a collection and control system in compliance with this subpart, the owner or operator must calculate the NMOC emission rate for purposes of determining when the system can be capped, removed, or decommissioned as provided in § 63.1957(b)(3), using Equation 3:
(1) The flow rate of landfill gas, Q
(2) The average NMOC concentration, C
(3) The owner or operator may use another method to determine landfill gas flow rate and NMOC concentration if the method has been approved by the Administrator.
(i) Within 60 days after the date of completing each performance test (as defined in § 63.7), the owner or operator must submit the results of the performance test, including any associated fuel analyses, according to § 63.1981(i).
(ii) [Reserved]
(d) For the performance test required in § 63.1959(b)(2)(iii)(B), EPA Method 25 or 25C (EPA Method 25C of appendix A-7 to part 60 of this chapter may be used at the inlet only) of appendix A of this part must be used to determine compliance with the 98 weight-percent efficiency or the 20- ppmv outlet concentration level, unless another method to demonstrate compliance has been approved by the Administrator as provided by § 63.1981(d)(2). EPA Method 3, 3A, or 3C of appendix A-7 to part 60 must be used to determine oxygen for correcting the NMOC concentration as hexane to 3 percent. In cases where the outlet concentration is less than 50 ppm NMOC as carbon (8 ppm NMOC as hexane), EPA Method 25A should be used in place of EPA Method 25. EPA Method 18 may be used in conjunction with EPA Method 25A on a limited basis (compound specific,
(e) For the performance test required in § 63.1959(b)(2)(iii)(A), the net heating value of the combusted landfill gas as determined in § 63.11(b)(6)(ii) is calculated from the concentration of methane in the landfill gas as measured by EPA Method 3C of appendix A to part 60 of this chapter. A minimum of three 30-minute EPA Method 3C samples are determined. The measurement of other organic components, hydrogen, and carbon monoxide is not applicable. EPA Method 3C may be used to determine the landfill gas molecular weight for calculating the flare gas exit velocity under § 63.11(b)(7) of subpart A.
(1) Within 60 days after the date of completing each performance test (as defined in § 63.7), the owner or operator must submit the results of the performance tests, including any associated fuel analyses, required by § 63.1959(c) or (e) according to § 63.1981(i).
(2) [Reserved]
(f) The performance tests required in §§ 63.1959(b)(2)(iii)(A) and (B), must be conducted under such conditions as the Administrator specifies to the owner or operator based on representative performance of the affected source for the period being tested. Representative conditions exclude periods of startup and shutdown unless specified by the Administrator. The owner or operator may not conduct performance tests during periods of malfunction. The owner or operator must record the process information that is necessary to document operating conditions during the test and include in such record an explanation to support that such conditions represent normal operation. Upon request, the owner or operator shall make available to the Administrator such records as may be necessary to determine the conditions of performance tests.
(a) Except as provided in § 63.1981(d)(2), the specified methods in paragraphs (a)(1) through (6) of this section must be used to determine whether the gas collection system is in compliance with § 63.1959(b)(2)(ii).
(1) For the purposes of calculating the maximum expected gas generation flow rate from the landfill to determine compliance with § 63.1959(b)(2)(ii)(C)(1), either Equation 5 or Equation 6 must be used. The owner or operator may use another method to determine the maximum gas generation flow rate, if the method has been approved by the Administrator. The methane generation rate constant (k) and methane generation potential (L
(i) For sites with unknown year-to-year solid waste acceptance rate:
(ii) For sites with known year-to-year solid waste acceptance rate:
(iii) If a collection and control system has been installed, actual flow data may be used to project the maximum expected gas generation flow rate instead of, or in conjunction with, Equation 5 or Equation 6 in paragraphs (a)(1)(i) and (ii) of this section. If the landfill is still accepting waste, the actual measured flow data will not equal the maximum expected gas generation rate, so calculations using Equation 5 or Equation 6 in paragraph (a)(1)(i) or (ii) of this section or other methods must be used to predict the maximum expected gas generation rate over the intended period of use of the gas control system equipment.
(2) For the purposes of determining sufficient density of gas collectors for compliance with § 63.1959(b)(2)(ii)(B)(
(3) For the purpose of demonstrating whether the gas collection system flow rate is sufficient to determine compliance with § 63.1959(b)(2)(ii)(B)(
(i) Beginning no later than September 27, 2021, if a positive pressure exists, action must be initiated to correct the exceedance within 5 days, except for the three conditions allowed under § 63.1958(b).
(A) If negative pressure cannot be achieved without excess air infiltration within 15 days of the first measurement of positive pressure, the owner or operator must conduct a root cause analysis and correct the exceedance as soon as practicable, but no later than 60 days after positive pressure was first measured. The owner or operator must keep records according to § 63.1983(e)(3).
(B) If corrective actions cannot be fully implemented within 60 days following the positive pressure measurement for which the root cause analysis was required, the owner or operator must also conduct a corrective action analysis and develop an implementation schedule to complete the corrective action(s) as soon as practicable, but no more than 120 days following the positive pressure measurement. The owner or operator must submit the items listed in § 63.1981(h)(7) as part of the next semi-annual report. The owner or operator must keep records according to § 63.1983(e)(5).
(C) If corrective action is expected to take longer than 120 days to complete after the initial exceedance, the owner or operator must submit the root cause analysis, corrective action analysis, and corresponding implementation timeline to the Administrator, according to § 63.1981(j). The owner or operator must keep records according to § 63.1983(e)(5).
(ii) [Reserved]
(4) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the temperature and nitrogen or oxygen operational standards in introductory paragraph § 63.1958(c), for the purpose of identifying whether excess air infiltration into the landfill is occurring, the owner or operator must follow the procedures as specified in § 60.755(a)(5) of this chapter, except:
(i) Once an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard for temperature in § 63.1958(c)(1), the owner or operator must monitor each well monthly for temperature. If a well exceeds the operating parameter for temperature as provided in § 63.1958(c)(1), action must be initiated to correct the exceedance within 5 days. Any attempted corrective measure must not cause exceedances of other operational or performance standards.
(A) If a landfill gas temperature less than or equal to 62.8 degrees Celsius (145 degrees Fahrenheit) cannot be achieved within 15 days of the first measurement of landfill gas temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit), the owner or operator must conduct a root cause analysis and correct the exceedance as soon as practicable, but no later than 60 days after a landfill gas temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit) was first measured. The owner or operator must keep records according to § 63.1983(e)(3).
(B) If corrective actions cannot be fully implemented within 60 days following the temperature measurement for which the root cause analysis was required, the owner or operator must also conduct a corrective action analysis and develop an implementation schedule to complete the corrective action(s) as soon as practicable, but no more than 120 days following the measurement of landfill gas temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit). The owner or operator must submit the items listed in § 63.1981(h)(7) as part of the next semi-annual report. The owner or operator must keep records according to § 63.1983(e)(4).
(C) If corrective action is expected to take longer than 120 days to complete after the initial exceedance, the owner or operator must submit the root cause analysis, corrective action analysis, and corresponding implementation timeline to the Administrator, according to § 63.1981(h)(7) and (j). The owner or operator must keep records according to § 63.1983(e)(5).
(D) If a landfill gas temperature measured at either the wellhead or at any point in the well is greater than or equal to 76.7 degrees Celsius (170 degrees Fahrenheit) and the carbon monoxide concentration measured, according to the procedures in § 63.1961(a)(5)(vi) is greater than or equal to 1,000 ppmv the corrective action(s) for the wellhead temperature standard (62.8 degrees Celsius or 145 degrees Fahrenheit) must be completed within 15 days.
(5) An owner or operator seeking to demonstrate compliance with
(b) For purposes of compliance with § 63.1958(a), each owner or operator of a controlled landfill must place each well or design component as specified in the approved design plan as provided in § 63.1981(b). Each well must be installed no later than 60 days after the date on which the initial solid waste has been in place for a period of:
(1) 5 years or more if active; or
(2) 2 years or more if closed or at final grade.
(c) The following procedures must be used for compliance with the surface methane operational standard as provided in § 63.1958(d).
(1) After installation and startup of the gas collection system, the owner or operator must monitor surface concentrations of methane along the entire perimeter of the collection area and along a pattern that traverses the landfill at 30 meter intervals (or a site-specific established spacing) for each collection area on a quarterly basis using an organic vapor analyzer, flame ionization detector, or other portable monitor meeting the specifications provided in paragraph (d) of this section.
(2) The background concentration must be determined by moving the probe inlet upwind and downwind outside the boundary of the landfill at a distance of at least 30 meters from the perimeter wells.
(3) Surface emission monitoring must be performed in accordance with section 8.3.1 of EPA Method 21 of appendix A-7 of part 60 of this chapter, except that the probe inlet must be placed within 5 to 10 centimeters of the ground. Monitoring must be performed during typical meteorological conditions.
(4) Any reading of 500 ppm or more above background at any location must be recorded as a monitored exceedance and the actions specified in paragraphs (c)(4)(i) through (v) of this section must be taken. As long as the specified actions are taken, the exceedance is not a violation of the operational requirements of § 63.1958(d).
(i) The location of each monitored exceedance must be marked and the location and concentration recorded. Beginning no later than September 27, 2021, the location must be recorded using an instrument with an accuracy of at least 4 meters. The coordinates must be in decimal degrees with at least five decimal places.
(ii) Cover maintenance or adjustments to the vacuum of the adjacent wells to increase the gas collection in the vicinity of each exceedance must be made and the location must be re-monitored within 10 days of detecting the exceedance.
(iii) If the re-monitoring of the location shows a second exceedance, additional corrective action must be taken and the location must be monitored again within 10 days of the second exceedance. If the re-monitoring shows a third exceedance for the same location, the action specified in paragraph (c)(4)(v) of this section must be taken, and no further monitoring of that location is required until the action specified in paragraph (c)(4)(v) of this section has been taken.
(iv) Any location that initially showed an exceedance but has a methane concentration less than 500 ppm methane above background at the 10-day re-monitoring specified in paragraph (c)(4)(ii) or (iii) of this section must be re-monitored 1 month from the initial exceedance. If the 1-month re-monitoring shows a concentration less than 500 ppm above background, no further monitoring of that location is required until the next quarterly monitoring period. If the 1-month re-monitoring shows an exceedance, the actions specified in paragraph (c)(4)(iii) or (v) of this section must be taken.
(v) For any location where monitored methane concentration equals or exceeds 500 ppm above background three times within a quarterly period, a new well or other collection device must be installed within 120 days of the initial exceedance. An alternative remedy to the exceedance, such as upgrading the blower, header pipes or control device, and a corresponding timeline for installation may be submitted to the Administrator for approval.
(5) The owner or operator must implement a program to monitor for cover integrity and implement cover repairs as necessary on a monthly basis.
(d) Each owner or operator seeking to comply with the provisions in paragraph (c) of this section must comply with the following instrumentation specifications and procedures for surface emission monitoring devices:
(1) The portable analyzer must meet the instrument specifications provided in section 6 of EPA Method 21 of appendix A of part 60 of this chapter, except that “methane” replaces all references to “VOC”.
(2) The calibration gas must be methane, diluted to a nominal concentration of 500 ppm in air.
(3) To meet the performance evaluation requirements in section 8.1 of EPA Method 21 of appendix A of part 60 of this chapter, the instrument evaluation procedures of section 8.1 of EPA Method 21 of appendix A of part 60 must be used.
(4) The calibration procedures provided in sections 8 and 10 of EPA Method 21 of appendix A of part 60 of this chapter must be followed immediately before commencing a surface monitoring survey.
(e)(1) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standards in introductory paragraph § 63.1958(e), the provisions of this subpart apply at all times, except during periods of SSM, provided that the duration of SSM does not exceed 5 days for collection systems and does not exceed 1 hour for treatment or control devices. You must comply with the provisions in Table 1 to subpart AAAA that apply before September 28, 2021.
(2) Once an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard in § 63.1958(c)(1), the provisions of this subpart apply at all times, including periods of SSM. During periods of SSM, you must comply with the work practice requirement specified in § 63.1958(e) in lieu of the compliance provisions in § 63.1960.
Except as provided in § 63.1981(d)(2):
(a) Each owner or operator seeking to comply with § 63.1959(b)(2)(ii)(B) for an active gas collection system must install a sampling port and a thermometer, other temperature measuring device, or an access port for temperature measurements at each wellhead and:
(1) Measure the gauge pressure in the gas collection header on a monthly basis as provided in § 63.1960(a)(3); and
(2) Monitor nitrogen or oxygen concentration in the landfill gas on a monthly basis as follows:
(i) The nitrogen level must be determined using EPA Method 3C of appendix A-2 to part 60 of this chapter, unless an alternative test method is established as allowed by § 63.1981(d)(2).
(ii) Unless an alternative test method is established as allowed by § 63.1981(d)(2), the oxygen level must be determined by an oxygen meter using EPA Method 3A or 3C of appendix A-2 to part 60 of this chapter or ASTM
(A) The span must be set between 10- and 12-percent oxygen;
(B) A data recorder is not required;
(C) Only two calibration gases are required, a zero and span;
(D) A calibration error check is not required; and
(E) The allowable sample bias, zero drift, and calibration drift are ±10 percent.
(iii) A portable gas composition analyzer may be used to monitor the oxygen levels provided:
(A) The analyzer is calibrated; and
(B) The analyzer meets all quality assurance and quality control requirements for EPA Method 3A of appendix A-2 to part 60 of this chapter or ASTM D6522-11 (incorporated by reference, see § 63.14).
(3) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the temperature and nitrogen or oxygen operational standards in introductory paragraph § 63.1958(c), the owner or operator must follow the procedures as specified in § 60.756(a)(2) and (3) of this chapter. Monitor temperature of the landfill gas on a monthly basis as provided in § 63.1960(a)(4). The temperature measuring device must be calibrated annually using the procedure in Section 10.3 of EPA Method 2 of appendix A-1 to part 60 of this chapter.
(4) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard for temperature in § 63.1958(c)(1), monitor temperature of the landfill gas on a monthly basis as provided in § 63.1960(a)(4). The temperature measuring device must be calibrated annually using the procedure in Section 10.3 of EPA Method 2 of appendix A-1 to part 60 of this chapter. Keep records specified in § 63.1983(e).
(5) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard for temperature in § 63.1958(c)(1), unless a higher operating temperature value has been approved by the Administrator under this subpart or under 40 CFR part 60, subpart WWW; 40 CFR part 60, subpart XXX; or a federal plan or EPA-approved and effective state plan or tribal plan that implements either 40 CFR part 60, subpart Cc or 40 CFR part 60, subpart Cf, you must initiate enhanced monitoring at each well with a measurement of landfill gas temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit) as follows:
(i) Visual observations for subsurface oxidation events (smoke, smoldering ash, damage to well) within the radius of influence of the well.
(ii) Monitor oxygen concentration as provided in paragraph (a)(2) of this section;
(iii) Monitor temperature of the landfill gas at the wellhead as provided in paragraph (a)(4) of this section.
(iv) Monitor temperature of the landfill gas every 10 vertical feet of the well as provided in paragraph (a)(6) of this section.
(v) Monitor the methane concentration with a methane meter using EPA Method 3C of appendix A-6 to part 60, EPA Method 18 of appendix A-6 to part 60 of this chapter, or a portable gas composition analyzer to monitor the methane levels provided that the analyzer is calibrated and the analyzer meets all quality assurance and quality control requirements for EPA Method 3C or EPA Method 18.
(vi) Monitor carbon monoxide concentrations, as follows:
(A) Collect the sample from the wellhead sampling port in a passivated canister or multi-layer foil gas sampling bag (such as the Cali-5-Bond Bag) and analyze that sample using EPA Method 10 of appendix A-4 to part 60 of this chapter, or an equivalent method with a detection limit of at least 100 ppmv of carbon monoxide in high concentrations of methane; and
(B) Collect and analyze the sample from the wellhead using EPA Method 10 of appendix A-4 to part 60 to measure carbon monoxide concentrations.
(vii) The enhanced monitoring this paragraph (a)(5) must begin 7 days after the first measurement of landfill gas temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit); and
(viii) The enhanced monitoring in this paragraph (a)(5) must be conducted on a weekly basis. If four consecutive weekly carbon monoxide readings are under 100 ppmv, then enhanced monitoring may be decreased to monthly. However, if carbon monoxide readings exceed 100 ppmv again, the landfill must return to weekly monitoring.
(ix) The enhanced monitoring in this paragraph (a)(5) can be stopped once a higher operating value is approved, at which time the monitoring provisions issued with the higher operating value should be followed, or once the measurement of landfill gas temperature at the wellhead is less than or equal to 62.8 degrees Celsius (145 degrees Fahrenheit).
(6) For each wellhead with a measurement of landfill gas temperature greater than or equal to 73.9 degrees Celsius (165 degrees Fahrenheit), annually monitor temperature of the landfill gas every 10 vertical feet of the well. This temperature can be monitored either with a removable thermometer, or using temporary or permanent thermocouples installed in the well.
(b) Each owner or operator seeking to comply with § 63.1959(b)(2)(iii) using an enclosed combustor must calibrate, maintain, and operate according to the manufacturer's specifications, the following equipment:
(1) A temperature monitoring device equipped with a continuous recorder and having a minimum accuracy of ±1 percent of the temperature being measured expressed in degrees Celsius or ±0.5 degrees Celsius, whichever is greater. A temperature monitoring device is not required for boilers or process heaters with design heat input capacity equal to or greater than 44 megawatts.
(2) A device that records flow to the control device and bypass of the control device (if applicable). The owner or operator must:
(i) Install, calibrate, and maintain a gas flow rate measuring device that must record the flow to the control device at least every 15 minutes; and
(ii) Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration. A visual inspection of the seal or closure mechanism must be performed at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.
(c) Each owner or operator seeking to comply with § 63.1959(b)(2)(iii) using a non-enclosed flare must install, calibrate, maintain, and operate according to the manufacturer's specifications the following equipment:
(1) A heat sensing device, such as an ultraviolet beam sensor or thermocouple, at the pilot light or the flame itself to indicate the continuous presence of a flame; and
(2) A device that records flow to the flare and bypass of the flare (if applicable). The owner or operator must:
(i) Install, calibrate, and maintain a gas flow rate measuring device that records the flow to the control device at least every 15 minutes; and
(ii) Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration. A visual inspection of the seal or closure mechanism must be performed at least
(d) Each owner or operator seeking to demonstrate compliance with § 63.1959(b)(2)(iii) using a device other than a non-enclosed flare or an enclosed combustor or a treatment system must provide information satisfactory to the Administrator as provided in § 63.1981(d)(2) describing the operation of the control device, the operating parameters that would indicate proper performance, and appropriate monitoring procedures. The Administrator must review the information and either approve it, or request that additional information be submitted. The Administrator may specify additional appropriate monitoring procedures.
(e) Each owner or operator seeking to install a collection system that does not meet the specifications in § 63.1962 or seeking to monitor alternative parameters to those required by §§ 63.1958 through 63.1961 must provide information satisfactory to the Administrator as provided in § 63.1981(d)(2) and (3) describing the design and operation of the collection system, the operating parameters that would indicate proper performance, and appropriate monitoring procedures. The Administrator may specify additional appropriate monitoring procedures.
(f) Each owner or operator seeking to demonstrate compliance with the 500-ppm surface methane operational standard in § 63.1958(d) must monitor surface concentrations of methane according to the procedures in § 63.1960(c) and the instrument specifications in § 63.1960(d). If you are complying with the 500-ppm surface methane operational standard in § 63.1958(d)(2), for location, you must determine the latitude and longitude coordinates of each exceedance using an instrument with an accuracy of at least 4 meters and the coordinates must be in decimal degrees with at least five decimal places. In the semi-annual report in 63.1981(i), you must report the location of each exceedance of the 500-ppm methane concentration as provided in § 63.1958(d) and the concentration recorded at each location for which an exceedance was recorded in the previous month. Any closed landfill that has no monitored exceedances of the operational standard in three consecutive quarterly monitoring periods may skip to annual monitoring. Any methane reading of 500 ppm or more above background detected during the annual monitoring returns the frequency for that landfill to quarterly monitoring.
(g) Each owner or operator seeking to demonstrate compliance with § 63.1959(b)(2)(iii)(C) using a landfill gas treatment system must calibrate, maintain, and operate according to the manufacturer's specifications a device that records flow to the treatment system and bypass of the treatment system (if applicable). Beginning no later than September 27, 2021, each owner or operator must maintain and operate all monitoring systems associated with the treatment system in accordance with the site-specific treatment system monitoring plan required in § 63.1983(b)(5)(ii). The owner or operator must:
(1) Install, calibrate, and maintain a gas flow rate measuring device that records the flow to the treatment system at least every 15 minutes; and
(2) Secure the bypass line valve in the closed position with a car-seal or a lock-and-key type configuration. A visual inspection of the seal or closure mechanism must be performed at least once every month to ensure that the valve is maintained in the closed position and that the gas flow is not diverted through the bypass line.
(h) The monitoring requirements of paragraphs (a), (b), (c), (d), and (g) of this section apply at all times the affected source is operating, except for periods of monitoring system malfunctions, repairs associated with monitoring system malfunctions, and required monitoring system quality assurance or quality control activities. A monitoring system malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring system to provide valid data. Monitoring system failures that are caused in part by poor maintenance or careless operation are not malfunctions. You are required to complete monitoring system repairs in response to monitoring system malfunctions and to return the monitoring system to operation as expeditiously as practicable. Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the temperature and nitrogen or oxygen operational standards in introductory paragraph § 63.1958(c)(1), (d)(2), and (e)(1), the standards apply at all times.
(a) Each owner or operator seeking to comply with § 63.1959(b)(2)(i) must site active collection wells, horizontal collectors, surface collectors, or other extraction devices at a sufficient density throughout all gas producing areas using the following procedures unless alternative procedures have been approved by the Administrator as provided in § 63.1981(d)(2) and (3):
(1) The collection devices within the interior must be certified to achieve comprehensive control of surface gas emissions by a professional engineer. The following issues must be addressed in the design: Depths of refuse, refuse gas generation rates and flow characteristics, cover properties, gas system expandability, leachate and condensate management, accessibility, compatibility with filling operations, integration with closure end use, air intrusion control, corrosion resistance, fill settlement, resistance to the refuse decomposition heat, and ability to isolate individual components or sections for repair or troubleshooting without shutting down entire collection system.
(2) The sufficient density of gas collection devices determined in paragraph (a)(1) of this section must address landfill gas migration issues and augmentation of the collection system through the use of active or passive systems at the landfill perimeter or exterior.
(3) The placement of gas collection devices determined in paragraph (a)(1) of this section must control all gas producing areas, except as provided by paragraphs (a)(3)(i) and (ii) of this section.
(i) Any segregated area of asbestos or nondegradable material may be excluded from collection if documented as provided under § 63.1983(d). The documentation must provide the nature, date of deposition, location and amount of asbestos or nondegradable material deposited in the area and must be provided to the Administrator upon request.
(ii) Any nonproductive area of the landfill may be excluded from control, provided that the total of all excluded areas can be shown to contribute less than 1 percent of the total amount of NMOC emissions from the landfill. The amount, location, and age of the material must be documented and provided to the Administrator upon request. A separate NMOC emissions estimate must be made for each section proposed for exclusion, and the sum of all such sections must be compared to the NMOC emissions estimate for the entire landfill.
(A) The NMOC emissions from each section proposed for exclusion must be computed using Equation 7:
(B) If the owner/operator is proposing to exclude, or cease gas collection and control from, nonproductive physically separated (
(iii) The values for k and C
(b) Each owner or operator seeking to comply with § 63.1959(b)(2)(ii) must construct the gas collection devices using the following equipment or procedures:
(1) The landfill gas extraction components must be constructed of polyvinyl chloride (PVC), high density polyethylene (HDPE) pipe, fiberglass, stainless steel, or other nonporous corrosion resistant material of suitable dimensions to: Convey projected amounts of gases; withstand installation, static, and settlement forces; and withstand planned overburden or traffic loads. The collection system must extend as necessary to comply with emission and migration standards. Collection devices such as wells and horizontal collectors must be perforated to allow gas entry without head loss sufficient to impair performance across the intended extent of control. Perforations must be situated with regard to the need to prevent excessive air infiltration.
(2) Vertical wells must be placed so as not to endanger underlying liners and must address the occurrence of water within the landfill. Holes and trenches constructed for piped wells and horizontal collectors must be of sufficient cross-section so as to allow for their proper construction and completion including, for example, centering of pipes and placement of gravel backfill. Collection devices must be designed so as not to allow indirect short circuiting of air into the cover or refuse into the collection system or gas into the air. Any gravel used around pipe perforations should be of a dimension so as not to penetrate or block perforations.
(3) Collection devices may be connected to the collection header pipes below or above the landfill surface. The connector assembly must include a positive closing throttle valve, any necessary seals and couplings, access couplings and at least one sampling port. The collection devices must be constructed of PVC, HDPE, fiberglass, stainless steel, or other nonporous material of suitable thickness.
(c) Each owner or operator seeking to comply with § 63.1959(b)(2)(iii) must convey the landfill gas to a control system in compliance with § 63.1959(b)(2)(iii) through the collection header pipe(s). The gas mover equipment must be sized to handle the maximum gas generation flow rate expected over the intended use period of the gas moving equipment using the following procedures:
(1) For existing collection systems, the flow data must be used to project the maximum flow rate. If no flow data exists, the procedures in paragraph (c)(2) of this section must be used.
(2) For new collection systems, the maximum flow rate must be in accordance with § 63.1960(a)(1).
Compliance is determined using performance testing, collection system monitoring, continuous parameter monitoring, and other credible evidence. In addition, continuous parameter monitoring data collected under § 63.1961(b)(1), (c)(1), and (d) are used to demonstrate compliance with the operating standards for control systems. If a deviation occurs, you have failed to meet the control device operating standards described in this subpart and have deviated from the requirements of this subpart.
(a) Before September 28, 2021, you must develop a written SSM plan according to the provisions in § 63.6(e)(3) of subpart A. A copy of the SSM plan must be maintained on site. Failure to write or maintain a copy of the SSM plan is a deviation from the requirements of this subpart.
(b) After September 27, 2021, the SSM provisions of § 63.6(e) of subpart A no longer apply to this subpart and the SSM plan developed under paragraph (a) of this section no longer applies. Compliance with the emissions standards and the operating standards of § 63.1958 of this subpart is required at all times.
A deviation is defined in § 63.1990. For the purposes of the landfill monitoring and SSM plan requirements, deviations include the items in paragraphs (a) through (c) of this section.
(a) A deviation occurs when the control device operating parameter boundaries described in § 63.1983(c)(1) are exceeded.
(b) A deviation occurs when 1 hour or more of the hours during the 3-hour block averaging period does not constitute a valid hour of data. A valid hour of data must have measured values for at least three 15-minute monitoring periods within the hour.
(c) Before September 28, 2021, a deviation occurs when a SSM plan is not developed or maintained on site and when an affected source fails to meet any emission limitation, (including any operating limit), or work practice requirement in this subpart during SSM, regardless of whether or not such failure is permitted by this subpart.
Before September 28, 2021, averages are calculated in the same way as they are calculated in 40 CFR part 60, subpart WWW (§ 60.758(b)(2)(i) for average combustion temperature and § 60.758(c) for 3-hour average combustion temperature for enclosed combustors), except that the data collected during the events listed in paragraphs (a) through (d) of this section are not to be included in any average computed under this subpart. Beginning
(a) Monitoring system breakdowns, repairs, calibration checks, and zero (low-level) and high-level adjustments.
(b) Startups.
(c) Shutdowns.
(d) Malfunctions.
You must submit the reports specified in this section and the reports specified in Table 1 to this subpart. If you have previously submitted a design capacity report, amended design capacity report, initial NMOC emission rate report, initial or revised collection and control system design plan, closure report, equipment removal report, or initial performance test under 40 CFR part 60, subpart WWW; 40 CFR part 60, subpart XXX; or a federal plan or EPA-approved and effective state plan or tribal plan that implements either 40 CFR part 60, subpart Cc or 40 CFR part 60, subpart Cf, then that submission constitutes compliance with the design capacity report in paragraph (a) of this section, the amended design capacity report in paragraph (b) of this section, the initial NMOC emission rate report in paragraph (c) of this section, the initial collection and control system design plan in paragraph (d) of this section, the revised design plan in paragraph (e) of this section, the closure report in paragraph (f) of this section, the equipment removal report in paragraph (g) of this section, and the initial performance test report in paragraph (i) of this section. You do not need to re-submit the report(s). However, you must include a statement certifying prior submission of the respective report(s) and the date of submittal in the first semi-annual report required in this section.
(a)
(1) A map or plot of the landfill, providing the size and location of the landfill, and identifying all areas where solid waste may be landfilled according to the permit issued by the state, local, or tribal agency responsible for regulating the landfill.
(2) The maximum design capacity of the landfill. Where the maximum design capacity is specified in the permit issued by the state, local, or tribal agency responsible for regulating the landfill, a copy of the permit specifying the maximum design capacity may be submitted as part of the report. If the maximum design capacity of the landfill is not specified in the permit, the maximum design capacity must be calculated using good engineering practices. The calculations must be provided, along with the relevant parameters as part of the report. The landfill may calculate design capacity in either Mg or m
(b)
(c)
(1) The NMOC emission rate report must contain an annual or 5-year estimate of the NMOC emission rate calculated using the formula and procedures provided in § 63.1959(a) or (b), as applicable.
(i) The initial NMOC emission rate report must be submitted no later than 90 days after the date of commenced construction, modification, or reconstruction for landfills that commence construction, modification, or reconstruction on or after March 12, 1996.
(ii) Subsequent NMOC emission rate reports must be submitted annually thereafter, except as provided for in paragraph (c)(1)(ii)(A) of this section.
(A) If the estimated NMOC emission rate as reported in the annual report to the Administrator is less than 50 Mg/yr in each of the next 5 consecutive years, the owner or operator may elect to submit, an estimate of the NMOC emission rate for the next 5-year period in lieu of the annual report. This estimate must include the current amount of solid waste-in-place and the estimated waste acceptance rate for each year of the 5 years for which an NMOC emission rate is estimated. All data and calculations upon which this estimate is based must be provided to the Administrator. This estimate must be revised at least once every 5 years. If the actual waste acceptance rate exceeds the estimated waste acceptance rate in any year reported in the 5-year estimate, a revised 5-year estimate must be submitted to the Administrator. The revised estimate must cover the 5-year period beginning with the year in which the actual waste acceptance rate exceeded the estimated waste acceptance rate.
(B) The report must be submitted following the procedure specified in paragraph (l)(2) of this section.
(2) The NMOC emission rate report must include all the data, calculations, sample reports and measurements used to estimate the annual or 5-year emissions.
(3) Each owner or operator subject to the requirements of this subpart is exempted from the requirements to submit an NMOC emission rate report, after installing a collection and control system that complies with § 63.1959(b)(2), during such time as the collection and control system is in operation and in compliance with §§ 63.1958 and 63.1960.
(d)
(1) The collection and control system as described in the design plan must meet the design requirements in § 63.1959(b)(2).
(2) The collection and control system design plan must include any alternatives to the operational standards, test methods, procedures, compliance measures, monitoring, recordkeeping or reporting provisions of §§ 63.1957 through 63.1983 proposed by the owner or operator.
(3) The collection and control system design plan must either conform with specifications for active collection systems in § 63.1962 or include a demonstration to the Administrator's satisfaction of the sufficiency of the alternative provisions to § 63.1962.
(4) Each owner or operator of an MSW landfill affected by this subpart must submit a collection and control system design plan to the Administrator for approval within 1 year of becoming subject to this subpart.
(5) The landfill owner or operator must notify the Administrator that the design plan is completed and submit a copy of the plan's signature page. The Administrator has 90 days to decide whether the design plan should be submitted for review. If the Administrator chooses to review the plan, the approval process continues as described in paragraph (d)(6) of this section. In the event that the design plan is required to be modified to obtain approval, the owner or operator must take any steps necessary to conform any prior actions to the approved design plan and any failure to do so could result in an enforcement action.
(6) Upon receipt of an initial or revised design plan, the Administrator must review the information submitted under paragraphs (d)(1) through (3) of this section and either approve it, disapprove it, or request that additional information be submitted. Because of the many site-specific factors involved with landfill gas system design, alternative systems may be necessary. A wide variety of system designs are possible, such as vertical wells, combination horizontal and vertical collection systems, or horizontal trenches only, leachate collection components, and passive systems.
(e)
(1) At least 90 days before expanding operations to an area not covered by the previously approved design plan.
(2) Prior to installing or expanding the gas collection system in a way that is not consistent with the design plan that was submitted to the Administrator according to paragraph (d) of this section.
(f)
(g)
(1) Beginning no later than September 27, 2021, the equipment removal report must contain all of the following items:
(i) A copy of the closure report submitted in accordance with paragraph (f) of this section;
(ii) A copy of the initial performance test report demonstrating that the 15-year minimum control period has expired, or information that demonstrates that the gas collection and control system will be unable to operate for 15 years due to declining gas flows. In the equipment removal report, the process unit(s) tested, the pollutant(s) tested, and the date that such performance test was conducted may be submitted in lieu of the performance test report if the report has been previously submitted to the EPA's Central Data Exchange (CDX); and
(iii) Dated copies of three successive NMOC emission rate reports demonstrating that the landfill is no longer producing 50 Mg or greater of NMOC per year. If the NMOC emission rate reports have been previously submitted to the EPA's CDX, a statement that the NMOC emission rate reports have been submitted electronically and the dates that the reports were submitted to the EPA's CDX may be submitted in the equipment removal report in lieu of the NMOC emission rate reports.
(2) The Administrator may request such additional information as may be necessary to verify that all of the conditions for removal in § 63.1957(b) have been met.
(h)
(1) Number of times that applicable parameters monitored under § 63.1958(b), (c), and (d) were exceeded and when the gas collection and control system was not operating under § 63.1958(e), including periods of SSM. For each instance, report the date, time, and duration of each exceedance.
(i) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the temperature and nitrogen or oxygen operational standards in introductory paragraph § 63.1958(c), provide a statement of the wellhead operational standard for temperature and oxygen you are complying with for the period covered by the report. Indicate the number of times each of those parameters monitored under § 63.1961(a)(3) were exceeded. For each instance, report the date, time, and duration of each exceedance.
(ii) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard for temperature in § 63.1958(c)(1), provide a statement of the wellhead operational standard for temperature and oxygen you are complying with for the period covered by the report. Indicate the number of times each of those parameters monitored under § 63.1961(a)(4) were exceeded. For each instance, report the date, time, and duration of each exceedance.
(iii) Beginning no later than September 27, 2021, number of times the parameters for the site-specific treatment system in § 63.1961(g) were exceeded.
(2) Description and duration of all periods when the gas stream was diverted from the control device or treatment system through a bypass line or the indication of bypass flow as specified under § 63.1961.
(3) Description and duration of all periods when the control device or treatment system was not operating and length of time the control device or treatment system was not operating.
(4) All periods when the collection system was not operating.
(5) The location of each exceedance of the 500-ppm methane concentration as provided in § 63.1958(d) and the concentration recorded at each location for which an exceedance was recorded in the previous month. Beginning no later than September 27, 2021, for location, you record the latitude and longitude coordinates of each exceedance using an instrument with an accuracy of at least 4 meters. The coordinates must be in decimal degrees with at least five decimal places.
(6) The date of installation and the location of each well or collection system expansion added pursuant to § 63.1960(a)(3) and (4), (b), and (c)(4).
(7) For any corrective action analysis for which corrective actions are required in § 63.1960(a)(3)(i) or (a)(5) and that take more than 60 days to correct the exceedance, the root cause analysis conducted, including a description of the recommended corrective action(s), the date for corrective action(s) already completed following the positive pressure or high temperature reading, and, for action(s) not already completed, a schedule for implementation, including proposed commencement and completion dates.
(8) Each owner or operator required to conduct enhanced monitoring in §§ 63.1961(a)(5) and (6) must include the results of all monitoring activities conducted during the period.
(i) For each monitoring point, report the date, time, and well identifier along with the value and units of measure for oxygen, temperature (wellhead and downwell), methane, and carbon monoxide.
(ii) Include a summary trend analysis for each well subject to the enhanced monitoring requirements to chart the weekly readings over time for oxygen, wellhead temperature, methane, and weekly or monthly readings over time, as applicable for carbon monoxide.
(iii) Include the date, time, staff person name, and description of findings for each visual observation for subsurface oxidation event.
(i)
(1) A diagram of the collection system showing collection system positioning including all wells, horizontal collectors, surface collectors, or other gas extraction devices, including the locations of any areas excluded from collection and the proposed sites for the future collection system expansion;
(2) The data upon which the sufficient density of wells, horizontal collectors, surface collectors, or other gas extraction devices and the gas mover equipment sizing are based;
(3) The documentation of the presence of asbestos or nondegradable material for each area from which collection wells have been excluded based on the presence of asbestos or nondegradable material;
(4) The sum of the gas generation flow rates for all areas from which collection wells have been excluded based on nonproductivity and the calculations of gas generation flow rate for each excluded area;
(5) The provisions for increasing gas mover equipment capacity with increased gas generation flow rate, if the present gas mover equipment is inadequate to move the maximum flow rate expected over the life of the landfill; and
(6) The provisions for the control of off-site migration.
(j)
(1) For corrective action that is required according to § 63.1960(a)(3) or (4) and is not completed within 60 days after the initial exceedance, you must submit a notification to the Administrator as soon as practicable but no later than 75 days after the first measurement of positive pressure or temperature exceedance.
(2) For corrective action that is required according to § 63.1960(a)(3) or (4) and is expected to take longer than 120 days after the initial exceedance to complete, you must submit the root cause analysis, corrective action analysis, and corresponding implementation timeline to the Administrator as soon as practicable but no later than 75 days after the first measurement of positive pressure or temperature monitoring value of 62.8 degrees Celsius (145 degrees Fahrenheit) or above. The Administrator must approve the plan for corrective action and the corresponding timeline.
(k)
(l)
(1) Within 60 days after the date of completing each performance test required by this subpart, you must submit the results of the performance test following the procedures specified in paragraphs (l)(1)(i) through (iii) of this section.
(i) Data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT website (
(ii) Data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT website at the time of the test. The results of the performance test must be included as an attachment in the ERT or an alternate electronic file consistent with the XML schema listed on the EPA's ERT website. Submit the ERT generated package or alternative file to the EPA via CEDRI.
(iii) Confidential business information (CBI). If you claim some of the information submitted under paragraph (a) of this section is CBI, you must submit a complete file, including information claimed to be CBI, to the EPA. The file must be generated through the use of the EPA's ERT or an alternate electronic file consistent with the XML schema listed on the EPA's ERT website. Submit the file on a compact disc, flash drive, or other commonly used electronic storage medium and clearly mark the medium as CBI. Mail the electronic medium to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same file with the CBI omitted must be submitted to the EPA via the EPA's CDX as described in paragraph (l)(1)(i) of this section.
(2) Each owner or operator required to submit reports following the procedure specified in this paragraph must submit reports to the EPA via CEDRI. CEDRI can be accessed through the EPA's CDX. The owner or operator must use the appropriate electronic report in CEDRI for this subpart or an alternate electronic file format consistent with the XML schema listed on the CEDRI website (
(m)
(1) You must have been or will be precluded from accessing CEDRI and submitting a required report within the time prescribed due to an outage of either the EPA's CEDRI or CDX systems.
(2) The outage must have occurred within the period of time beginning 5 business days prior to the date that the submission is due.
(3) The outage may be planned or unplanned.
(4) You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or has caused a delay in reporting.
(5) You must provide to the Administrator a written description identifying:
(i) The date(s) and time(s) when CDX or CEDRI was accessed and the system was unavailable;
(ii) A rationale for attributing the delay in reporting beyond the regulatory deadline to EPA system outage;
(iii) Measures taken or to be taken to minimize the delay in reporting; and
(iv) The date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported.
(6) The decision to accept the claim of EPA system outage and allow an extension to the reporting deadline is solely within the discretion of the Administrator.
(7) In any circumstance, the report must be submitted electronically as soon as possible after the outage is resolved.
(n)
(1) You may submit a claim if a force majeure event is about to occur, occurs, or has occurred or there are lingering effects from such an event within the period of time beginning 5 business days prior to the date the submission is due. For the purposes of this section, a force majeure event is defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents you from complying with the requirement to submit a report electronically within the time period prescribed. Examples of such events are acts of nature (
(2) You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or has caused a delay in reporting.
(3) You must provide to the Administrator:
(i) A written description of the force majeure event;
(ii) A rationale for attributing the delay in reporting beyond the regulatory deadline to the force majeure event;
(iii) Measures taken or to be taken to minimize the delay in reporting; and
(iv) The date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported.
(4) The decision to accept the claim of force majeure and allow an extension to the reporting deadline is solely within the discretion of the Administrator.
(5) In any circumstance, the reporting must occur as soon as possible after the force majeure event occurs.
Submit reports as specified in this section and § 63.1981. Keep records as specified in this section and § 63.1983.
(a) For bioreactors at new affected sources you must submit the initial semi-annual compliance report and performance test results described in § 63.1981(h) within 180 days after the date you are required to begin operating the gas collection and control system by § 63.1947(a)(2).
(b) If you must submit a semi-annual compliance report for a bioreactor as well as a semi-annual compliance report for a conventional portion of the same landfill, you may delay submittal of a subsequent semi-annual compliance report for the bioreactor according to paragraphs (b)(1) through (3) of this section so that the reports may be submitted on the same schedule.
(1) After submittal of your initial semi-annual compliance report and performance test results for the bioreactor, you may delay submittal of the subsequent semi-annual compliance report for the bioreactor until the date the initial or subsequent semi-annual compliance report is due for the conventional portion of your landfill.
(2) You may delay submittal of your subsequent semi-annual compliance report by no more than 12 months after the due date for submitting the initial semi-annual compliance report and performance test results described in § 63.1981(h) for the bioreactor. The report must cover the time period since the previous semi-annual report for the bioreactor, which would be a period of at least 6 months and no more than 12 months.
(3) After the delayed semi-annual report, all subsequent semi-annual reports for the bioreactor must be submitted every 6 months on the same date the semi-annual report for the conventional portion of the landfill is due.
(c) If you add any liquids other than leachate in a controlled fashion to the waste mass and do not comply with the bioreactor requirements in §§ 63.1947, 63.1955(b), and paragraphs (a) and (b) of this section, you must keep a record of calculations showing that the percent moisture by weight expected in the waste mass to which liquid is added is less than 40 percent. The calculation must consider the waste mass, moisture content of the incoming waste, mass of water added to the waste including leachate recirculation and other liquids addition and precipitation, and the mass of water removed through leachate or other water losses. Moisture level sampling or mass balances calculations can be used. You must document the calculations and the basis of any assumptions. Keep the record of the calculations until you cease liquids addition.
(d) If you calculate moisture content to establish the date your bioreactor is required to begin operating the collection and control system under § 63.1947(a)(2) or (c)(2), keep a record of the calculations including the information specified in paragraph (e) of this section for 5 years. Within 90 days after the bioreactor achieves 40-percent moisture content, report the results of the calculation, the date the bioreactor achieved 40-percent moisture content by weight, and the date you plan to begin collection and control system operation to the Administrator. Beginning no later than September 27, 2021, the reports should be submitted following the procedure specified in § 63.1981(l)(2).
You must keep records as specified in this subpart. You must also keep records as specified in the general provisions of 40 CFR part 63 as shown in Table 1 to this subpart.
(a) Except as provided in § 63.1981(d)(2), each owner or operator of an MSW landfill subject to the provisions of § 63.1959(b)(2)(ii) and (iii) of this chapter must keep for at least 5 years up-to-date, readily accessible, on-site records of the design capacity report that triggered § 63.1959(b), the current amount of solid waste in-place, and the year-by-year waste acceptance rate. Off-site records may be maintained if they are retrievable within 4 hours. Either paper copy or electronic formats are acceptable.
(b) Except as provided in § 63.1981(d)(2), each owner or operator of a controlled landfill must keep up-to-date, readily accessible records for the life of the control system equipment of the data listed in paragraphs (b)(1) through (5) of this section as measured during the initial performance test or compliance determination. Records of subsequent tests or monitoring must be maintained for a minimum of 5 years. Records of the control device vendor specifications must be maintained until removal.
(1) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with § 63.1959(b)(2)(ii):
(i) The maximum expected gas generation flow rate as calculated in § 63.1960(a)(1).
(ii) The density of wells, horizontal collectors, surface collectors, or other gas extraction devices determined using the procedures specified in § 63.1962(a)(1) and (2).
(2) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with § 63.1959(b)(2)(iii) through use of an enclosed combustion device other than a boiler or process heater with a design heat input capacity equal to or greater than 44 megawatts:
(i) The average temperature measured at least every 15 minutes and averaged over the same time period of the performance test.
(ii) The percent reduction of NMOC determined as specified in § 63.1959(b)(2)(iii)(B) achieved by the control device.
(3) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with § 63.1959(b)(2)(iii)(B)(
(4) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with § 63.1959(b)(2)(iii)(A) through use of a non-enclosed flare, the flare type (
(5) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with § 63.1959(b)(2)(iii)(C) through use of a landfill gas treatment system:
(i)
(ii)
(A) Monitoring records of parameters that are identified in the treatment system monitoring plan and that ensure the treatment system is operating properly for each intended end use of the treated landfill gas. At a minimum, records should include records of filtration, de-watering, and compression parameters that ensure the treatment system is operating properly for each intended end use of the treated landfill gas.
(B) Monitoring methods, frequencies, and operating ranges for each monitored operating parameter based on manufacturer's recommendations or engineering analysis for each intended end use of the treated landfill gas.
(C) Documentation of the monitoring methods and ranges, along with justification for their use.
(D) List of responsible staff (by job title) for data collection.
(E) Processes and methods used to collect the necessary data.
(F) Description of the procedures and methods that are used for quality assurance, maintenance, and repair of all continuous monitoring systems (CMS).
(c) Except as provided in § 63.1981(d)(2), each owner or operator of a controlled landfill subject to the
(1) The following constitute exceedances that must be recorded and reported under § 63.1981(h):
(i) For enclosed combustors except for boilers and process heaters with design heat input capacity of 44 megawatts (150 million Btu per hour) or greater, all 3-hour periods of operation during which the average temperature was more than 28 degrees Celsius (82 degrees Fahrenheit) below the average combustion temperature during the most recent performance test at which compliance with § 63.1959(b)(2)(iii) was determined.
(ii) For boilers or process heaters, whenever there is a change in the location at which the vent stream is introduced into the flame zone as required under paragraph (b)(3) of this section.
(2) Each owner or operator subject to the provisions of this subpart must keep up-to-date, readily accessible continuous records of the indication of flow to the control system and the indication of bypass flow or records of monthly inspections of car-seals or lock-and-key configurations used to seal bypass lines, specified under § 63.1961(b)(2)(ii), (c)(2)(ii), and (g)(2).
(3) Each owner or operator subject to the provisions of this subpart who uses a boiler or process heater with a design heat input capacity of 44 megawatts or greater to comply with § 63.1959(b)(2)(iii) must keep an up-to-date, readily accessible record of all periods of operation of the boiler or process heater. Examples of such records could include records of steam use, fuel use, or monitoring data collected pursuant to other state, local, tribal, or federal regulatory requirements.
(4) Each owner or operator seeking to comply with the provisions of this subpart by use of a non-enclosed flare must keep up-to-date, readily accessible continuous records of the flame or flare pilot flame monitoring specified under § 63.1961(c), and up-to-date, readily accessible records of all periods of operation in which the flame or flare pilot flame is absent.
(5) Each owner or operator of a landfill seeking to comply with § 63.1959(b)(2) using an active collection system designed in accordance with § 63.1959(b)(2)(ii) must keep records of periods when the collection system or control device is not operating.
(6) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard in § 63.1958(e)(1), the date, time, and duration of each startup and/or shutdown period, recording the periods when the affected source was subject to the standard applicable to startup and shutdown.
(7) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard in § 63.1958(e)(1), in the event that an affected unit fails to meet an applicable standard, record the information below in this paragraph:
(i) For each failure record the date, time and duration of each failure and the cause of such events (including unknown cause, if applicable).
(ii) For each failure to meet an applicable standard; record and retain a list of the affected sources or equipment.
(iii) Record actions taken to minimize emissions in accordance with the general duty of § 63.1955(c) and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(8) Beginning no later than September 27, 2021, in lieu of the requirements specified in § 63.8(d)(3) of subpart A you must keep the written procedures required by § 63.8(d)(2) on record for the life of the affected source or until the affected source is no longer subject to the provisions of this part, to be made available for inspection, upon request, by the Administrator. If the performance evaluation plan is revised, you must keep previous (
(d) Except as provided in § 63.1981(d)(2), each owner or operator subject to the provisions of this subpart must keep for the life of the collection system an up-to-date, readily accessible plot map showing each existing and planned collector in the system and providing a unique identification location label for each collector.
(1) Each owner or operator subject to the provisions of this subpart must keep up-to-date, readily accessible records of the installation date and location of all newly installed collectors as specified under § 63.1960(b).
(2) Each owner or operator subject to the provisions of this subpart must keep readily accessible documentation of the nature, date of deposition, amount, and location of asbestos-containing or nondegradable waste excluded from collection as provided in § 63.1962(a)(3)(i) as well as any nonproductive areas excluded from collection as provided in § 63.1962(a)(3)(ii).
(e) Except as provided in § 63.1981(d)(2), each owner or operator subject to the provisions of this subpart must keep for at least 5 years up-to-date, readily accessible records of the following:
(1) All collection and control system exceedances of the operational standards in § 63.1958, the reading in the subsequent month whether or not the second reading is an exceedance, and the location of each exceedance.
(2) Each owner or operator subject to the control provisions of this subpart must keep records of each wellhead temperature monitoring value of greater than 55 degrees Celsius (131 degrees Fahrenheit), each wellhead nitrogen level at or above 20 percent, and each wellhead oxygen level at or above 5 percent, except:
(i) When an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the compliance provisions for wellhead temperature in § 63.1958(c)(1), but no later than September 27, 2021, the records of each wellhead temperature monitoring value of 62.8 degrees Celsius (145 degrees Fahrenheit) or above instead of values greater than 55 degrees Celsius (131 degrees Fahrenheit).
(ii) Each owner or operator required to conduct the enhanced monitoring provisions in § 63.1961(a)(5), must also keep records of all enhanced monitoring activities.
(iii) Each owner or operator required to submit the
(3) For any root cause analysis for which corrective actions are required in § 63.1960(a)(3)(i)(A) or (a)(4)(i)(A), keep a record of the root cause analysis conducted, including a description of the recommended corrective action(s) taken, and the date(s) the corrective action(s) were completed.
(4) For any root cause analysis for which corrective actions are required in § 63.1960(a)(3)(i)(B) or (a)(4)(i)(B), keep a record of the root cause analysis conducted, the corrective action analysis, the date for corrective action(s) already completed following the
(5) For any root cause analysis for which corrective actions are required in § 63.1960(a)(3)(i)(C) or (a)(4)(i)(C), keep a record of the root cause analysis conducted, the corrective action analysis, the date for corrective action(s) already completed following the positive pressure reading or high temperature reading, for action(s) not already completed, a schedule for implementation, including proposed commencement and completion dates, and a copy of any comments or final approval on the corrective action analysis or schedule from the Administrator.
(f) Landfill owners or operators who convert design capacity from volume to mass or mass to volume to demonstrate that landfill design capacity is less than 2.5 million Mg or 2.5 million m
(g) Except as provided in § 63.1981(d)(2), each owner or operator subject to the provisions of this subpart must keep for at least 5 years up-to-date, readily accessible records of all collection and control system monitoring data for parameters measured in § 63.1961(a)(1) through (5).
(h) Where an owner or operator subject to the provisions of this subpart seeks to demonstrate compliance with the operational standard for temperature in § 63.1958(c)(1), you must keep the following records.
(1) Records of the landfill gas temperature on a monthly basis as monitored in § 63.1960(a)(4).
(2) Records of enhanced monitoring data at each well with a measurement of landfill gas temperature greater than 62.8 degrees Celsius (145 degrees Fahrenheit) as gathered in § 63.1961(a)(5) and (6).
(i) Any records required to be maintained by this subpart that are submitted electronically via the EPA's CEDRI may be maintained in electronic format. This ability to maintain electronic copies does not affect the requirement for facilities to make records, data, and reports available upon request to a delegated air agency or the EPA as part of an on-site compliance evaluation.
(ii) [Reserved]
(a) This subpart can be implemented and enforced by the EPA, or a delegated authority such as the applicable state, local, or tribal agency. If the EPA Administrator has delegated authority to a state, local, or tribal agency, then that agency as well as the EPA has the authority to implement and enforce this subpart. Contact the applicable EPA Regional office to find out if this subpart is delegated to a state, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency under subpart E of this part, the authorities contained in paragraph (c) of this section are retained by the EPA Administrator and are not transferred to the state, local, or tribal agency.
(c) The authorities that will not be delegated to state, local, or tribal agencies are as follows. Approval of alternatives to the standards in §§ 63.1955 through 63.1962. Where this subpart references 40 CFR part 60, subpart WWW, the cited provisions will be delegated according to the delegation provisions of 40 CFR part 60, subpart WWW. For this subpart, the EPA also retains the authority to approve methods for determining the NMOC concentration in § 63.1959(a)(3) and the method for determining the site-specific methane generation rate constant k in § 63.1959(a)(4).
Terms used in this subpart are defined in the Clean Air Act, 40 CFR part 60, subparts A, Cc, Cf, WWW, and XXX; 40 CFR part 62, subpart GGG, and subpart A of this part, and this section that follows:
(1) Fails to meet any requirement or obligation established by this subpart, including, but not limited to, any emissions limitation (including any operating limit) or work practice requirement;
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Fails to meet any emission limitation, (including any operating limit), or work practice requirement in this subpart during SSM, regardless of whether or not such failure is permitted by this subpart.
(1) Fails to meet any requirement or obligation established by this subpart including but not limited to any emission limit, or operating limit, or work practice requirement; or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit.
As specified in this subpart, you must meet each requirement in the following table that applies to you. The owner or operator may begin complying with the provisions that apply no later than September 27, 2021, any time before that date.