Animal and Plant Health Inspection Service
Food and Nutrition Service
Rural Business-Cooperative Service
Foreign-Trade Zones Board
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Employee Benefits Security Administration
Employment and Training Administration
Wage and Hour Division
Federal Aviation Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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U.S. Citizenship and Immigration Services, Department of Homeland Security; and Office of the Secretary, Employment and Training Administration, and Wage and Hour Division, Department of Labor.
Direct final rule.
The Department of Homeland Security and the Department of Labor (DOL) are jointly issuing this direct final rule to extend DOL's recently established system of discretionary Secretary of Labor review to H-2B temporary labor certification cases (H-2B cases) pending before or decided by the Department of Labor's Board of Alien Labor Certification Appeals and to make technical, conforming changes to regulations governing the timing and finality of those decisions and of decisions from the Department of Labor's Administrative Review Board in H-2B cases.
This direct final rule (DFR) is effective February 3, 2021 unless significant adverse comment is submitted by January 19, 2021. If the Departments receive significant adverse comment, the Departments will publish a timely withdrawal in the
You may send comments, identified by Regulatory Identification Number (RIN) 1290-AA43, electronically only, consistent with the following instructions. Submit comments, read background documents, and read comments received through the Federal eRulemaking Portal at
Therefore, the Departments recommend that commenters safeguard their personal information by not including Social Security numbers, personal addresses, telephone numbers, and email addresses in comments. It is the responsibility of the commenters to safeguard their information.
If you need assistance to review the comments of the rulemaking, the Department will consider providing the comments and the proposed rule in other formats upon request. For assistance to review the comments or obtain the direct final rule in an alternate format, contact Mr. Todd Smyth, General Counsel, U.S. Department of Labor, at (513) 684-3252.
Todd Smyth, General Counsel, U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW, Washington, DC 20001-8002; telephone (513) 684-3252. Individuals with hearing or speech impairments may access the telephone number above by TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
This preamble is divided into five sections: Section I describes the process of rulemaking using a direct final rule with a companion proposed rule; Section II provides general background information on the rulemaking; Section III summarizes the regulatory text; Section IV covers the administrative requirements for this rulemaking; and Section V provides additional information and instructions to those wishing to comment on the rule.
This final rule is not an Executive Order 13771 regulatory action because it is not significant under Executive Order 12866. Pursuant to the Congressional Review Act (5 U.S.C. 801
The Department of Homeland Security (DHS) and Department of Labor (DOL) (collectively, the Departments) are simultaneously publishing with this “direct final” rule an identical proposed rule elsewhere in this issue of the
The Departments have determined that this rule is suitable for direct final rulemaking. The revision to DOL's internal adjudicatory processes would implement the mechanism by which the Secretary of Labor (Secretary) can review H-2B cases pending before or decided by the Board of Alien Labor
The comment period for the proposed rule runs concurrently with the comment period for this DFR. Any comments received in response to the proposed rule will also be considered comments regarding the direct final rule and vice versa. For purposes of this rulemaking, a significant adverse comment is one that addresses (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment counsels in favor of withdrawal of the direct final rule, the Departments will consider whether the comment raises an issue serious enough to warrant a substantive response. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how the direct final rule would be ineffective or unacceptable without the addition.
The Departments request comments on all issues related to this rule, including economic or other regulatory impacts of this rule on the public.
BALCA has authority over appeals from the decisions of the Employment and Training Administration's adjudication of foreign labor certification applications. It was created by regulation to exercise delegated authority on behalf of the Secretary of Labor. Its existence is neither compelled nor governed by statute, and it is entrusted with the power to issue final agency decisions in the name of the Secretary of Labor. Earlier this year, DOL issued regulations establishing a mechanism by which the Secretary can exercise review of decisions issued by BALCA on his behalf in the H-2A, CW-1, and PERM programs. This rule will apply the same mechanism for review over decisions issued by BALCA in the H-2B program.
To ensure that the Secretary has the ability to properly supervise and direct the actions of the Department he supervises, earlier this year the Secretary of Labor also established a system of discretionary secretarial review over the decisions of the ARB.
This rule, like those actions undertaken earlier this year, preserves the existing structures by which DOL processes adjudications while giving the Secretary the option, in his sole discretion, to initiate review directly. As with DOL's existing mechanisms of secretarial review, under this reform the Secretary of Labor will rely on BALCA to assist him in identifying cases where secretarial review may be warranted. Also consistent with current practices at DOL and other agencies, the Departments do not anticipate that the power of secretarial review over H-2B cases will be used often. The Departments similarly anticipate that secretarial review—while completely within the Secretary's discretion as the principal officer accountable for DOL's activities—will typically be reserved for matters of significant importance. Finally, DOL will ensure that the secretarial review process will continue to be accomplished in a manner that complies with any applicable legal requirements.
The Departments appreciate the expeditious nature of BALCA proceedings involving temporary labor certifications and, as with the existing system of review, do not anticipate that secretarial review over H-2B cases will significantly disrupt or otherwise impede the way such cases are currently processed. As noted above, the Departments expect that secretarial review over BALCA's H-2B decisions will likely not be exercised often. Further, BALCA decisions will remain the Secretary of Labor's final administrative decision unless the Secretary himself assumes jurisdiction over the case. For example, once BALCA issues a decision that grants a labor certification or remands for further processing, the private party in the case will be able to proceed immediately to the next step of the application process. The private party will be delayed in doing so only if the Secretary later decides to undertake review. Moreover, as it does now, 29 CFR 18.95 will continue to limit any potential uncertainty that may exist because of the possibility of secretarial review by placing strict time limits on when the Secretary of Labor will have the option of assuming jurisdiction over a case.
As noted in the DOL's prior rulemaking establishing secretarial review over other BALCA cases, 85 FR 30608, the Departments have determined that it is appropriate to issue jointly this rule regarding the Secretary of Labor's review authority over H-2B cases under 29 CFR 18.95. This determination follows conflicting court decisions concerning DOL's authority to issue legislative rules on its own to carry out its duties in the H-2B program. Although the Departments each have authority to issue rules implementing their respective duties in the H-2B program, including rules providing for secretarial review, the Departments determined to make the
Through this rule, the Departments revise 29 CFR part 18 by modifying the conditions under which an H-2B decision of BALCA becomes the final decision of DOL and by extending to H-2B cases the process by which the Secretary of Labor may exercise discretionary review over cases pending before or decided by the BALCA. Technical amendments are also made to 20 CFR part 655, subpart A, to harmonize the manner in which BALCA issues decisions on behalf of the Secretary with the system of discretionary review established in 29 CFR part 18. Additionally, this rule modifies or removes the reference to “final” decisions of the ARB in 20 CFR 655.73(g)(6) and 29 CFR 503.55 to reflect that the finality of ARB decisions is governed by Secretary's Order 01-2020.
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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has been drafted and reviewed in accordance with Executive Order 12866. The Departments, in coordination with the Office of Management and Budget (OMB), determined that this rule is not a significant regulatory action under section 3(f) of Executive Order 12866 because the rule will not have an annual effect on the economy of $100 million or more; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; and will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.
Accordingly, OMB has waived review.
Because no notice of proposed rulemaking is required for this rule under section 553 of the Administrative Procedure Act, the regulatory flexibility analysis requirements of the Regulatory Flexibility Act, 5 U.S.C. 603, 604, do not apply to this rule.
The Departments have determined that this rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
The Departments have reviewed this rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
The Departments have reviewed this rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, has delegated the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the
This rule addresses matters of internal agency management and personnel, as well as matters of agency organization, practice and procedure, and consequently are exempt from the notice and public comments requirements of the Administrative Procedure Act.
Please be advised that the Departments will generally post all comments without making any change to the comments, including any personal information provided. The
In addition to all comments received by the Departments being accessible on
Individuals with hearing or speech impairments may access the telephone number above by TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Administrative practice and procedure, Labor certification processes for temporary employment.
Administrative practice and procedure, Labor.
Administrative practice and procedure, Obligations, Enforcement, Immigration and Nationality Act, Temporary alien non-agricultural workers.
For the reasons discussed in the joint preamble, part 655 of title 20 of the Code of Federal Regulations and parts 18 and 503 of title 29 of the Code of Federal Regulations are amended as follows:
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), (p), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), (p), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
(e)
(1) Affirm the CO's determination; or
(2) Reverse or modify the CO's determination; or
(3) Remand to the CO for further action.
(b) * * *
(3)
(g) * * *
(6)
5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.
(b) * * *
(1) In any case for which administrative review is sought or handled in accordance with 20 CFR 655.61, 655.171(a), or 655.461, at any point from when the BALCA receives a request for review until the passage of 10 business days after the date on which BALCA has issued its decision.
8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR 214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at § 701.
The ARB's decision will be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
In this final rule, the Department of Energy (“DOE”) is further harmonizing its test procedures with industry practice by updating a currently incorporated testing standard to reference that standard's latest version, incorporating a new industry
The effective date of this rule is February 3, 2021. The final rule changes will be mandatory for product testing starting July 6, 2021. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register on February 3, 2021. The incorporation by reference of certain other publications listed in this rulemaking was approved by the Director of the Federal Register on June 4, 2012.
The docket, which includes
A link to the docket web page can be found at
For further information on how to review the docket contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-8145. Email:
DOE maintains or updates previously approved incorporations by reference and newly incorporates by reference the following industry standards into 10 CFR part 431:
Copies of CSA C390-10 and CSA C747-09 can be obtained from Canadian Standards Association, Sales Department, 5060 Spectrum Way, Suite 100, Mississauga, Ontario, L4W 5N6, Canada, 1-800-463-6727, or by visiting
Copies of IEEE 112-2017 and IEEE 114-2010 can be obtained from Institute of Electrical and Electronics Engineers, 445 Hoes Lane, P.O. Box 1331, Piscataway, NJ 08855-1331, (732) 981-0060, or by visiting
Copies of IEC 60034-2-1:2014, IEC 60034-1:2010, and IEC 60051-1:2016 may be purchased from International Electrotechnical Commission, 3 rue de Varembé, 1st Floor, P.O. Box 131, CH—1211 Geneva 20—Switzerland, +41 22 919 02 11, or by visiting
Copies of NEMA MG 1-2016 may be purchases from National Electrical Manufacturers Association, 1300 North 17th Street, Suite 900, Arlington, Virginia 22209, +1 703 841 3200, or by visiting
For a further discussion of these standards, see section IV.O.
The Department of Energy (“DOE”) is authorized to establish and amend energy conservation standards and test procedures for small electric motors and electric motors.
The Energy Policy and Conservation Act, as amended (“EPCA”)
The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316). EPCA includes specific authority for DOE to establish test procedures and standards for small electric motors. (42 U.S.C. 6317(b))
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297)
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that equipment. (42 U.S.C. 6314(d)) Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s))
Under 42 U.S.C. 6314, EPCA sets forth criteria and procedures for prescribing and amending test procedures for covered equipment. EPCA provides in relevant part that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect the energy efficiency, energy use, or estimated annual operating cost of covered equipment during a representative average use cycle and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
In addition, if DOE determines that a test procedure amendment is warranted, it must publish test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6314(b))
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment including small electric motors to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect the energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1)) If the Secretary determines that a test procedure amendment is warranted, the Secretary must publish test procedures in the
EPCA defines “small electric motor,” as “a NEMA general purpose alternating current single-speed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG 1-1987.” (42 U.S.C. 6311(13)(G)) EPCA directed DOE to establish a test procedure for those small electric motors for which DOE makes a determination that energy conservation standards would be technologically feasible and economically justified and would result in significant energy savings. (42 U.S.C. 6317(b)(1)) On July 10, 2006, DOE published its determination that energy conservation standards for certain polyphase and certain single-phase, capacitor-start, induction-run, small electric motors are technologically feasible and economically justified, and would result in significant energy savings. 71 FR 38799. DOE later adopted test procedures for small electric motors. 74 FR 32059 (July 7, 2009) (“July 2009 final rule”). EPCA also required that following establishment of the required test procedures, DOE establish energy conservation standards for those small electric motors for which test procedures were prescribed. (42 U.S.C. 6317(b)(2)) DOE complied with this requirement when it established energy conservation standards for small electric motors. 75 FR 10874 (March 9, 2010) (“March 2010 final rule”).
Subsequently, DOE published an update to the test procedures for small electric motors on May 4, 2012. 77 FR 26608. The test procedures for small electric motors appear at 10 CFR 431.444, and incorporate certain industry standards from the Institute of Electrical and Electronics Engineers (“IEEE”) and Canadian Standards Association (“CSA”), as listed in Table I-1.
More recently, DOE published a request for information pertaining to the test procedures for small electric motors and electric motors in July 2017. 82 FR 35468 (July 31, 2017) (“July 2017 RFI”). In the July 2017 RFI, DOE solicited public comments, data, and information on all aspects of, and any issues or problems with, the existing DOE test procedure for small electric motors, including on any needed updates or revisions. DOE also discussed potential categories of electric motors (as defined at 10 CFR 431.12) that may be considered in future DOE test procedures. 82 FR 35470-35474. At the request of commenters, DOE extended the comment period for the July 2017 RFI in a notice published on August 30, 2017. 82 FR 41179.
Separate from the July 2017 RFI, NEMA and Underwriter Laboratories (“UL”) independently submitted written petitions requesting that certain portions of International Electrotechnical Commission (“IEC”) 60034-2-1:2014 be adopted as a permitted alternative test method for small electric motors and electric motors.
On April 23, 2019, DOE published a NOPR (“April 2019 NOPR”) responding to the comments received to the July 2017 RFI and proposing to further clarify the test procedures for small electric motors and incorporate an additional industry test method, IEC 60034-2-1:2014 industry test standard, for testing small electric motors and electric motors.
DOE received four comments in response to the April 2019 NOPR from the interested parties listed in Table I-2.
In this final rule, DOE is amending 10 CFR part 431 as follows:
(1) Updating the referenced industry testing standard for measuring the energy efficiency of small electric motors and electric motors to its latest version, IEEE 112-2017, “IEEE Standard Test Procedure for Polyphase Induction Motors and Generators;”
(2) Incorporating by reference as an alternative test procedure for the measurement of energy efficiency in small electric motors and electric motors testing standard IEC 60034-2-1:2014, “Standard methods for determining losses and efficiency from tests (excluding machines for traction vehicles);”
(3) Adding definitions for “rated load,” “rated output power,” and “breakdown torque” of small electric motors based on NEMA MG 1-2016; and
(4) Specifying the frequency used for testing by defining “rated frequency,” and specify that manufacturers select the voltage used for testing by defining “rated voltage.”
Table II-1 summarizes the test procedure amendments compared to the current test procedure as well as the reason for each change.
DOE has determined that the amendments described in section III of this notice will not alter the measured efficiency of small electric motors or electric motors, and that the test procedures will not be unduly burdensome to conduct. Discussion of DOE's actions are addressed in detail in section III of this document.
This final rule does not change the scope of the test procedure with respect to small electric motors and electric motors. The scope of the test procedure as applied to currently regulated motors is discussed in sections III.A.1 through III.A.3.
EPCA defines the term “small electric motor” as “a NEMA general purpose alternating current single-speed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG 1-1987.” 42 U.S.C. 6311(13)(G) In the July 2009 final rule, DOE adopted a modified version of this definition at 10 CFR 431.442 to specify that the term also encompasses those motors that are built as “IEC metric equivalent motors.” 74 FR 32059, 32062; 10 CFR 431.442. This specification ensures that motors that otherwise satisfy the small electric motor definition but are built in accordance with metric-units are treated in a like manner as their counterparts that are built in accordance with U.S. customary units of measurement.
The current definition at 10 CFR 431.442 lists the criteria that must be met for a motor to be defined as a “small electric motor.” Under these criteria, a small electric motor is:
A NEMA general purpose motor
• Uses alternating current,
• Is single-speed,
• Is an induction motor; and
• Is built in a two-digit frame size in accordance with NEMA Standards Publication MG 1-1987, including IEC metric equivalent motors. See 10 CFR 431.442.
DOE did not propose to modify the definition of “small electric motor” in the April 2019 NOPR (
In the March 2010 final rule, DOE concluded that the following motor topologies satisfy the small electric motor definition: Capacitor-start induction-run (“CSIR”), capacitor-start capacitor-run (“CSCR”), and certain polyphase motors. 75 FR 10874, 10882-10883. DOE determined for purposes of its regulations that only CSIR, CSCR, and polyphase motors are able to meet the performance requirements in NEMA MG1 and are widely considered general purpose alternating current motors, as shown by the listings found in manufacturers' catalogs.
In response to the April 2019 NOPR, DOE received a number of comments relevant to the scope of applicability for the small electric motors test procedures. NEMA commented that there have been no significant technological advancements for small electric motors since the last rulemaking and that it supported maintaining the current scope of applicability. (NEMA, No. 84 at p. 2)
The CA IOUs and Efficiency Advocates supported expanding the scope of the small electric motors test procedures to cover a broader range of motors. In their view, DOE should expand the scope of the small electric motors test procedure to address a wide range of motors that the market considers “small.” (CA IOUs, No. 86 at p. 2) The Efficiency Advocates stated that DOE previously found that motors with the same characteristics as currently regulated small electric motors are widely available in larger horsepower ranges. They referenced DOE's preliminary identification presented in the July 2017 RFI of 11 motor categories that may represent significant shipment volumes and energy consumption and that were capable of being tested using existing test procedures. The Efficiency Advocates stated that these motor categories include both inefficient designs (
As previously stated, DOE is not modifying the test procedure's scope. The test procedure continues to apply only to small electric motors that are currently subject to DOE's existing test procedure at 10 CFR 431.444. As explained in the March 2010 final rule, under the definition of “small electric motor” prescribed by EPCA, CSIR, CSCR, and polyphase motors are the only motor categories that are general purpose motors (which is a key element to the statutory definition of this term), and therefore the only categories for which DOE has authority to regulate as a small electric motor. 75 FR 10874, 10881. Special purpose and definite purpose motors are not general purpose motors and therefore are not covered under the statutory or regulatory definition of “small electric motor” and are not “small electric motors” under DOE's statutory or regulatory framework.
In the July 2017 RFI, DOE indicated that it may consider setting test procedures for electric motors that are considered “small” by customers and the electric motors industry, but that are not currently subject to the small electric motor test procedure. 82 FR 35468, 35470-35471. DOE discussed that the motors identified in the July 2017 RFI may have similarities to motors that are currently regulated as small electric motors (such as horsepower) and may be used in similar applications. However, DOE had not concluded that the identified motors are small electric motors or electric motors (nor did DOE propose such a conclusion). While certain commenters urged DOE to expand the scope of the test procedures to include some or all of the 11 categories of motors identified in the July 2017 RFI, these commenters did not provide an explanation for how such expansion would be consistent with DOE's authority under EPCA, or how such motors should be classified and tested.
AHAM and AHRI referenced the statutory exemption regarding the application of energy conservation standards for small electric motors that are components of covered products (42 U.S.C. 6317(b)(3)) and requested that DOE interpret the exemption to apply to all small electric motors destined for or used in covered products or equipment. (AHAM and AHRI, No. 85 at p. 4)
By statute, the small electric motor standards established by DOE shall not apply to any such motor that is a component of a covered product, or of covered equipment. (42 U.S.C. 6317(b)(3)) Accordingly, consistent with the statute, the test procedure as amended in this final rule does not apply to a motor that is a component of a covered product, or of covered equipment.
As noted in section I.B, this final rule also addresses the test procedure for electric motors in response to a petition for rulemaking.
The DOE test procedures rely on industry standards that are incorporated by reference at 10 CFR 431.443 for small electric motors and 10 CFR 431.15 for electric motors. Specifically, the existing DOE test procedures for small electric motors and electric motors rely on the following test methods:
(1) For single-phase small electric motors: Either IEEE 114-2010, or CSA C747-09 (
(2) For polyphase small electric motors of less than or equal to 1 hp, either Section 6.3 “Efficiency Test Method A, Input-Output” of IEEE 112-2004, “IEEE Standard Test Procedure for Polyphase Induction Motors and Generators” (“IEEE 112-2004”) or CSA C747-09 (
(3) For polyphase small electric motors of greater than 1 hp and electric motors, either Section 6.4 “Efficiency Test Method B, Input-Output with Loss Segregation” of IEEE 112-2004; or CSA C390-10 (
In preparation for the April 2019 NOPR, DOE reviewed each of the referenced industry standards to determine whether they still represent the most current procedures developed by industry. On February 14, 2018, IEEE published an updated edition of the IEEE 112 standard. The other referenced industry standards incorporated into DOE's test procedure developed by CSA and IEEE remain current or have been reaffirmed without changes.
On February 14, 2018, IEEE approved IEEE 112-2017, “IEEE Standard Test Procedure for Polyphase Induction Motors and Generators.” DOE conducted a full review of that revised testing standard to identify any changes made relative to the industry test methods that are incorporated by reference from IEEE 112-2004. In the April 2019 NOPR, DOE highlighted the following changes between the 2004 and 2017 version: (1) Section 4, “Measurements” of IEEE 112-2017, includes several updates regarding instrument selection and measurement accuracy; and (2) the method for calculating core loss used in Section 6.4, “Efficiency Test Method B—Input-Output with Loss Segregation” of IEEE 112-2017 was revised and aligned with the efficiency test method specified in CSA C390-10, currently incorporated by reference at 10 CFR 431.443(b)(2). 84 FR 17004, 17011. DOE further noted that this change also aligns with the Method 2-1-1B approach of IEC 60034-2-1:2014.
In response to the April 2019 NOPR, NEMA supported updating the reference to IEEE 112 to its latest 2017 version and noted that IEEE 112-2017 Method B resolves previous technical differences between IEEE 112-2004 Method B and CSA C390-10. NEMA added that both versions of IEEE 112 led to equivalent results. (NEMA, No. 84 at p. 2) The Efficiency Advocates supported referencing the latest version of IEEE 112 and urged DOE not to continue referencing the older version since referencing two different procedures introduces additional variability into the DOE test procedure. (Efficiency Advocates, No. 87 at p. 2)
DOE has determined that IEEE 112-2017 will result in an accurate and similar measurement of efficiency as compared to IEEE 112-2004. Given the expected variation of tested efficiency values for small electric motors and electric motors due to manufacturing and material differences, any minor differences between IEEE 112-2004 and IEEE 112-2017 will not result in any significant change in overall energy efficiency test results. This determination is consistent with DOE's prior comparison of IEEE 112-2004 and CSA C390-10, as affirmed by NEMA's comment. Given the functional equivalency of testing under IEEE 112-2004 and IEEE 112-2017, DOE is incorporating IEEE 112-2017 in place of IEEE 112-2004. Referencing only the most recent version of IEEE 112 avoids the potential concerns identified by the Efficiency Advocates. Additionally, incorporating this update further aligns DOE's test procedures with current industry practice and reduces manufacturer test burden, while ensuring that motors that have demonstrated compliance under IEEE 112-2004 methods do not require retesting (see section III.F.1 for more details).
Therefore, the updates to IEEE 112-2017 are in the following sections of the CFR (as amended by this final rule):
For small electric motors, 10 CFR 431.443 “Materials incorporated by reference,” paragraph (d)(1); 10 CFR 431.444 “Test procedures for the measurement of energy efficiency,” paragraphs (b)(1)(vi), (b)(3)(i) and (b)(4)(i); and 10 CFR 431.447 “Department of Energy recognition of nationally recognized certification programs,” paragraphs (b)(4) and (c)(4).
For electric motors, 10 CFR 431.12 “Definitions” (the definition for “accreditation”); 10 CFR 431.15 “Materials incorporated by reference,” paragraph (d)(1); 10 CFR 431.19 “Department of Energy recognition of accreditation bodies,” paragraphs (b)(4) and (c)(4); 10 CFR 431.20 “Department of Energy recognition of nationally recognized certification programs,” paragraphs (b)(4) and (c)(4); and Appendix B to Subpart B of Part 431 “Uniform test method for measuring nominal full load efficiency of electric motors,” Sections 0(d),
As discussed in section I.B, NEMA and UL independently submitted written petitions requesting that certain portions of IEC 60034-2-1:2014 be adopted as a permitted alternative test method for small electric motors and electric motors. Specifically, NEMA's petition requested that DOE incorporate IEC 60034-2-1:2014 Method 2-1-1B
The NEMA petition included a “work paper” that summarizes an evaluation conducted by the NEMA Motor and Generator Section technical committee, which found that IEC 60034-2-1:2014 Method 2-1-1B was a suitable alternative to the IEEE 112-2004 Test Method B and CSA C390-10 test methods. (NEMA, No. 28.3 at p. 1) This evaluation relied on (1) comparison of instrumentation accuracy, test method, and calculation approach among the IEC, IEEE, and CSA industry standards, (2) analysis of test results from over 500 motors tested at the Hydro-Québec Research Institute, and (3) reference to one scientific research paper (the “Angers
The UL petition included two papers comparing the IEC 60034-2-1 test methods with the respective IEEE and CSA standards. The first paper was the Angers
In the April 2019 NOPR, DOE proposed to permit use of IEC 60034-2-1:2014 Method 2-1-1A, with certain limitations regarding torque measurement, as an alternative to IEEE 112-2004 Test Method B and CSA C390-10. 84 FR 17004, 17012-17013. DOE also proposed to permit use of IEC 60034-2-1:2014 Method 2-1-1B as a permitted alternative to the test methods IEEE 112-2004 Test Method B and CSA C390-10. 84 FR 17004, 17014. DOE requested comment on its proposals regarding IEC 60034-2-1:2014 Method 2-1-1A and Method 2-1-1B, including data comparing test results of those standards with the corresponding CSA and IEEE test procedures. 84 FR 17004, 17013-17014.
The CA IOUs questioned whether alternative testing standards are truly equivalent to one another and commented that DOE should evaluate the possibility that one equivalent test procedure may produce a disproportionately favorable result compared to another. The CA IOUs recommended that, to avoid confusion in the market and maintain consistency in results, the DOE should specify a single version of a test procedure to be used for enforcement testing. (CA IOUs, No. 86 at p. 2-3)
As discussed in the April 2019 NOPR and in the following sections, DOE evaluated the various industry tests as well as the results of comparative testing and concludes that the relevant test methods in IEC 60034-2-1:2014 are equivalent to the corresponding industry standards currently referenced in the test procedures for small electric motors and electric motors. Permitting use of the test methods in IEC 60034-2-1:2014 further harmonizes DOE's test standards with industry and reduces test burden while ensuring that the test procedure reflects the energy efficiency of the relevant motors during a representative average use cycle.
Among multiple testing methods provided in IEC 60034-2-1:2014, Method 2-1-1A “Direct measurement of input and output” is the standard's preferred testing method for single-phase motors. It is based on direct measurement of electrical input power to the motor and mechanical output power (in the form of torque and speed) from the motor. This approach is analogous to the methods of the other industry standards, IEEE 114-2010 and CSA C747-09, currently incorporated by reference for testing single-phase motors, and IEEE 112-2004 Test Method A, currently incorporated by reference for the purpose of testing polyphase motors of output power less than or equal to one horsepower.
In the April 2019 NOPR, DOE tentatively determined that IEC 60034-2-1:2014 Method 2-1-1A is likely to produce accurate and reproducible results that are consistent with results from the other test methods permitted under subparts X and B of 10 CFR part 431. 84 FR 17004, 17013. DOE proposed to incorporate by reference IEC 60034-2-1:2014 Method 2-1-1A as an alternative to the currently incorporated industry testing standards IEEE 112-2004 Test Method A and CSA C747-09 in 10 CFR 431.443.
In response to the April 2019 NOPR, NEMA reiterated its support to have the option of using IEC 60034-2-1:2014 Method 2-1-1A. (NEMA, No. 84 at p. 3) DOE did not receive any other comment on the incorporation of IEC 60034-2-1:2014 Method 2-1-1A generally, or regarding the proposal to limit torque measurement.
For the reasons discussed in the April 2019 NOPR, DOE is referencing IEC 60034-2-1:2014 Method 2-1-1A as an alternative to the referenced industry testing standards IEEE 112-2017 Test Method A (per the amendment in this final rule) and CSA C747-09 in 10 CFR 431.443. As proposed, this final rule requires torque measurement, when using IEC 60034-2-1:2014 Method 2-1-1A, to be made using either in-line, shaft-coupled, rotating torque transducers or stationary, stator reaction torque transducers. This change will
For small electric motors, DOE is adding a reference to IEC 60034-2-1 in 10 CFR 431.443 “Materials incorporated by reference,” paragraph (c)(2) and making a more specific set of references to IEC 60034-2-1:2014 Method 2-1-1A in 10 CFR 431.444 “Test procedures for the measurement of energy efficiency,” paragraphs (b)(2)(iii) and (b)(3)(iii) and in 10 CFR 431.447 “Department of Energy recognition of nationally recognized certification programs,” paragraphs (b)(4) and (c)(4).
In addition, section 6.1.2.2 of IEC 60034-2-1:2014 Method 2-1-1A specifies that motors under test should be operated at the “required load” until thermal equilibrium is achieved. As required under DOE's test procedure, the motor must be rated and tested at rated load. For clarity and consistency, in the April 2019 NOPR, DOE proposed to modify these instructions by replacing the term “required load” with “rated load.” 84 FR 17004, 17013. DOE did not receive any stakeholder comments on this proposal and is modifying these instructions by replacing the term “required load” with “rated load.”
Furthermore, IEC 60034-2-1:2014 references IEC 60034-1:2010 and IEC 60051-1:2016 to specify required test conditions and procedures when applying the test methods for measuring energy efficiency in the following sections: (1) Section 5.4.1 of IEC 60034-2-1:2014 specifies that the supply voltage shall be in accordance with sections 7.2 (and 8.3.1 for thermal tests) of IEC 60034-1:2010; (2) section 5.5.2 of IEC 60034-2-1:2014 specifies that the measuring instruments shall have the equivalent of an accuracy class of 0.2 in case of a direct test and 0.5 in case of an indirect test in accordance with IEC 60051;
Among the multiple testing methods provided in IEC 60034-2-1:2014, Method 2-1-1B “Summation of losses, additional load losses according to the method of residual loss” is the IEC 60034-2-1:2014 standard's preferred testing method for three-phase motors. This method relies on the indirect calculation of motor losses using a combination of measured values (
DOE reviewed IEC 60034-2-1:2014, Method 2-1-1B, and stakeholder responses to the November 2017 notice of petition, as well as all of the research papers referenced in the NEMA and UL petitions. The research papers evaluated IEC 60034-2-1:2014, Method 2-1-1B and the IEEE 112-2004 Test Method B and CSA C390-10 testing standards with respect to a comparison of the instrumentation accuracy, test method, and calculation approach, in addition to an analysis of any variability of actual test results. DOE also considered a comparison of results from a round robin test program among 11 participants, which concluded that the same motor tested at multiple test facilities showed a maximum deviation of ±0.4 percentage points, using the same IEEE 112-2004 Test Method B for each test.
DOE initially concluded that (1) these methods are not identical, but the differences between these standards are within the expected measurement variation of the existing test procedure; (2) all three tests would result in measurements of efficiency that would yield the same results with respect to motor compliance; and (3) given the variable nature of tested efficiency values for electric motors and small electric motors due to manufacturing and material differences, the variation in the calculated efficiency is insignificant and not likely to result in any significant change in overall energy efficiency test results. 84 FR 17004, 17014. Accordingly, in the April 2019 NOPR, DOE proposed to incorporate by reference IEC 60034-2-1:2014 Method 2-1-1B as an alternative to the currently incorporated industry testing standards IEEE 112-2004 Test Method B and CSA C390-10 and to IEEE 112-2017 Test Method B.
In response to the April 2019 NOPR, NEMA reaffirmed its request for the addition of IEC 60034-2-1:2014 Method 2-1-1B as an alternative test standard for polyphase small electric motors greater than 1 hp and electric motors. (NEMA, No. 84 at p. 3)
Based on the considerations presented in the April 2019 NOPR, DOE affirms its initial conclusions regarding IEC 60034-2-1:2014 Method 2-1-1B. Allowing manufacturers to test according to IEC 60034-2-1:2014 Method 2-1-1B further harmonizes DOE's test procedures with current industry practice and reduces manufacturer test burden (see section III.F.2 for more details) while ensuring that the test procedure reflects the energy efficiency of the relevant motors during a representative average use cycle. Therefore, in this final rule, DOE is referencing IEC 60034-2-1:2014 Method 2-1-1B as a permitted alternative to the current test methods IEEE 112-2004 Test Method B (which in this final rule will be replaced with IEEE 112-2017 Test Method B) and CSA C390-10. In addition, as described in section III.B.2.a, DOE is also incorporating by reference IEC 60034-1:2010 and IEC 60051-1:2016, which specify the test conditions and procedures for IEC 60034-2-1:2014.
Accordingly, reference to IEC 60034-2-1:2014 Method 2-1-1B is being added to the following sections of the CFR:
For small electric motors, IEC 60034-2-1 is referenced in 10 CFR 431.443 “Materials incorporated by reference,” paragraph (c)(2). The specific references to IEC 60034-2-1:2014 Method 2-1-1B are in 10 CFR 431.444 “Test procedures for the measurement of energy efficiency,” paragraph (b)(4)(iii) and 10 CFR 431.447 “Department of Energy recognition of nationally recognized
For electric motors, IEC 60034-2-1 is referenced in 10 CFR 431.12 “Definitions” (the definition for “accreditation”); and 10 CFR 431.15 “Materials incorporated by reference,” paragraph (c)(3). The specific references to IEC 60034-2-1:2014 Method 2-1-1B are in 10 CFR 431.19 “Department of Energy recognition of accreditation bodies,” paragraphs (b)(4) and (c)(4); 10 CFR 431.20 “Department of Energy recognition of nationally recognized certification programs,” paragraphs (b)(4) and (c)(4); and Appendix B to Subpart B of Part 431 “Uniform test method for measuring nominal full load efficiency of electric motors,” Sections 2(2) and 3.
The current regulations for small electric motors specify that the metric for energy conservation standards, average full-load efficiency, is to be measured at “full rated load.” 10 CFR 431.442. The industry testing standards referenced in the small electric motor test procedure do not provide a method to determine the rated load of the tested unit but instead rely on manufacturer-specified output power, which is typically listed on a motor's nameplate, to determine average full-load efficiency at full rated load.
As explained in the April 2019 NOPR, the motors subject to the small electric motors test procedures are capable of operating over a continuous range of loads. 84 FR 17004, 17014. For example, a motor that is rated at 1 hp is also capable of delivering 0.75 hp, but likely with a different speed, torque, and efficiency than those of when it is delivering its rated load of 1 hp. The output power of the motor depends on the load and the design of the motor. Therefore, the load point at which the motor must be tested is not an intrinsic parameter of the motor, but rather a parameter that must be defined or specified. The test's load point is relevant to efficiency testing because the efficiency of small electric motors varies according to load.
In the April 2019 NOPR, DOE proposed to define rated output power using breakdown torque as specified in NEMA MG 1-2016. 84 FR 17004, 17014-17016. In concept, breakdown torque describes the maximum torque the motor can develop without slowing down and stalling. The maximum torque over the entire speed range could occur at a different condition (
The breakdown torque for a specific horsepower rating is specified as a range as a function of input frequency and synchronous speed of the motor in two tables: Table 10-5 of NEMA MG 1-2016, which applies to induction motors, except permanent-split capacitor (“PSC”) and shaded-pole motors; and Table 10-6 of NEMA MG 1-2016, which applies to shaded-pole and PSC motors for fan and pump applications. For polyphase motors, section 12.37 of NEMA MG 1-2016 specifies that the breakdown torque of a general-purpose polyphase squirrel-cage small motor shall not be less than 140 percent of the breakdown torque of a single-phase general purpose motor of the same horsepower and speed rating.
In the April 2019 NOPR, DOE initially determined that NEMA MG 1-2016's Table 10-5 can apply to all small electric motors subject to DOE's standards and that most manufacturers already use the breakdown torque method as a standard practice to determine rated output power. 84 FR 17004, 17016. Accordingly, DOE proposed to define “rated output power” as “the mechanical output power that corresponds to the small electric motor's breakdown torque as specified in NEMA MG 1-2016 Table 10-5 for single-phase motors or 140 percent of the breakdown torque values specified in NEMA MG 1-2016 Table 10-5 for polyphase motors.”
In response to the April 2019 NOPR, NEMA commented that there is no need to define “breakdown torque” or “abrupt drop in speed” for the purposes of testing electric motors. (NEMA, No. 84 at p. 3) Specifically, NEMA stated that incorporating breakdown torque as the method to define the rated output power of the motor is unnecessary because NEMA MG 1-2016, Part 1.40 already states the output rating of a machine “shall” consist of the output power. Instead, NEMA recommended that the declared values of output power be used as provided on the manufacturer's nameplate and that DOE not require a declaration of breakdown torque. (NEMA, No. 84 at pp. 3-4). NEMA further stated that the “abrupt drop in speed” corresponds to the expectations that the motor will slow down or stall if the torque applied to the motor exceeds the local maximum value of torque that is most closely located to the rated torque of the motor (
In the April 2019 NOPR, DOE did not intend to suggest that it would require manufacturers to test or report the value of breakdown torque used to establish the rated output power of a small electric motor. Rather, the intent of defining “breakdown torque,” through reference to the industry standard NEMA MG 1-2016, was to in turn define “rated output power” for the purpose of measuring average full-load efficiency. As noted previously, NEMA responded to the April 2019 NOPR by explaining that NEMA MG 1-2016 Part 1.40 already states the output rating of a machine shall consist of the output power. (NEMA, No. 84 at p. 3-4) As indicated by its inclusion in NEMA MG 1-2016, the breakdown torque method is commonly used by industry for determining rated output power. Defining rated output power based on NEMA MG 1-2016 provides additional detail that allows for the accurate comparison of small electric motors.
Therefore, in this final rule, DOE defines “rated output power” as, the mechanical output power that corresponds to the small electric motor's
DOE also is defining “breakdown torque.” Consistent with the proposed definition, DOE is defining “breakdown torque,” in part, as “the maximum torque that the motor will develop with rated voltage and frequency applied without an abrupt drop in speed.” As previously noted, the phrase “abrupt drop in speed” references the intrinsic behavior of motors, in which a motor will slow down or stall if the load applied to the motor exceeds the breakdown torque, and indicates that minor reductions in speed observed due to measurement sensitivities are not considered. To provide additional specification for determining breakdown torque based on the physical attributes of a small electric motor, DOE is also including in the definition that the breakdown torque of a motor is the local maximum of the torque-speed plot of the motor, closest to the synchronous speed of the motor.
Both the April 2019 NOPR and NEMA's comments explained that on a torque-speed plot, the breakdown torque is the local maximum torque in the region of the plot characterized through reference to the rated torque. The relevant region of the plot can also be characterized through reference to the synchronous speed. The local maximum of the torque-speed plot in the region characterized by the rated torque is the same value as the local maximum of the torque-speed plot in the region characterized by the synchronous speed. DOE is providing additional detail to define breakdown torque using the synchronous speed, as it is a physical attribute of the motor rather than rated torque, which is a manufacturer declared value.
For the reasons discussed in the preceding paragraphs, DOE is defining “breakdown torque” as the maximum torque that the motor will develop with rated voltage and frequency applied without an abrupt drop in speed. The breakdown torque is the local maximum of the torque-speed plot of the motor, closest to the synchronous speed of the motor, determined in accordance with NEMA MG 1-2016.
DOE notes that the definition of average full-load efficiency at 10 CFR 431.442 specifies that it is determined when the motor operates at the rated frequency, rated load, and rated voltage. Additionally, industry standards refer to these rated values, which are expected to be known or provided (
The test procedures and energy conservation standards established under EPCA apply to those regulated motors that are distributed in commerce within the United States. Within the United States, electricity is supplied at 60 hertz (“Hz”); in other regions of the world, electricity is supplied at 50 Hz. Small electric motors could be designed to operate at frequencies in addition to 60 Hz (
NEMA commented that explicitly stating that rated frequency is 60 Hz would be beneficial in the case of a motor marked as 60/50 hertz. (NEMA, No. 84 at p. 4) The CA IOUs supported DOE's proposal that all tests be performed using a rated frequency of 60 Hz. (CA IOUs, No. 86 at p. 3) The Efficiency Advocates supported DOE's proposal to specify that all small electric motor tests be performed using a rated frequency of 60 Hz to remove ambiguity in the test procedure and to ensure that the test procedure reflects the operating frequency in the U.S. (Efficiency Advocates, No. 87 at p. 2) DOE did not receive any comments opposing the proposed definition.
DOE notes that 60 Hz as the tested input frequency matches the frequency experienced by the motor when installed in the field. In addition, commenters also recommended DOE require testing at a rated frequency of 60 Hz, as noted. Therefore, in this final rule, DOE is amending 10 CFR 431.442 to establish a definition of “rated frequency” as “60 hertz.”
“Rated load”
The Efficiency Advocates supported DOE's proposed definition for rated load, commenting that this specification will help ensure that test procedures are applied consistently. (Efficiency Advocates, No. 87 at p. 2) The CA IOUs supported the definition for “rated load” for small electric motors based on NEMA MG 1-2016. (CA IOUs, No. 86 at p. 3) NEMA commented that qualifying that the rated output power stamped on the name plate of a small motor is equivalent to rated load, full rated load, rated full load or full-load in an industry standard is beneficial and eliminates questions regarding interpretation. (NEMA, No. 84 at p. 4)
Providing a definition for “rated load” further ensures the comparability of results between motors, and better ensures reproducible testing. In addition, qualifying that the rated output power is equivalent to rated load, rated full-load, full rated load, or full-load in an industry standard used for testing small electric motors removes any confusion on the interpretation of terms. Commenters also supported clarifying the term “rated load.” Accordingly, consistent with its proposal, DOE is amending 10 CFR 431.442 to establish a definition of “rated load” as “the rated output power of a small electric motor.”
Industry testing standards use “rated voltage” to specify the voltage supplied to the motor under test (
In response to the April 2019 NOPR, the Efficiency Advocates commented that small electric motors should be tested at all nameplate voltages
In the March 2010 final rule, DOE noted that the industry test procedures incorporated into DOE's regulations permit manufacturers to select the input voltage for testing. 75 FR 10874, 10892. In the April 2019 NOPR, DOE proposed to maintain the practice of permitting small electric motors to be tested at any nameplate voltage value and to specify this flexibility by defining the term “rated voltage” at 10 CFR 431.442 as referring to the input voltage of a small electric motor selected by the motor's manufacturer to be used for testing the motor's efficiency. 84 FR 17004, 17081.
DOE is adopting the proposed definition of “rated voltage” with additional clarification. In the April 2019 NOPR, DOE stated that the proposed definition of “rated voltage” would allow small electric motors to be tested at any nameplate voltage value.
DOE is not requiring a specific input voltage for testing. As discussed in the April 2019 NOPR, NEMA previously indicated that the input voltage setting can affect efficiency, noting that, if DOE were to require motors to comply with testing performed at the input voltage that resulted in the lowest level of efficiency, manufacturers would be forced to redesign these motors, since at least some motors would be out of compliance at voltages not currently selected for certification. 84 FR 17004, 17017-17018. In its prior comment, NEMA explained that these redesign efforts would result in larger motors to accommodate the additional active material required to create a compliant motor and could result in the use of larger frame sizes, which would create utility problems for end users of the motors. (NEMA, EERE-2014-BT-CE-0019, No. 10 at p. 10) While the selection of the input voltage for testing may affect the measured efficiency, DOE does not have data to fully characterize any such impact.
Moreover, EPCA requires that the test procedures shall be reasonably designed to produce test results which reflect energy efficiency of small electric motors during a representative average use cycle and shall not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(1) and (2)) DOE does not have data to indicate that a represented input voltage selected by a manufacturer is inappropriately representative of the average use of that small electric motor as compared to a different represented input voltage. Commenters did not provide data to indicate that the represented values being selected by manufacturers are not representative of average use. Therefore, DOE is maintaining the current test procedure direction allowing manufacturers to select the input voltage for testing.
The effective date (
EPCA prescribes that all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with an amended test procedure, beginning 180 days after publication of the final rule in the
EPCA requires that test procedures prescribed by DOE not be unduly burdensome to conduct. 42 U.S.C. 6314(a)(2). DOE is amending (1) the existing test procedure for small electric motors by clarifying the existing scope and testing instructions, updating the reference to industry standard IEEE 112 to reference the 2017 version in place of the 2014 version, and permitting the use of IEC 60034-2-1:2014 as an additional alternative test procedure; and (2) the existing test procedure for electric motors by permitting the use of IEC 60034-2-1:2014 as an additional alternative and equivalent test procedure. DOE has determined that the test procedures as amended by this final rule will not be unduly burdensome for manufacturers to conduct and instead will reduce test burden for manufacturers.
This final rule will result in a net cost savings to manufacturers, as summarized in Table III-1 and Table III-2.
Further discussion of the analyses of the cost impact of the test procedure amendments is presented in the following paragraphs.
The clarifications of the existing scope and test instructions will not impose any new requirements on manufacturers of regulated small electric motors. Instead, this final rule will provide manufacturers with greater certainty in the conduct of the test procedures, offer additional equivalent testing options, and do not increase test burden. Reference to IEEE 112-2017 in place of IEEE 112-2004 will not increase test burden or require new testing. As discussed, results under the 2017 version of IEEE 112 are equivalent to results from testing under the 2004 version. Manufacturers will be able to rely on data generated under the current test procedure. Additionally, the incorporation of IEC 60034-2-1:2014 as an additional alternative test procedure further harmonizes DOE's test procedures with current industry practice and international standards. Permitting manufacturers to test according to IEC 60034-2-1:2014 enables manufacturers who use IEC 60034-2-1:2014 for business purposes (for international markets), or to comply with regulatory requirements in other countries, to reduce the number of tests that they must perform by removing the need to conduct a test according to the CSA or IEEE methods
Recognizing that some, but not all, manufacturers already test their motors using IEC 60034-2-1:2014, DOE (as explained later in this section) assumed that 10 percent
To calculate the testing cost reduction associated with allowing the IEC 60034-2-1:2014 method for testing small electric motors, DOE estimated the number of motor models that would not have to be tested to both the amended DOE test procedure and the IEC test
DOE estimated the cost of testing a single small electric motor unit to be $2,000 at a third-party facility and approximately $500 at an in-house facility.
United States Census Bureau, Annual Survey of Manufacturers, 2016 for NAICS Code 335312 “Motor and Generator Manufacturing”.
Regarding electric motors, DOE is not amending the scope of applicability of the test procedure at Appendix B. Consistent with the small electric motors analysis, the incorporation of IEC 60034-2-1:2014 in this test procedure provides manufacturers additional flexibility by permitting an alternative and equivalent test procedure for measuring energy loss and would further harmonize DOE's test procedures with current industry practice and international standards. DOE expects that, for those manufacturers who are already using IEC 60034-2-1:2014, this change will reduce the number of tests that manufacturers perform by avoiding the need to conduct a test according to the CSA or IEEE methods
To calculate the testing cost reduction associated with allowing the IEC 60034-2-1:2014 method for testing electric motors, DOE employed a similar methodology to the small electric motors analysis and estimated the number of electric motor models that would not have to test to both the amended DOE test procedure and the IEC test method when brought to market. First, DOE reviewed the product catalogs of four major electric motor manufacturers published over a six-year period.
Next, DOE scaled up that annualized value based on the estimated market share of the manufacturers whose catalogs were reviewed. This scaled-up annualized value estimated the total number of new models listed for sale each year for the entire U.S. market.
DOE estimated the cost of testing a single electric motor unit to be $2,000 at a third-party facility and approximately $500 at an in-house facility. DOE requires at least five units to be tested per basic model. 10 CFR 431.17(b)(2) In addition, based on DOE's understanding that this equipment is tested both in-house and at third-party testing labs, DOE assumed an even split in testing between the two venues. Based on these estimates, DOE anticipates annual industry cost savings of approximately $127,000 for electric motors that are currently subject to the standards at 10 CFR 431.25.
The remainder of the amendments adopted in this final rule will not impact test costs. The other amendments adopted in this final rule include new definitions for “rated load,” “rated output power,” “breakdown torque,” “rated frequency,” and “rated voltage”. The addition of these definitions will improve test procedure repeatability. Furthermore, the definitions reflect current industry practice, and therefore do not impose any new requirements on manufacturers of regulated small electric motors and electric motors.
The Office of Management and Budget (“OMB”) has determined that this test procedure rulemaking does not constitute a “significant regulatory action” under section 3(f) of Executive Order (“E.O.”) 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (“OIRA”) in OMB.
On January 30, 2017, the President issued E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs.” See 82 FR 9339 (Feb. 3, 2017). E.O. 13771 stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. E.O. 13771 stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.
Additionally, on February 24, 2017, the President issued E.O. 13777, “Enforcing the Regulatory Reform Agenda.” 82 FR 12285 (March 1, 2017). E.O. 13777 required the head of each agency designate an agency official as its Regulatory Reform Officer (“RRO”). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:
(1) Eliminate jobs, or inhibit job creation;
(2) Are outdated, unnecessary, or ineffective;
(3) Impose costs that exceed benefits;
(4) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
(5) Are inconsistent with the requirements of the Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
(6) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.
DOE concludes that this rulemaking is consistent with the directives set forth in these executive orders. This final rule is estimated to result in a cost savings. The final rule yields annualized cost savings of approximately $106,000 using a perpetual time horizon discounted to 2016 at a 7 percent discount rate. Therefore, this final rule is an E.O. 13771 deregulatory action.
The Regulatory Flexibility Act (5 U.S.C. 601
These amendments would neither expand the scope of test procedure applicability to small electric motors beyond those currently subject to test procedures, nor would it place additional requirements on those small electric motors currently subject to DOE's test procedures. Furthermore, this proposal would not place any additional requirements on those electric motors that are already subject to DOE's test procedures, nor would it require manufacturers to retest existing electric motors. Accordingly, manufacturers would not be required under this rule to retest any existing small electric motors or electric motors already subject to DOE's test procedures.
These amendments would also not increase testing costs nor would it impose any additional testing burden on any manufacturers, including all small businesses. Therefore, DOE concludes that the cost effects accruing from this rule would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of a FRFA is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).
Manufacturers of electric motors must certify to DOE that their equipment comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their equipment according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and industrial equipment, including electric motors. (See generally 10 CFR part 431.) The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB control number 1910-1400. Public reporting burden for the certification is estimated to average 35 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has analyzed this action in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE has determined that this rule qualifies for categorical exclusion (“CX”) under 10 CFR part 1021, subpart D, Appendix A5 because it is an interpretive rulemaking that does not change the environmental effect of the rule and meets the requirements for application of a CX. See 10 CFR 1021.410. Therefore, DOE has determined that promulgation of this rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an environmental assessment or environmental impact statement.
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by E.O. 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of E.O. 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to
DOE has determined, under E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
This regulatory action is not a significant regulatory action under E.O. 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a rule authorizes or requires use of commercial standards, the notice of rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.
The modifications to the test procedure for small electric motors and electric motors adopted in this final rule incorporate certain testing methods contained of the following commercial standards: “IEC 60034-2-1:2014, Rotating electrical machines—Part 2-1: Standard methods for determining losses and efficiency from tests (excluding machines for traction vehicles);” IEC 60034-1:2010, “Rotating electric machines—Part 1: Rating and performance;” IEC 60051-1:2016, “Direct acting indicating analogue electrical measuring instruments and their accessories—Part 1: Definitions and general requirements common to all parts;” “IEEE 112-2017, IEEE Standard Test Procedure for Polyphase Induction Motors and Generators;” and NEMA MG 1-2016 Motors and Generators. DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
In this final rule, DOE incorporates by reference standards published by IEC, IEEE and NEMA. The IEC standard, titled “IEC 60034-2-1:2014 Rotating electrical machines—Part 2-1: Standard methods for determining losses and efficiency from tests (excluding machines for traction vehicles),” is an alternative industry standard to those currently incorporated by reference (IEEE 112-2004, IEEE 114-2010, CSA C747-09, and CSA C390-10) for measurement of small electric motor efficiency and electric motor efficiency (See section III.B for more details).
IEC 60034-2-1:2014 establishes methods of determining efficiencies from tests and to specify methods of obtaining specific losses. In addition, DOE incorporates by reference two additional IEC standards, titled “IEC 60034-1:2010, Rotating electrical machines—Part 1: Rating and performance” and “IEC 60051-1:2016, Direct acting indicating analogue measuring instruments and their accessories—Part 1: Definitions and general requirements common to all parts.” IEC 60034-1:2010 and IEC 60051-1:2016 specify test conditions and procedures that are required for application of the test methods for measurement of energy efficiency established in IEC 60034-2-1:2014.
The IEEE standard, titled “IEEE 112-2017, Test Procedure for Polyphase Induction Motors and Generators” establishes methods of measurement for current and frequency for both small electric motors and electric motors. DOE incorporates IEEE 112-2017 Test Method A and Test Method B as an update to the industry test methods that are currently incorporated by reference from IEEE 112-2004 (See section III.B for more details). Such action will harmonize the permitted test methods under subparts X (for small electric motors) and B (for electric motors) of 10 CFR part 431 and align measurement and instrumentation requirements with industry practice.
The NEMA standard, titled “NEMA MG 1-2016 Motors and Generators” establishes industry definitions for breakdown torque of small electric motors (See section III.C for more details).
In summary, DOE incorporates by reference the following standards:
(1) IEC 60034-2-1:2014, “Rotating electrical machines—Part 2-1: Standard methods for determining losses and efficiency from tests (excluding machines for traction vehicles)”.
(2) IEC 60034-1:2010, “Rotating electric machines—Part 1: Rating and performance”.
(3) IEC 60051-1:2016, “Direct acting indicating analogue electrical measuring instruments and their accessories—Part 1: Definitions and general requirements common to all parts”.
(4) IEEE 112-2017, “IEEE Standard Test Procedure for Polyphase Induction Motors and Generators”.
(5) NEMA MG 1-2016, “Motors and Generators”.
Copies of these standards can be obtained from the organizations directly at the following addresses:
• IEC, 3 rue de Varembé, 1st Floor, P.O. Box 131, CH—1211 Geneva 20—Switzerland, +41 22 919 02 11, or by visiting
• IEEE, 445 Hoes Lane, P.O. Box 1331, Piscataway, NJ 08855-1331, (732) 981-0060, or by visiting
• NEMA, 1300 North 17th Street, Suite 900, Arlington, Virginia 22209, +1 703 841 3200, or by visiting
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, Incorporation by reference, and Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on December 11, 2020, by Daniel R Simmons, Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
For the reasons stated in the preamble, DOE is amending part 431 of Chapter II of Title 10, Code of Federal Regulations as set forth as follows:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
The additions and revisions read as follows:
(a)
(c) * * *
(2) IEC 60034-1, Edition 12.0 2010-02, (“IEC 60034-1:2010”), Rotating Electrical Machines—Part 1: Rating and Performance, IBR approved for appendix B to this subpart.
(3) IEC 60034-2-1:2014, Edition 2.0 2014-06, (“IEC 60034-2-1:2014”), Rotating electrical machines—Part 2-1: Standard methods for determining losses and efficiency from tests (excluding machines for traction vehicles), IBR approved for §§ 431.12; 431.19; 431.20; appendix B to this subpart.
(6) IEC 60051-1:2016, Edition 6.0 2016-02, (“IEC 60051-1:2016”), Direct acting indicating analogue electrical measuring instruments and their accessories—Part 1: Definitions and general requirements common to all parts, IBR approved for appendix B to this subpart.
(d) * * *
(1) IEEE 112
(b) * * *
(4) It must be expert in the content and application of the test procedures and methodologies in IEEE 112-2017 Test Method B, CSA C390-10, or IEC 60034-2-1:2014 Method 2-1-1B, (incorporated by reference, see § 431.15).
(c) * * *
(4)
(b) * * *
(4) It must be expert in the content and application of the test procedures and methodologies in IEEE 112-2017 Test Method B, CSA C390-10, or IEC 60034-2-1:2014 Method 2-1-1B, (incorporated by reference, see § 431.15). It must have satisfactory criteria and procedures for the selection and sampling of electric motors tested for energy efficiency.
(c) * * *
(4)
The additions and revisions read as follows:
(a) In § 431.15, DOE incorporated by reference the entire standard for CSA C390-10, IEC 60034-1:2010, IEC 60034-2-1:2014, IEC 60051-1:2016, and IEEE 112-2017; however, only enumerated provisions of those documents are applicable as follows:
(i) CSA C390-10:
(1) Section 1.3 “Scope,” as specified in section 2(1) of this appendix;
(2) Section 3.1 “Definitions,” as specified in section 2(1) of this appendix;
(3) Section 5 “General test requirements—Measurements,” as specified in section 2(1) of this appendix;
(4) Section 7 “Test method,” as specified in section 2(1) of this appendix;
(5) Table 1 “Resistance measurement time delay,” as specified in section 2(1) of this appendix;
(6) Annex B “Linear regression analysis,” as specified in section 2(1) of this appendix; and
(7) Annex C “Procedure for correction of dynamometer torque readings” as specified in section 2(1) of this appendix.
(ii) IEC 60034-1:2010:
(1) Section 7.2 as specified in section 2(2) of this appendix;
(2) Section 8.6.2.3.3 as specified in section 2(2) of this appendix; and
(3) Table 5 as specified in section 2(2) of this appendix.
(iii) IEC 60034-2-1:2014:
(1) Method 2-1-1B as specified in section 2(2) and section 3, of this appendix;
(2) Section 3 “Terms and definitions” as specified in section 2(2) of this appendix;
(3) Section 4 “Symbols and abbreviations” as specified in section 2(2) of this appendix;
(4) Section 5 “Basic requirements” as specified in section 2(2) of this appendix; and
(5) Section 6.1.3 “Method 2-1-1B—Summation of losses, additional load losses according to the method of residual losses” as specified in section 2(2) of this appendix.
(iv) IEEE 112-2017:
(1) Test Method B, Input-Output With Loss Segregation as specified in section 2(3), section 3, and section 3.8 of this appendix;
(2) Section 3 “General” as specified in section 2(3) of this appendix;
(3) Section 4 “Measurements” as specified in section 2(3) of this appendix;
(4) Section 5 “Machine losses and tests for losses” as specified in section 2(3) of this appendix;
(5) Section 6.1 “General” as specified in section 2(3) of this appendix;
(6) Section 6.4 “Efficiency test method B—Input-output with loss segregation” as specified in section 2(3) of this appendix; and
(7) Section 9.4 “Form B—Method B”, and Section 9.5 “Form B2—Method B calculations” as specified in section 2(3) of this appendix.
(b) In § 431.15, DOE incorporated by reference the following enumerated provisions of NEMA MG 1-2009:
(i) Paragraph 12.58.1, “Determination of Motor Efficiency and Losses” as specified in the introductory paragraph to section 2 of this appendix, and
(ii) [Reserved]
(c) In cases where there is a conflict, the language of this appendix takes precedence over those documents. Any subsequent amendment to a referenced document by the standard-setting organization will not affect the test procedure in this appendix, unless and until the test procedure is amended by DOE. Material is incorporated as it exists on the date of the approval, and a notice of any change in the material will be published in the
Efficiency and losses must be determined in accordance with NEMA MG 1-2009 (incorporated by reference, see § 431.15), paragraph 12.58.1, “Determination of Motor Efficiency and Losses,” and one of the following testing methods:
(1) CSA C390-10 (incorporated by reference, see § 431.15), Section 1.3 “Scope”, Section 3.1 “Definitions”, Section 5 “General test requirements—Measurements”, Section 7 “Test method”, Table 1 “Resistance measurement time delay”, Annex B “Linear regression analysis” and Annex C “Procedure for correction of dynamometer torque readings.”
(2) IEC 60034-2-1:2014 (incorporated by reference, see § 431.15), Method 2-1-1B, Section 3 “Terms and definitions”, Section 4 “Symbols and abbreviations”, Section 5 “Basic requirements”, Section 6.1.3 “Method 2-1-1B—Summation of losses, additional load losses according to the method of residual losses.” The supply voltage shall be in accordance with section 7.2 of IEC 60034-1:2010 (incorporated by reference, see § 431.15). The measured resistance at the end of the thermal test shall be determined in a similar way to the extrapolation procedure described in section 8.6.2.3.3 of IEC 60034-1:2010, using the shortest possible time instead of the time interval specified in Table 5 therein, and extrapolating to zero. The measuring instruments for electrical quantities shall have the equivalent of an accuracy class of 0,2 in case of a direct test and 0,5 in case of an indirect test in accordance with IEC 60051-1:2016 (incorporated by reference, see § 431.15), or
(3) IEEE 112-2017, (incorporated by reference, see § 431.15), Test Method B, Input-Output With Loss Segregation, Section 3 “General”, Section 4 “Measurements”, Section 5 “Machine losses and tests for losses”, Section 6.1 “General”, Section 6.4 “Efficiency test method B—Input-output with loss segregation”, Section 9.4 “Form B—Method B”, and Section 9.5 “Form B2—Method B calculations.”
Prior to testing according to CSA C390-10, IEC 60034-2-1:2014 Method 2-1-1B, or IEEE
The revisions and additions read as follows:
(a)
(c)
(1) IEC 60034-1, Edition 12.0 2010-02, (“IEC 60034-1:2010”), Rotating electrical machines—Part 1: Rating and performance, IBR approved for §§ 431.444.
(2) IEC 60034-2-1:2014, Edition 2.0 2014-06, (“IEC 60034-2-1:2014”), Rotating electrical machines—Part 2-1: Standard methods for determining losses and efficiency from tests (excluding machines for traction vehicles), IBR approved for §§ 431.444, and 431.447.
(3) IEC 60051-1:2016, Edition 6.0 2016-02, (“IEC 60051-1:2016), Direct acting indicating analogue electrical measuring instruments and their accessories—Part 1: Definitions and general requirements common to all parts, IBR approved for §§ 431.444.
(d) * * *
(1) IEEE 112
(e)
(1) NEMA MG 1-2016, American National Standard for Motors and Generators, ANSI approved June 1, 2018, IBR approved for § 431.442.
(2) [Reserved]
(a)
(b)
(1)
(i) CSA C747-09:
(A) Section 1.6 “Scope” as specified in paragraphs (b)(2)(ii) and (b)(3)(ii) of this section;
(B) Section 3 “Definitions” as specified in paragraphs (b)(2)(ii) and (b)(3)(ii) of this section;
(C) Section 5 “General test requirements” as specified in paragraphs (b)(2)(ii) and (b)(3)(ii) of this section; and
(D) Section 6 “Test method” as specified in paragraphs (b)(2)(ii) and (b)(3)(ii) of this section.
(ii) CSA C390-10:
(A) Section 1.3, “Scope” as specified in paragraph (b)(4)(ii) of this section;
(B) Section 3.1, “Definitions” as specified in paragraph (b)(4)(ii) of this section;
(C) Section 5, “General test requirements—Measurements” as specified in paragraph (b)(4)(ii) of this section;
(D) Section 7, “Test method” as specified in paragraph (b)(4)(ii) of this section;
(E) Table 1, “Resistance measurement time delay” as specified in paragraph (b)(4)(ii) of this section;
(F) Annex B, “Linear regression analysis” as specified in paragraph (b)(4)(ii) of this section; and
(G) Annex C, “Procedure for correction of dynamometer torque
(iii) IEC 60034-1:2010:
(A) Section 7.2 as specified in paragraphs (b)(2)(iii), (b)(3)(iii), and (b)(4)(iii) of this section;
(B) Section 8.6.2.3.3 as specified in paragraphs (b)(2)(iii), (b)(3)(iii), and (b)(4)(iii) of this section; and
(C) Table 5 as specified in paragraphs (b)(2)(iii), (b)(3)(iii), and (b)(4)(iii) of this section.
(iv) IEC 60034-2-1:2014:
(A) Method 2-1-1A as specified in paragraphs (b)(2)(iii) and (b)(3)(iii) of this section;
(B) Method 2-1-1B as specified in paragraph (b)(4)(iii) of this section;
(C) Section 3 “Terms and definitions” as specified in paragraphs (b)(2)(iii), (b)(3)(iii), and (b)(4)(iii) of this section;
(D) Section 4 “Symbols and abbreviations” as specified in paragraphs (b)(2)(iii), (b)(3)(iii), (b)(4)(iii) of this section;
(E) Section 5 “Basic requirements” as specified in paragraphs (b)(2)(iii), (b)(3)(iii), and (b)(4)(iii) of this section;
(F) Section 6.1.2 “Method 2-1-1A—Direct measurement of input and output” (except Section 6.1.2.2, “Test Procedure”) as specified in paragraphs (b)(2)(iii) and (b)(3)(iii) of this section;
(G) Section 6.1.3 “Method 2-1-1B—Summations of losses, additional load losses according to the method of residual losses” as specified in paragraph (b)(4)(iii) of this section; and
(H) Annex D, “Test report template for 2-1-1B” as specified in paragraph (b)(4)(iii) of this section.
(v) IEC 60051-1:2016:
(A) Section 5.2 as specified in paragraphs (b)(2)(iii), (b)(3)(iii) and (b)(4)(iii), of this section; and
(B) [Reserved]
(vi) IEEE 112-2017:
(A) Test Method A as specified in paragraph (b)(3)(i) of this section;
(B) Test Method B as specified in paragraph (b)(4)(i) of this section;
(C) Section 3, “General” as specified in paragraphs (b)(3)(i) and (b)(4)(i) of this section;
(D) Section 4, “Measurements” as specified in paragraphs (b)(3)(i) and (b)(4)(i) of this section;
(E) Section 5, “Machine losses and tests for losses” as specified in paragraphs (b)(3)(i) and (b)(4)(i) of this section;
(F) Section 6.1, “General” as specified in paragraphs (b)(3)(i) and (b)(4)(i) of this section;
(G) Section 6.3, “Efficiency test method A—Input-output” as specified in paragraph (b)(3)(i) of this section;
(H) Section 6.4, “Efficiency test method B—Input-output” as specified in paragraph (b)(4)(i) of this section;
(I) Section 9.2, “Form A—Method A” as specified in paragraph (b)(3)(i) of this section;
(J) Section 9.3, “Form A2—Method A calculations” as specified in paragraph (b)(3)(i) of this section;
(K) Section 9.4, “Form B—Method B” as specified in paragraph (b)(4)(i) of this section; and
(L) Section 9.5, “Form B2—Method B calculations” as specified in paragraph (b)(4)(i) of this section.
(vii) IEEE 114-2010:
(A) Section 3.2, “Test with load” as specified in paragraph (b)(2)(i) of this section;
(B) Section 4, “Testing Facilities as specified in paragraph (b)(2)(i) of this section;
(C) Section 5, “Measurements” as specified in paragraph (b)(2)(i) of this section;
(D) Section 6, “General” as specified in paragraph (b)(2)(i) of this section;
(E) Section 7, “Type of loss” as specified in paragraph (b)(2)(i) of this section;
(F) Section 8, “Efficiency and Power Factor” as specified in paragraph (b)(2)(i) of this section;
(G) Section 10 “Temperature Tests” as specified in paragraph (b)(2)(i) of this section;
(H) Annex A, Section A.3 “Determination of Motor Efficiency” as specified in paragraph (b)(2)(i) of this section; and
(I) Annex A, Section A.4 “Explanatory notes for form 3, test data” as specified in paragraph (b)(2)(i) of this section.
(viii) In cases where there is a conflict, the language of this appendix takes precedence over those documents. Any subsequent amendment to a referenced document by the standard-setting organization will not affect the test procedure in this appendix, unless and until the test procedure is amended by DOE.
(2)
(i) IEEE 114-2010, Section 3.2, “Test with load”, Section 4, “Testing Facilities, Section 5, “Measurements”, Section 6, “General”, Section 7, “Type of loss”, Section 8, “Efficiency and Power Factor”; Section 10 “Temperature Tests”, Annex A, Section A.3 “Determination of Motor Efficiency”, Annex A, Section A.4 “Explanatory notes for form 3, test data”;
(ii) CSA C747-09, Section 1.6 “Scope”, Section 3 “Definitions”, Section 5, “General test requirements”, and Section 6 “Test method”;
(iii) IEC 60034-2-1:2014 Method 2-1-1A, Section 3 “Terms and definitions”, Section 4 “Symbols and abbreviations”, Section 5 “Basic requirements”, and Section 6.1.2 “Method 2-1-1A—Direct measurement of input and output” (except Section 6.1.2.2, “Test Procedure”). The supply voltage shall be in accordance with section 7.2 of IEC 60034-1:2010 (incorporated by reference, see § 431.443). The measured resistance at the end of the thermal test shall be determined in a similar way to the extrapolation procedure described in section 8.6.2.3.3 of IEC 60034-1:2010, using the shortest possible time instead of the time interval specified in Table 5 therein, and extrapolating to zero. The measuring instruments for electrical quantities shall have the equivalent of an accuracy class of 0,2 in case of a direct test and 0,5 in case of an indirect test in accordance with section 5.2 of IEC 60051-1:2016 (incorporated by reference, see § 431.443).
(A)
If using IEC 60034-2-1:2014 Method 2-1-1A to measure motor performance, follow the instructions in paragraph (b)(2)(iii)(B) of this section, instead of section 6.1.2.2 of IEC 60034-2-1:2014;
(B) Couple the machine under test to a load machine. Measure torque using an in-line, shaft-coupled, rotating torque transducer or stationary, stator reaction torque transducer. Operate the machine under test at the rated load until thermal equilibrium is achieved (rate of change 1 K or less per half hour). Record U, I, Pel, n, T, θc.
(3)
(i) IEEE 112-2017 Test Method A, Section 3, “General”, Section 4, “Measurements”, Section 5, “Machine losses and tests for losses”, Section 6.1, “General”, Section 6.3, “Efficiency test method A—Input-output”, Section 9.2, “Form A—Method A”, and Section 9.3, “Form A2—Method A calculations”;
(ii) CSA C747-09, Section 1.6 “Scope”, Section 3 “Definitions”, Section 5, “General test requirements”, and Section 6 “Test method”;
(iii) IEC 60034-2-1:2014 Method 2-1-1A, Section 3 “Terms and definitions”, Section 4 “Symbols and abbreviations”, Section 5 “Basic requirements”, and Section 6.1.2 “Method 2-1-1A—Direct measurement of input and output” (except Section 6.1.2.2, “Test Procedure”). The supply voltage shall be in accordance with section 7.2 of IEC 60034-1:2010. The measured resistance at the end of the thermal test shall be determined in a similar way to the
(A)
If using IEC 60034-2-1:2014 Method 2-1-1A to measure motor performance, follow the instructions in paragraph (b)(3)(iii)(B) of this section, instead of section 6.1.2.2 of IEC 60034-2-1:2014;
(B) Couple the machine under test to load machine. Measure torque using an in-line shaft-coupled, rotating torque transducer or stationary, stator reaction torque transducer. Operate the machine under test at the rated load until thermal equilibrium is achieved (rate of change 1 K or less per half hour). Record U, I, Pel, n, T, θc.
(4)
(i) IEEE 112-2017 Test Method B, Section 3, “General”; Section 4, “Measurements”; Section 5, “Machine losses and tests for losses”, Section 6.1, “General”, Section 6.4, “Efficiency test method B—Input-output with loss segregation”, Section 9.4, “Form B—Method B”, and Section 9.5, “Form B2—Method B calculations”; or
(ii) CSA C390-10, Section 1.3, “Scope”, Section 3.1, “Definitions”, Section 5, “General test requirements—Measurements”, Section 7, “Test method”, Table 1, “Resistance measurement time delay, Annex B, “Linear regression analysis”, and Annex C, “Procedure for correction of dynamometer torque readings”; or
(iii) IEC 60034-2-1:2014 Method 2-1-1B Section 3 “Terms and definitions”, Section 4 “Symbols and abbreviations”, Section 5 “Basic requirements”, Section 6.1.3 “Method 2-1-1B—Summation of losses, additional load losses according to the method of residual losses.”, and Annex D, “Test report template for 2-1-1B. The supply voltage shall be in accordance with section 7.2 of IEC 60034-1:2010. The measured resistance at the end of the thermal test shall be determined in a similar way to the extrapolation procedure described in section 8.6.2.3.3 of IEC 60034-1:2010 using the shortest possible time instead of the time interval specified in Table 5 therein, and extrapolating to zero. The measuring instruments for electrical quantities shall have the equivalent of an accuracy class of 0,2 in case of a direct test and 0,5 in case of an indirect test in accordance with section 5.2 of IEC 60051-1:2016.
(b) * * *
(4) It must be expert in the content and application of the test procedures and methodologies in IEEE 112-2017 Test Method A, IEEE 112-2017 Test Method B, IEEE 114-2010, IEC 60034-2-1:2014 Method 2-1-1A, IEC 60034-2-1:2014 Method 2-1-1B, CSA C390-10, or CSA C747-09 (incorporated by reference, see § 431.443) or similar procedures and methodologies for determining the energy efficiency of small electric motors. It must have satisfactory criteria and procedures for the selection and sampling of electric motors tested for energy efficiency.
(c) * * *
(4)
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective January 4, 2021. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of January 4, 2021.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, email
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg 29 Room 104, Oklahoma City, OK 73169. Telephone: (405) 954-4164.
This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPS) and associated Takeoff Minimums and Obstacle Departure procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective January 4, 2021. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of January 4, 2021.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30. 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg 29 Room 104, Oklahoma City, OK 73169. Telephone (405) 954-4164.
This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CRF part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
U.S. Citizenship and Immigration Services, Department of Homeland Security; and Office of the Secretary, Employment and Training Administration, and Wage and Hour Division, Department of Labor.
Notice of proposed rulemaking.
The Department of Homeland Security and the Department of Labor (DOL) are jointly issuing this notice of proposed rulemaking to seek public comments on a proposal to extend DOL's recently established system of discretionary Secretary of Labor review to H-2B temporary labor certification cases (H-2B cases) pending before or decided by the Department of Labor's Board of Alien Labor Certification Appeals and to make technical, conforming changes to regulations governing the timing and finality of those decisions and of decisions from the Department of Labor's Administrative Review Board in H-2B cases.
The Departments invite interested persons to submit comments on the proposed rule. To ensure consideration, comments must be in writing and must be received by January 19, 2021.
You may send comments, identified by Regulatory Identification Number (RIN) 1290-AA43, electronically only, consistent with the following instructions. Submit comments, read background documents, and read comments received through the Federal eRulemaking Portal at
Therefore, the Departments recommend that commenters safeguard their personal information by not including social security numbers, personal addresses, telephone numbers, and email addresses in comments. It is the responsibility of the commenters to safeguard their information.
If you need assistance to review the comments of the rulemaking, the Department will consider providing the comments and the proposed rule in other formats upon request. For assistance to review the comments or obtain the direct final rule in an alternate format, contact Mr. Todd Smyth, General Counsel, U.S. Department of Labor, at (513) 684-3252.
Todd Smyth, General Counsel, U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW, Washington, DC 20001-8002; telephone (513) 684-3252. Individuals with hearing or speech impairments may access the telephone number above by TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
This preamble is divided into five sections: Section I describes the process of rulemaking using a direct final rule with a companion proposed rule; Section II provides general background information on the proposed rulemaking; Section III summarizes the proposed regulatory text; Section IV covers the administrative requirements for this proposed rulemaking; and Section V provides additional information and instructions to those wishing to comment on the rule.
This proposed rule is not expected to be an Executive Order 13771 regulatory action because it is not significant under Executive Order 12866. Pursuant to the Congressional Review Act (5 U.S.C. 801
The Department of Homeland Security (DHS) and Department of Labor (DOL) (collectively, the Departments) are simultaneously publishing with this proposed rule an identical “direct final” rule elsewhere in this issue of the
The Departments have determined that this rule is suitable for direct final rulemaking. The proposed revision to DOL's internal adjudicatory processes would implement the mechanism by which the Secretary of Labor can review H-2B cases pending before or decided by the Board of Alien Labor Certification Appeals (BALCA) and decisions of the Administrative Review Board (ARB)—a power the Secretary already possesses with respect to other cases pending before or decided by BALCA under DOL's recent final rule,
The comment period for this proposed rule runs concurrently with the comment period for the direct final rule. Any comments received in response to this proposed rule will also be considered comments regarding the direct final rule and vice versa. For purposes of this rulemaking, a significant adverse comment is one that addresses (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment counsels in favor of withdrawal of the direct final rule, the Departments will consider whether the comment raises an issue serious enough to warrant a substantive response. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how the direct final rule would be ineffective or unacceptable without the addition.
The Departments request comments on all issues related to this rule, including economic or other regulatory impacts of this rule on the public.
BALCA has authority over appeals from the decisions of the Employment and Training Administration's adjudication of foreign labor certification applications. It was created by regulation to exercise delegated authority on behalf of the Secretary of Labor. Its existence is neither compelled nor governed by statute, and it is entrusted with the power to issue final agency decisions in the name of the Secretary of Labor. Earlier this year, DOL issued regulations establishing a mechanism by which the Secretary of Labor can exercise review of decisions issued by BALCA on his behalf in the H-2A, CW-1, and PERM programs. This rule will apply the same mechanism for review over decisions issued by BALCA in the H-2B program.
To ensure that the Secretary of Labor has the ability to properly supervise and direct the actions of the Department he supervises, earlier this year the Secretary also established a system of discretionary secretarial review over the decisions of the ARB.
This proposal, like those actions undertaken earlier this year, preserves the existing structures by which DOL processes adjudications while giving the Secretary of Labor the option, in his sole discretion, to initiate review directly. As with DOL's existing mechanisms of secretarial review, under this reform the Secretary will rely on BALCA to assist him in identifying cases where secretarial review may be warranted. Also consistent with current practices at DOL and other agencies, the Departments do not anticipate that the power of secretarial review over H-2B cases will be used often. The Departments similarly anticipate that secretarial review—while completely within the Secretary of Labor's discretion as the principal officer accountable for DOL's activities—will typically be reserved for matters of significant importance. Finally, DOL will ensure that the secretarial review process will continue to be accomplished in a manner that complies with any applicable legal requirements.
The Departments appreciate the expeditious nature of BALCA proceedings involving temporary labor certifications and, as with the existing system of review, do not anticipate that secretarial review over H-2B cases will significantly disrupt or otherwise impede the way such cases are currently processed. As noted above, the Departments expect that secretarial review over BALCA's H-2B decisions will likely not be exercised often. Further, BALCA decisions will remain the Secretary of Labor's final administrative decision unless the Secretary himself assumes jurisdiction over the case. For example, once BALCA issues a decision that grants a labor certification or remands for further processing, the private party in the case will be able to proceed immediately to the next step of the application process. The private party will be delayed in doing so only if the Secretary of Labor later decides to undertake review. Moreover, as it does now, 29 CFR 18.95 will continue to limit any potential uncertainty that may exist because of the possibility of secretarial review by placing strict time limits on when the Secretary of Labor will have the option of assuming jurisdiction over a case.
As noted in the DOL's prior rulemaking establishing secretarial review over other BALCA cases, 85 FR 30608, the Departments have determined that it is appropriate to issue jointly this rule regarding the Secretary of Labor's review authority over H-2B cases under 29 CFR 18.95. This determination follows conflicting court decisions concerning DOL's authority to issue legislative rules on its own to carry out its duties in the H-2B program. Although the Departments each have authority to issue rules implementing their respective duties in the H-2B program, including rules providing for secretarial review, the Departments are proposing to make the amendments to the applicable regulations jointly to ensure that there can be no question about the authority underlying such amendments. This approach is consistent with the joint
This rule proposes revisions to 29 CFR part 18 by modifying the conditions under which an H-2B decision of BALCA becomes the final decision of DOL and by extending to H-2B cases the process by which the Secretary of Labor may exercise discretionary review over cases pending before or decided by the BALCA. Technical amendments are also made to 20 CFR part 655, subpart A to harmonize the manner in which BALCA issues decisions on behalf of the Secretary with the system of discretionary review established in 29 CFR part 18. Additionally, this rule proposes to modify or remove the reference to “final” decisions of the ARB in 20 CFR 655.73(g)(6) and 29 CFR 503.55 to reflect that the finality of ARB decisions is governed by Secretary of Labor's Order 01-2020.
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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule has been drafted and reviewed in accordance with Executive Order 12866. The Departments, in coordination with the Office of Management and Budget (OMB), determined that this proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866 because the rule will not have an annual effect on the economy of $100 million or more; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; and will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.
Accordingly, OMB has waived review.
Because no notice of proposed rulemaking is required for this rule under section 553 of the Administrative Procedure Act, the regulatory flexibility analysis requirements of the Regulatory Flexibility Act, 5 U.S.C. 603, 604, do not apply to this rule.
The Departments have determined that this proposed rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
The Departments have reviewed this proposed rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
The Departments have reviewed this proposed rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, has delegated the authority to electronically sign this document to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS, for purposes of publication in the
This proposed rule addresses matters of internal agency management and personnel, as well as matters of agency organization, practice and procedure, and consequently are exempt from the notice and public comments requirements of the Administrative Procedure Act.
Please be advised that the Departments will generally post all comments without making any change to the comments, including any personal information provided. The
In addition to all comments received by the Departments being accessible on
Individuals with hearing or speech impairments may access the telephone number above by TTY by calling the
Administrative practice and procedure, Labor certification processes for temporary employment.
Administrative practice and procedure, Labor.
Administrative practice and procedure, Obligations, Enforcement, Immigration and Nationality Act, Temporary alien non-agricultural workers.
For the reasons discussed in the joint preamble, part 655 of title 20 of the Code of Federal Regulations and parts 18 and 503 of title 29 of the Code of Federal Regulations are proposed to be amended as follows:
Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), (p), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), (p), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
(e)
(1) Affirm the CO's determination; or
(2) Reverse or modify the CO's determination; or
(3) Remand to the CO for further action.
(b) * * *
(3)
(g) * * *
(6)
5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.
(b) * * *
(1) In any case for which administrative review is sought or handled in accordance with 20 CFR 655.61, 655.171(a), or 655.461, at any point from when the BALCA receives a request for review until the passage of 10 business days after the date on which BALCA has issued its decision.
8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR 214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at § 701.
The ARB's decision will be issued within 90 days from the notice granting the petition and served upon all parties and the ALJ.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone on certain waters of Garrison Channel, Seddon Channel Turning Basin, and the Hillsborough River, in the vicinity of downtown Tampa, Florida during the Super Bowl LV celebrations from January 29, 2021, through February 7, 2021. The safety zone is necessary to protect the public and Super Bowl event
Comments and related material must be received by the Coast Guard on or before February 3, 2021.
You may submit comments identified by docket number USCG-2020-0691 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Marine Science Technician First Class Michael D. Shackleford, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
On September 22, 2020, the Maritime Subcommittee for Super Bowl LV notified the Coast Guard that during the Super bowl LV event celebrations there will be several planned Super Bowl-related events throughout the waterfront areas of Tampa, FL. These events will occur at various times from January 29, 2021 through February 7, 2021. These events could lead to large gatherings of persons and vessels in waterways around the Tampa area. The Captain of the Port St. Petersburg (COTP) has determined that the potential hazards associated with persons and vessel congestion within the proposed safety zone during these events is a safety concern.
The purpose of this rulemaking is to ensure the safety of vessels and persons and the navigable waters within the safety zone before, during, and after the scheduled events. The Coast Guard is proposing this rulemaking under the authority in 46 U.S.C. 70034.
The COTP Saint Petersburg is proposing a safety zone from January 29, 2021, through February 7, 2021. The safety zone would cover certain navigable waters of Garrison Channel, Seddon Channel Turning Basin, and the Hillsborough River, in the vicinity of downtown Tampa, Florida. The duration of the zone is intended to ensure the safety of persons, vessels, and navigable waters before, during, and after the scheduled events. All persons and vessels would be required to transit through the safety zone at a steady speed and may not slow down, stop or anchor except in the case of unforeseen mechanical failure or other emergency unless given prior authorization from the COTP. Any person or vessel forced to slow or stop in the established zone must immediately notify the Captain of the Port Tampa via VHF channel 16.
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, scope and duration of the safety zone. The rule will impact only a small designated area of Garrison Channel, Seddon Channel Turning Basin, and the Hillsborough River in the vicinity of downtown Tampa, Florida, and vessel traffic will be able to safely operate in the area with minimal restrictions, hence the safety zone is limited in size and location. Vessels will be able to transit through the safety zone at a steady speed, making it limited in scope. The safety zone will be in effect for ten days, making it limited in duration. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM Channel 16 about the safety zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting 10 days that would restrict certain aspects of navigation on certain waters in the vicinity of Tampa, Florida within the safety zone. Normally such actions are 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 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 is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034; 46 U.S.C. 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) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
National Institute of Standards and Technology (NIST), United States Department of Commerce.
Notice of proposed rulemaking.
The National Institute of Standards and Technology (NIST) requests comments on proposed revisions to regulations that would further the Return on Investment (ROI) Initiative for Unleashing American Innovation. The proposed revisions to “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements” and “Licensing of Government-Owned Inventions” make technical corrections; reorganize certain subsections; remove outdated and/or unnecessary sections; institute a reporting requirement on Federal agencies; and provide clarifications on definitions, communications, scope of march-in rights, filing of provisional patent applications, electronic filing, the purpose of royalties on government licenses, and the processes for granting exclusive, co-exclusive and partially exclusive licenses and for appeals. NIST intends to hold a webinar regarding the proposed changes and information on that webinar will be available to the public at
Submit your comments, identified by docket identification (ID) number: 201207-0327, through the
Courtney Silverthorn, via email:
This action may be of interest to you if you are an educational institution, company, or nonprofit organization, especially one that has received or would like to receive Federal funding for scientific research and development.
These proposed rule revisions are promulgated under the University and Small Business Patent Procedures Act of 1980, Public Law 96-517 (as amended), codified at title 35 of the United States Code (U.S.C.) 200
The Secretary of Commerce has delegated to the Director of NIST the authority to promulgate implementing regulations. Regulations implementing 35 U.S.C. 200 through 204 are codified at 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms under Government Grants, Contracts, and Co-operative Agreements,” and apply to all Federal agencies, 37 CFR 401.1(b). These regulations govern all subject inventions under Bayh-Dole, 37 CFR 401.2(d), even if the Federal Government is not the sole source of funding for either the conception or the reduction to practice, 37 CFR 401.1(a). Regulations implementing 35 U.S.C. 208, specifying the terms and conditions upon which federally owned inventions, other than inventions owned by the Tennessee Valley Authority, may be licensed on a nonexclusive, partially exclusive, or exclusive basis, are codified at 37 CFR part 404, “Licensing of Government Owned Inventions.”
Bayh-Dole and its implementing regulations require Federal funding agencies to employ certain “standard clauses” in funding agreements awarded to contractors, except under certain specified conditions; 37 CFR 401.3. Through these standard clauses, set forth at 37 CFR 401.14(a), contractors are obligated to take certain actions to properly manage subject inventions. These actions include disclosing each subject invention to the Federal agency within two months after the contractor's inventor discloses it in writing to contractor personnel responsible for patent matters, 37 CFR 401.14(c)(1); electing in writing whether or not to retain title to any subject invention by notifying the Federal agency within two years of disclosure, 37 CFR 401.14(c)(2); filing an initial patent application on a subject invention as to which the contractor elects to retain title within one year after election, 37 CFR 401.14(c)(3); executing and promptly delivering to the Federal agency all instruments necessary to establish or confirm the rights the Government has throughout the world in those subject inventions to which the contractor elects to retain title, 37 CFR 401.14(f)(1); requiring, by written agreement, the contractor's employees to disclose promptly in writing each subject invention made under contract, 37 CFR 401.14(f)(2); notifying the Federal agency of any decision not to continue the prosecution of a patent application, 37 CFR 401.14(f)(3); and including in the specification of any U.S. patent
In addition, a contractor is obligated to include the requirements of the standard clauses in any subcontracts under the contractor's award, 37 CFR 401.14(g); to submit periodic reports as requested on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the contractor or its licensees or assignees, 37 CFR 401.14(h); and to agree that neither the contractor nor any assignee will grant to any person the exclusive right to use or sell any subject inventions in the United States unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States, 37 CFR 401.14(i), subject to waiver.
Bayh-Dole and its implementing regulations also specify certain conditions applicable to licenses granted by Federal agencies in any federally owned invention. The implementing regulations include 37 CFR 404.5, which sets forth restrictions and conditions applicable to all Federal agency licenses, 37 CFR 404.6, which addresses requirements pertaining to nonexclusive licenses, and 37 CFR 404.7, which addresses requirements pertaining to exclusive and partially exclusive licenses.
Pursuant to authority delegated to it by the Secretary of Commerce, NIST is providing notice to the public of a proposed rulemaking to revise Parts 401 and 404 of Title 37 of the Code of Federal Regulations which address rights to inventions made under Government grants, contracts, and cooperative agreements, and licensing of government owned inventions. NIST is seeking public comments on the proposed amendments. Brief explanations of the proposed changes are included below; the full text of 37 CFR part 401 is available at
In 2018, NIST undertook a large-scale stakeholder engagement effort to inform the development of the Lab-to-Market Cross Agency Priority (CAP) goal, part of the 2018 President's Management Agenda. The Lab-to-Market CAP goal's stated purpose is to “. . .improve the transition of federally funded innovations from the laboratory to the marketplace by reducing the administrative and regulatory burdens for technology transfer and increasing private sector investment in later-stage research and development (R&D); develop and implement more effective partnering models and technology transfer mechanisms for Federal agencies; and enhance the effectiveness of technology transfer by improving the methods for evaluating the ROI and economic and national security impacts of federally funded R&D, and using that information to focus efforts on approaches proven to work.”
Beginning in April 2018, NIST utilized a number of avenues to seek input from the public on ways to improve federal technology transfer and the commercialization of federally funded inventions. These included a Request for Information that NIST published in the
The Green Paper described 15 findings from NIST's stakeholder engagement process that may have the potential to “unleash American innovation” and advance the goals of Lab-to-Market through regulatory or legislative changes, updates to policy and guidance, and the development of new tools and services. In addition to the overall Lab-to-Market strategy to “Identify regulatory impediments and administrative improvements in Federal technology transfer policies and practices” (which supports the Administration's stated goal to streamline and reduce regulatory burdens), seven of the Green Paper's 15 findings noted potential changes to the Bayh-Dole implementing regulations that could improve compliance, enhance a contractor's ability to commercialize subject inventions, and increase the return on investment of Federal funding through new goods and services to the public. Four of those seven findings are considered in this notice of proposed rulemaking (NPRM or proposed rule).
As part of the overall streamlining effort in this proposed rule, some outdated or redundant text has been proposed for removal. This includes §§ 401.1(a), 401.1(c), 401.1(d), 401.1(f), 401.3(g), 401.8, 401.11(a), 401.11(b)(5), 401.13(b) and 404.4. Other text has been moved or substantially reincorporated into new sections in the proposed rule as follows: § 401.5(f) moved to § 401.14(c)(1) and (3); §§ 401.7 and 401.14(m) incorporated into §§ 401.14(k)(4) through (6); § 401.13(a) moved to § 401.14(c)(6); § 401.15 incorporated into § 401.9; § 401.16 moved to § 401.14(m); § 404.2 incorporated into § 404.1(b); and § 404.4 incorporated into § 404.5(g).
In addition to these changes and technical corrections throughout the regulation, the proposed revisions to 37 CFR part 401 will:
(1) Clarify in § 401.1 the scope of the regulation and applicability to large businesses unless otherwise directed by statute, and remove the outdated requirement for multiple copies of agency regulations to be submitted to the Secretary prior to OMB review.
(2) Update the definitions of
(3) Update the definitions of
(4) Update § 401.5(a) to reflect that modifications to paragraph § 401.14(g) are no longer needed due to the applicability of 37 CFR part 401 to all businesses regardless of size pursuant to E.O. 12591.
(5) Revise § 401.5(b) for clarity by removing the ambiguity of “instructions” to the agency versus “instructions” to the contractor.
(6) Revise the existing text at § 401.6(b) [new § 401.6(a)(1)] to clarify the informal agency consultation process with the contractor prior to the exercise of march-in rights, and increase the allowable time frame an agency has
(7) Clarify § 401.6 to include a provision that march-in rights shall not be exercised by an agency exclusively on the basis of business decisions of a contractor regarding the pricing of commercial goods and services arising from the practical application of the invention.
(8) Revise § 401.9 to clarify the statutory authority and process for assigning rights to an employee/inventor, and to clarify said employee/inventor's responsibilities under 37 CFR part 401 when receiving an assignment of rights to a subject invention made under a funding agreement, and incorporate streamlined text from § 401.15 to clarify the process by which a contractor may make a request for greater rights in an invention when the funding agreement contains an alternate provision in accordance with § 401.3(a)(2), and remove the requirement for an agency to reimburse the contractor for the costs of filing a patent application while a greater rights request is under review.
(9) Revise § 401.13 to streamline the text and clarify the confidentiality of contractor submissions made under § 401.14(c) as it relates to Freedom of Information Act requests, copies of documents filed with a patent office, and agency policies on public dissemination of results supported by agency funding programs.
(10) Revise § 401.14(c)(3) to clarify the procedures for filing more than one provisional patent application on a disclosed subject invention.
(11) Revise § 401.14(d) to add a new paragraph permitting agencies, at their discretion, to release the contractor from the requirement to waive title to the agency after one of the conditions in § 401.14(d) has occurred.
(12) Revise § 401.14(k) to streamline the requirements for small business considerations into a single section by incorporating language from §§ 401.7 and 401.14(m).
(13) Move the electronic filing requirements from § 401.16 into the standard clause at § 401.14; update the requirements to include that if the patent information and periodic reports in § 401.14(c)(3) and/or the close-out report § 401.14(c)(1) are required by an agency, they will be electronically filed unless otherwise directed by the agency; and permit other written notices to be electronically transmitted between the contractor and the agency.
(14) Implement a requirement [new § 401.16] for federal agencies to report annually on activities under 37 CFR part 401, including the number of subject inventions reported, the number of patent applications filed on reported subject inventions, the number of issued patents on subject inventions, the number of requests made and granted for extensions of time under § 401.14(c)(5), the number of subject inventions to which title has been conveyed to the Government, the number of requests made and granted for a waiver of the preference for U.S. industry requirement, and the number of requests for assignment of invention rights.
(15) Remove the telephone number for the Interagency Edison service center so that contact information can be updated in a timelier fashion via the iEdison website.
This proposed rulemaking does not address government assignment to contractor of rights in invention of government employee (§ 401.10) or licensing of background rights to third parties (§ 401.12).
In addition to the aforementioned streamlining changes and technical corrections throughout the regulation, the proposed revisions to 37 CFR part 404 will:
(1) Revise § 404.1 to clarify that licensing royalties are not considered an augmentation of appropriated funds.
(2) Revise § 404.2 to clarify the link between establishing patent license financial terms and the goal of promoting commercial use, by noting that the government may consider licensing payments as a means to ensure commercialization by the licensee and thus promote the practical application of a subject invention.
(3) Streamline § 404.7 by removing duplicative sections and revising the paragraph to align the process for granting exclusive, co-exclusive and partially exclusive licenses with the requirements of 35 U.S.C. 209 as it pertains to the required information and publication site for a notice of intent to grant an exclusive license, the requirement to consider the interests of the Federal Government or United States industry in foreign commerce before granting an exclusive license on a foreign patent application or patent, and the additional provisions that apply to exclusive licenses beyond the requirements of § 404.5.
(4) Revise § 404.10 to remove the requirement that a Federal agency notify sublicensees of an intent to modify or terminate a license.
(5) Revise § 404.11 to clarify who has standing to appeal the grant, denial, modification, or termination of a license by limiting a claim of damage by the agency's granting of an exclusive license to that which denies a party the opportunity to promote the commercialization of an invention, and by requiring all agencies to establish procedures for considering appeals.
This proposed rulemaking does not address definitions (§ 404.3), nonexclusive licenses (§ 404.6), application for a license (§ 404.8), protection and administration of inventions (§ 404.12), or transfer of custody (§ 404.13).
NIST is requesting comments about 37 CFR parts 401 and 404 of the Bayh-Dole regulations. We have included some questions that you might consider as you develop your comments:
1. Are there any changes to these regulations, consistent with current law, that you or your organization think would accelerate the transfer of federally funded research and technology to entrepreneurs, or otherwise strengthen the Nation's innovation system?
2. Are there specific revisions to the language in § 401.14(b) that could help clarify the existing scope of the Government Use License for owners and licensees working to achieve practical application of subject inventions?
3. Are there provisions within 37 CFR part 401 or 404 that are inconsistent with, or otherwise affected by, changes in the patent laws under the Leahy-Smith America Invents Act, Public Law 112-29, or that Act's implementing regulations?
When submitting comments, remember to:
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Please organize your comments by referencing the specific question you are responding to or the relevant section number in the proposed regulatory text.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. Provide specific examples to illustrate your concerns and suggest alternatives.
vi. Explain your views as clearly as possible.
vii. All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. NIST reserves the right to publish relevant comments publicly, unedited and in their entirety. Personal information, such as account numbers
viii. Make sure to submit your comments by the comment period deadline identified.
ix. The following formats are preferred for comment submissions: .doc or .docx, .pdf, and .txt.
This rulemaking is a significant regulatory action under Executive Order 12866. This rulemaking, however, is not an “economically significant” regulatory action under section 3(f)(1) of the Executive order, as it does not have an effect on the economy of $100 million or more in any one year, and it does not have a material adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
This proposed rule does not contain policies with federalism implications as defined in Executive Order 13132.
This final rule is considered to be an E.O. 13771 deregulatory action. The proposed regulation is deregulatory in that it is removing duplicative text and streamlining and/or reducing regulatory burdens, all at no additional cost.
The Regulatory Flexibility Act (RFA) requires the preparation and availability for public comment of “an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rulemaking, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:
A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble and in the
The information provided above supports a determination that this proposed rule would not have a significant economic impact on a substantial number of small entities. Because this rulemaking, if implemented, is not expected to have a significant economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
This proposed rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. 3501
This proposed rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.
Inventions and patents, Laboratories, Research and development, Science and technology, Technology transfer.
For the reasons stated in the preamble, the National Institute of Standards and Technology proposes to amend 37 CFR parts 401 and 404 as follows:
35 U.S.C. 206; DOO 30-2A.
(a) This part implements 35 U.S.C. 200 through 204 and is applicable to any funding agreement with a nonprofit organization or small business firm as defined by 35 U.S.C. 201, except for an agreement made primarily for educational purposes under 35 U.S.C. 212. This part also applies to any funding agreement with business firms regardless of size in accordance with section 1, paragraph (b)(4) of Executive Order 12591, as amended by Executive Order 12618, unless directed otherwise pursuant to NASA or DOE vesting statutes.
(b) This regulation supersedes OMB Circular A-124 and shall take precedence over any regulations or other guidance dealing with ownership of inventions made by businesses and nonprofit organizations which are inconsistent with it. Only deviations requested by a contractor and not inconsistent with Chapter 18 of Title 35, United States Code, may be made without approval of the Secretary. Modifications or tailoring of clauses as authorized by § 401.5 or 401.3, when alternate provisions are used under § 401.3(a)(1) through (6), are not considered deviations requiring the Secretary's approval.
(c) This part is not intended to apply to arrangements under which nonprofit organizations, small business firms, or others are allowed to use government-owned research facilities and normal technical assistance provided to users of those facilities, whether on a reimbursable or nonreimbursable basis. This part is also not intended to apply to arrangements under which sponsors reimburse the government or facility contractor for the contractor employee's time in performing work for the sponsor. Such arrangements are not considered “funding agreements” as defined at 35 U.S.C. 201(b) and § 401.2(a).
In addition to the definitions in 35 U.S.C. 201, as used in this part—
(k) The term
(l) The term
(m) The term
(1) A United States provisional application as defined in 37 CFR 1.9(a)(2) and filed under 35 U.S.C. 111(b); or
(2) A United States nonprovisional application as defined in 37 CFR 1.9(a)(3) and filed under 35 U.S.C. 111(a); or
(3) A patent application filed in a foreign country or an international patent office; or
(4) A patent application filed under the Patent Cooperation Treaty as defined in 37 CFR 1.9(b) which designates the United States; or
(5) An application for a Plant Variety Protection certificate.
(n) The term
(1) The first United States provisional application as defined in 37 CFR 1.9(a)(2) and filed under 35 U.S.C. 111(b); or
(2) The first United States nonprovisional application as defined in 37 CFR 1.9(a)(3) and filed under 35 U.S.C. 111(a); or
(3) The first patent application filed in a foreign country or an international patent office; or
(4) The first patent application filed under the Patent Cooperation Treaty as defined in 37 CFR 1.9(b) which designates the United States; or
(5) The first application for a Plant Variety Protection certificate.
(o) The term
The revisions read as follows:
(a) Agencies should complete the blank in paragraph (g)(2) of the clauses at § 401.14 in accordance with their own or applicable government-wide regulations such as the Federal Acquisition Regulation. If the funding agreement is a grant or cooperative agreement, paragraph (g)(3) of the clause may be deleted.
(b) Agencies should complete paragraph (l) of the clause in § 401.14, “Communication” by designating a central point of contact for communications on matters relating to the clause. Agencies may also include additional information on communications in paragraph (l) of the clause in § 401.14.
(g) If the contract is for the operation of a government-owned facility, agencies may add paragraph (f)(6) to the clause at § 401.14 with the following text:
The contractor shall establish and maintain active and effective procedures to ensure that subject inventions are promptly identified and timely disclosed and shall submit a description of the procedures to the
The revisions and additions read as follows:
(a) * * *
(1) Whenever an agency receives information that it believes might warrant the exercise of march-in rights, before initiating any march-in proceeding, it shall notify the contractor in writing (including electronic means) of the information and request an informal consultation and information relevant to the matter with the contractor to understand the nature of the issue and consider possible actions other than exercising march-in rights. In the absence of response from the contractor to the agency request for informal consultation within 30 days, the agency may, at its discretion, proceed with the procedures below. If informal consultation occurs within 30 days, or later if the agency has not initiated the procedures below, then the agency shall, within 120 days after informal consultation, either notify the contractor of the initiation of the procedures below with a summary of the efforts taken, or notify the contractor, in writing, that it will not pursue march-in rights on the basis of the available information.
(2) A march-in proceeding shall be initiated by the issuance of a written notice by the agency to the contractor and its assignee or exclusive licensee, as applicable and if known to the agency, stating that the agency is considering the exercise of march-in rights. The notice shall state the reasons for the proposed march-in in terms sufficient to put the contractor on notice of the facts upon which the action would be based and shall specify the field or fields of use in which the agency is considering requiring licensing. The notice shall advise the contractor (assignee or exclusive licensee) of its rights, as set forth in this section and in any supplemental agency regulations. The determination to exercise march-in rights shall be made by the head of the agency or his or her designee.
(3) Within 30 days after the receipt of the written notice of march-in, the contractor (assignee or exclusive licensee) may submit in person, in writing, or through a representative, information or argument in opposition to the proposed march-in, including any additional specific information which raises a genuine dispute over the material facts upon which the march-in is based. If the information presented raises a genuine dispute over the material facts, the head of the agency or designee shall undertake or refer the matter to another official for fact-finding.
(4) Fact-finding shall be conducted in accordance with the procedures established by the agency. Such procedures shall be as informal as practicable and be consistent with principles of fundamental fairness. The procedures should afford the contractor the opportunity to appear with counsel, submit documentary evidence, present witnesses and confront such persons as the agency may present. A transcribed record shall be made and shall be available at cost to the contractor upon request. The requirement for a transcribed record may be waived by mutual agreement of the contractor and the agency. Any portion of the march-in proceeding, including a fact-finding hearing that involves testimony or evidence relating to the utilization or efforts at obtaining utilization that are being made by the contractor, its assignee, or licensees shall be closed to the public, including potential licensees. In accordance with 35 U.S.C. 202(c)(5), agencies shall not disclose any such information obtained during a march-in proceeding to persons outside the government except when such release is authorized by the contractor (assignee or licensee) or otherwise required by law.
(5) The official conducting the fact-finding shall prepare or adopt written findings of fact and transmit them to the head of the agency or designee promptly after the conclusion of the fact-finding proceeding along with a recommended determination. A copy of the findings of fact shall be sent to the contractor (assignee or exclusive licensee) by registered or certified mail. The contractor (assignee or exclusive licensee) and agency representatives will be given 30 days to submit written arguments to the head of the agency or designee; and, upon request by the contractor oral arguments will be held before the agency head or designee that will make the final determination.
(6) In cases in which fact-finding has been conducted, the head of the agency or designee shall base his or her determination on the facts found, together with any other information and written or oral arguments submitted by the contractor (assignee or exclusive licensee) and agency representatives,
(7) An agency may, at any time, terminate a march-in proceeding if it is satisfied that it does not wish to exercise march-in rights.
(b) The procedures of this part shall also apply to the exercise of march-in rights against inventors receiving title to subject inventions under 35 U.S.C. 202(d) and, for that purpose, the term “contractor” as used in this section shall be deemed to include the inventor.
(c) An agency determination unfavorable to the contractor (assignee or exclusive licensee) shall be held in abeyance pending the exhaustion of appeals or petitions filed under 35 U.S.C. 203(b).
(d) For purposes of this section the term exclusive licensee includes a partially exclusive licensee.
(e) March-in rights shall not be exercised exclusively based on the business decisions of the contractor regarding the pricing of commercial goods and services arising from the practical application of the invention.
(f) Agencies are authorized to issue supplemental procedures not inconsistent with this part for the conduct of march-in proceedings.
(a) Agencies shall allow a contractor to request greater rights in an invention, including a request to return title to an invention to the contractor, when the funding agreement contains alternate provisions in accordance with § 401.3(a)(2):
(1) The agency shall consider if the circumstances which originally led the agency to invoke an exception under § 401.3(a) are currently valid and applicable to the actual subject invention.
(i) The agency shall provide the contractor the opportunity to submit information on its plans and intentions to bring the subject invention to practical application pursuant to 35 U.S.C. 200.
(ii) The agency shall assess whether government ownership of the invention will better promote the policies and objectives of 35 U.S.C. 200 than the plans and intentions submitted by the contractor.
(iii) The agency shall consider whether to allow the standard clause at § 401.14 to apply with additional conditions imposed upon the contractor's use of the invention for specific uses or applications, or with expanded government license rights in such uses or applications.
(2) The agency shall reply to the contractor with its determination within 90 days after receiving a request and any supporting information from the contractor. If a bar to patenting is sooner than 90 days from receipt of a request, the agency may either file a patent application on the subject invention or authorize the contractor to file a patent application at its own risk and expense.
(3) The Department of Energy is authorized to process deferred determinations either in accordance with its waiver regulations or this section.
(b) Pursuant to 35 U.S.C. 202(d), a contractor is required to obtain approval from a funding Agency before assigning rights to a subject invention made under a funding agreement to an employee/inventor. When an employee/inventor retains rights to a subject invention made under a funding agreement, either the Agency or the contractor must ensure compliance by the employee/inventor with at least those conditions that would apply under paragraphs (b), (d), (f)(4), (h), (i), and (j) of the clause at § 401.14.
The revisions read as follows:
(a) * * *
(1) A refusal to grant an extension under paragraph (c)(5) of the standard clause at § 401.14.
(2) A request for a conveyance of title under paragraph (d)(1) of the standard clause at § 401.14.
(3) A refusal to grant a waiver under paragraph (i) of the standard clause at § 401.14.
(4) A refusal to approve an assignment under paragraph (k)(1) of the standard clause at § 401.14.
(b) Each agency shall establish and publish procedures under which any of the agency actions listed in paragraph (a) of this section may be appealed to the head of the agency or designee. Review at this level shall consider both the factual and legal basis for the actions and its consistency with the policy and objectives of 35 U.S.C. 200-206.
(c) Appeals procedures established under paragraph (b) of this section shall include administrative due process procedures and standards for fact-finding at least comparable to those set forth in § 401.6(a)(4) through (6) whenever there is a dispute as to the factual basis for an agency request for a conveyance of title under paragraph (d) of the standard clause at § 401.14, including any dispute as to whether or not an invention is a subject invention.
(d) To the extent that any of the actions described in paragraph (a) of this section are subject to appeal under the Contract Dispute Act, the procedures under the Act will satisfy the requirements of paragraphs (b) and (c) of this section.
Pursuant to 35 U.S.C. 202(c)(5) and 205, the following procedures shall govern confidentiality of documents submitted under paragraph (c) of the standard clause found at § 401.14:
(a) Agencies shall not disclose to third parties pursuant to requests under the Freedom of Information Act (FOIA) any information disclosing a subject invention during the time which an initial patent application may be filed under paragraph (c) of the standard clause found at § 401.14 or such other clause in the funding agreement. This prohibition does not apply to information that has previously been published by the inventor, contractor, or otherwise.
(b) Agencies shall not disclose or release, pursuant to requests under the Freedom of Information Act or
(c) When implementing policies that encourage public dissemination of the results of work supported by the agency through government publications or other publications of technical reports, agencies shall not include copies of documents submitted by contractors pursuant to § 401.14(c) when a contractor notifies the agency that a particular report or other submission contains a disclosure of a subject invention to which it has elected title or may elect title, or such publication could create a statutory bar to obtaining patent protection.
The revisions read as follows:
(a) * * *
(2)
(7) The term
(c) * * *
(1) The
(3)(i) The
(ii) Each provisional application filed following the initial patent application must contain additional written description of the subject invention not previously disclosed in a patent application. The
(iii) The
(iv) If required by the
(6) In the event a subject invention is made under funding agreements of more than one agency, at the request of the
(d) Conditions When the Government May Obtain Title
(1) A
(i) If the
(ii) In those countries in which the
(iii) In any country in which the
(2) A
(f) * * *
(3) For each subject invention, the
(k) * * *
(4) It will make efforts that are reasonable under the circumstances to attract licensees of subject inventions that are small business firms and that, when appropriate, it will give a preference to a small business firm when licensing a subject invention;
(5) The
(6) The
(m) Electronic Filing
(a) Unless otherwise requested or directed by the
(1) The written disclosure required in (c)(1) of this clause shall be electronically filed;
(2) The written election required in (c)(2) of this clause shall be electronically filed; and
(3) If required by the agency to be submitted, the close-out report in paragraph (c)(1) of this clause and the patent information and periodic reporting identified in paragraph (c)(3) of this clause shall be electronically filed.
(b) Other written notices required in this clause may be electronically delivered to the agency or the
Federal agencies will report annually to the Secretary of Commerce on data pertaining to reported subject inventions under a funding agreement, including—
(a) Number of subject inventions reported to the Federal Agency;
(b) Patent applications filed on subject inventions;
(c) Issued patents on subject inventions;
(d) Number of requests and number of requests granted for extension of the time for disclosures, election, and filing per 37 CFR 401.14(c)(5);
(e) Number of subject inventions conveyed to the Government in accordance with 37 CFR 401.14(d);
(f) Number of waivers requested and waivers granted per 37 CFR 401.14(i); and
(g) Number of requests for assignment of invention rights. Such information will be received by the Secretary no later than the last day of October of each year.
35 U.S.C. 207-209, DOO 30-2A.
(a) This part prescribes the terms, conditions, and procedures upon which a federally owned invention, other than an invention in the custody of the Tennessee Valley Authority, may be licensed. This part does not affect licenses which:
(1) Were in effect prior to April 7, 2006;
(2) May exist at the time of the Government's acquisition of title to the invention, including those resulting from the allocation of rights to inventions made under Government research and development contracts;
(3) Are the result of an authorized exchange of rights in the settlement of patent disputes, including interferences; or
(4) Are otherwise authorized by law or treaty, including 35 U.S.C. 202(e), 35 U.S.C. 207(a)(3) and 15 U.S.C. 3710a, which also may authorize the assignment of inventions. Although licenses on inventions made under a cooperative research and development agreement (CRADA) are not subject to this regulation, agencies are encouraged to apply the same policies and use similar terms when appropriate. Similarly, this should be done for licenses granted under inventions where the agency has acquired rights pursuant to 35 U.S.C. 207(a)(3).
(b) Royalties collected pursuant to this part are not intended as an alternative to appropriated funding or as an alternative funding mechanism.
It is the policy and objective of this subpart to promote the results of federally funded research and development through the patenting and licensing process. In negotiating licenses, the Government may consider payments under a licensing agreement as a means for promoting the practical application of a subject invention and as a method to ensure commercialization by the licensee.
(a) Exclusive, co-exclusive or partially exclusive licenses may be granted on Government owned inventions, only if:
(1) Notice of a prospective license, identifying the invention at a minimum, has been published and responses, if any, reviewed in accordance with 35 U.S.C. 209. The agency, in its discretion, may include other information as appropriate;
(2) After expiration of the public notice period and consideration of any written objections received in accordance with 35 U.S.C. 209(e), the Federal agency has determined that:
(i) The public will be served by the granting of the license, as indicated by the applicant's intentions, plans and ability to bring the invention to the point of practical application or otherwise promote the invention's utilization by the public;
(ii) The proposed scope of exclusivity is not greater than reasonably necessary to provide the incentive for bringing the invention to practical application, as proposed by the applicant, or otherwise to promote the invention's utilization by the public; and
(iii) Exclusive, co-exclusive or partially exclusive licensing is a reasonable and necessary incentive to call forth the investment capital and expenditures needed to bring the invention to practical application or otherwise promote the invention's utilization by the public;
(3) The Federal agency has determined that the grant of such a license will not tend substantially to
(4) The Federal agency has given first preference to any small business firms submitting plans that are determined by the agency to be within the capability of the firms and as having equal or greater likelihood as those from other applicants to bring the invention to practical application within a reasonable time; and
(5) In the case of an invention covered by a foreign patent application or patent, the interests of the Federal Government or United States industry in foreign commerce will be enhanced.
(b) In addition to the provisions of § 404.5, the following terms and conditions apply to exclusive, co-exclusive and partially exclusive licenses:
(1) The license shall be subject to the irrevocable, royalty-free right of the Government of the United States to practice or have practiced the invention on behalf of the United States and on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement with the United States.
(2) The license shall reserve to the Federal agency the right to require the licensee to grant sublicenses to responsible applicants, on reasonable terms, when necessary to fulfill health or safety needs.
(3) The license shall be subject to any licenses in force at the time of the grant of the exclusive, co-exclusive or partially exclusive license.
(4) The license may grant the licensee the right to take any suitable and necessary actions to protect the licensed property, on behalf of the Federal Government.
(c) Federal agencies shall maintain a record of determinations to grant exclusive, co-exclusive or partially exclusive licenses.
(a) The following parties may appeal to the agency head or designee any decision or determination concerning the grant, denial, modification, or termination of a license:
(3) A person who timely filed a written objection in response to the notice required by § 404.7 and who can demonstrate to the satisfaction of the Federal agency that such person may be damaged by the agency action due to being denied the opportunity to promote the commercialization of the invention.
(b) The Federal agency shall establish appropriate procedures for considering appeals under paragraph (a) of this section.
35 U.S.C. 209(f) requires that any plan submitted pursuant to § 404.8(a)(8) and any report required by 35 U.S.C. 209(d)(2) shall be treated as commercial or financial information obtained from a person and privileged and confidential and not subject to disclosure under 5 U.S.C. 552.
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes rules to implement the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) to streamline the process by which private entities may submit information to the Commission about violations of the Communications Act.
Comments are due on or before February 3, 2021 and reply comments are due on or before February 18, 2021.
You may submit comments, identified by EB Docket No. 20-374, by any of the following methods:
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See
For additional information on this proceeding, contact Daniel Stepanicich of the Telecommunications Consumers Division, Enforcement Bureau, at
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 20-174, EB Docket No. 20-374, adopted and released on December 8, 2020. The full text of this document is available for public inspection online at
1. In this Notice of Proposed Rulemaking, the Federal Communications Commission (Commission) proposes to implement
2. In particular, Congress sought to enhance the ability of private entities to convey concerns about calls and texts that violate robocall or caller ID spoofing restrictions. Specifically, Congress directed the Commission to establish regulations, no later than June 30, 2021, to create a process that “streamlines the ways in which a private entity may voluntarily share with the Commission information relating to” a call or text message that violates the law regarding robocalls or spoofing. This Notice of Proposed Rulemaking proposes and seeks comment on rules to implement this mandate. We propose to establish an online web portal where private entities may submit information about violations of sections 227(b) and 227(e) of the Communications Act. Under the proposal, the Commission's Enforcement Bureau would monitor the portal.
3.
4.
5. We propose that the online form would require certain minimum information, including the name of the private entity, a point of contact, the caller ID information displayed as well as the phone numbers affected by the robocalling incident, the date(s) and time(s) of the relevant calls or texts, the name of the private entity's service provider, and a description of the problematic calls or texts. We propose to allow private entities to submit additional information. We invite input on this proposal and seek comment on what other information we should require.
6. We further invite comment on whether there are any regulatory or statutory obligations or mandates that we should consider in developing the new streamlined process for collecting information from private entities under the definition we propose. Specifically, are there any laws or regulations that currently deter private entities from sharing data with the Commission regarding robocalls and spoofed calls and texts? What confidentiality assurances, if any, are necessary to ensure that a private entity would not open itself up to potential liability for any such sharing.
7. What other incentives are needed to encourage private entities to share information with the Commission about illegal robocalling or spoofing campaigns in a timely manner? For example, should we consider creating a safe harbor for private entities that share information through the web portal, and if so, what should be the scope of any such safe harbor? Would additional safe harbor protections be necessary and appropriate to encourage timely reporting of violations? We invite specific suggestions for safe harbors, including our legal authority to adopt such suggestions.
8.
9.
10. In the Notice of Proposed Rulemaking, the Commission proposes to streamline the process for private entities to submit information to the Commission about a violation of 47 U.S.C. 227(b) or 47 U.S.C. 227(e). The Commission proposes to create a web portal where private entities can submit robocall violation information that will be monitored and reviewed by the Enforcement Bureau. Additionally, the Commission proposes to define “private entity” as any individual or entity other than a public entity.
11. The proposed action is authorized pursuant to sections 4(i) and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), and 227, and section 10(a) of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, Public Law 116-105, 133 Stat. 3274.
12. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operations; and (3) satisfies any additional criteria established by the SBA.
13.
14. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2018, there were approximately 571,709 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.
15. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty-thousand.” The rules proposed in this Notice of Proposed Rulemaking exclude public entities and therefore do not apply to small governmental jurisdictions.
16. The Commission does not expect the rules proposed in the Notice of Proposed Rulemaking will impose any new and/or additional reporting or recordkeeping and/or compliance obligations on small entities. The proposed web portal is a completely voluntary process that small entities may use to submit information about robocall or spoofing violations. Small entities are advised to retain copies of their submissions to the Commission as well any supporting documentation should the Bureau wish to follow-up with the complainant for more information.
17. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) the exemption from coverage of the rule, or any part thereof, for such small entities.”
18. Congress directed the Commission to streamline the process for private entities to submit information about robocall violations. We determined that creating a web portal would best meet the Congressional mandate while also placing as few burdens as possible on private entities. Furthermore, the use of the portal is entirely voluntary and does not place any additional requirements on small entities. We also considered whether to make changes to the existing Consumer Complaint Center, but we determined that any such changes would be disruptive and counterproductive to consumers and small entities. We propose to give maximum flexibility to small entities as they may still continue to submit robocall complaints to the Consumer Complaint Center. This flexibility limits any undue burdens on small entities. We seek comment on whether we should consider any alternative proposals to reduce the impact on small entities.
19.
20.
Authority delegations (Government agencies), Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 0 and 64 as follows:
47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, unless otherwise noted.
(j) Collects and reviews information received from private entities related to violations of § 64.1200(a) and § 64.1604(a) of this title.
47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220, 225, 226, 227, 227b, 228, 251(e), 254(k), 262, 276, 403(b)(2)(B), (c), 616, 620, 1401-1473, unless otherwise noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.
(a) Any private entity may submit to the Enforcement Bureau information related to a call made in violation of § 64.1200(a).
(b) For the purposes of this section, the term “private entity” shall mean any individual or entity other than a public entity.
(a) Any private entity may submit to the Enforcement Bureau information related to a call or text message for which misleading or inaccurate caller identification information was caused to be transmitted in violation of § 64.1604(a).
(b) For the purposes of this section, the term “private entity” shall mean any individual or entity other than a public entity.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Proposed rule; extension of comment period.
NHTSA has received petitions asking the Agency to extend the comment period for a notice of proposed rulemaking (NPRM) to update Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child restraint systems.” The NPRM proposed to incorporate a new test sled assembly to conduct compliance tests of child restraints and update a number of the test procedures of the standard. The comment period for the NPRM is scheduled to end on January 4, 2021. In response to petitions from the Juvenile Products Manufacturers Association and the Children's Hospital of Philadelphia, the Agency is extending the comment period by 90 days.
The comment period for the NPRM published on November 2, 2020, at 85 FR 69388, is extended to April 5, 2021.
You may submit comments to the docket number identified in the heading of this document by any of the following methods:
•
•
•
•
Regardless of how you submit your comments, please mention the docket number identified in the heading of this document.
For technical issues, you may call Cristina Echemendia, Office of Crashworthiness Standards (telephone: 202-366-6345) (fax: 202-493-2990). For legal issues, you may call Deirdre Fujita, Office of Chief Counsel (telephone: 202-366-5246) (fax: 202-366-3820). Address: National Highway Traffic Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590.
Section 31501(b) of the Moving Ahead for Progress in the 21st Century Act (MAP-21) requires the Secretary (NHTSA, by delegation) to commence and complete a rulemaking to amend the standard seat assembly in FMVSS No. 213 to better simulate a single representative motor vehicle rear seat. Pursuant to this mandate, on November 2, 2020, NHTSA published an NPRM proposing to amend FMVSS No. 213 by updating the standard seat assembly NHTSA uses to test child restraint systems (CRSs) for compliance with the standard's dynamic performance requirements. This NPRM proposed other amendments to modernize FMVSS No. 213, including ways to streamline the Agency's use of test dummies to assess restraint performance. NHTSA provided a 60-day comment period for the November 2, 2020 proposal, which closes on January 4, 2021.
The Juvenile Products Manufacturers Association (JPMA), representing manufacturers of child restraint systems, submitted a petition on December 14, 2020 requesting a 120-day extension of the comment period for the November 2, 2020 NPRM.
On December 11, 2020, the Children's Hospital of Philadelphia (CHOP) submitted a petition to extend the comment period. CHOP did not specify the additional time sought but argued that remote teleworking and competing work due to the public health emergency has created challenges to gather all the individuals and relevant data to draft a response.
In accordance with NHTSA's rulemaking procedures in 49 CFR part 553, subpart B, the Agency is granting the petitioners' requests to extend the comment period, but is extending it only for 90 days. NHTSA has determined that the petitioners have shown good cause for an extension, and that the extension is consistent with the public interest (49 CFR 553.19). Entities seeking to build the proposed standard seat assembly need time to procure materials and fabricate the assembly. NHTSA typically procures test seat assemblies in 6 to 8 weeks, but understand that it may take longer to obtain the seat assembly discussed in the NPRM due to possible customer demand, the time needed to procure the seat foam (8-12 weeks), and the business restrictions caused by the public health emergency. However, JPMA has not provided any basis explaining why it would take 8 to 16 weeks, almost twice the normal time, to procure the assembly. Without a reasoned explanation for the exceptionally long period, we conclude a 120-day extension is unwarranted and unduly delays the rulemaking.
In considering the petitions, NHTSA weighed the statutory interest in completing this rulemaking, the complexity and importance of the rulemaking, and the basis for the requests. The 3-dimensional drawings of the standard seat assembly were made public on November 16, 2020.
The Agency supports efforts to develop useful technical information on the proposal and believes 90 additional days will achieve that result. Extending the comment period 90 days balances the need to provide more time to entities to assess the proposal with the need to incorporate a representative vehicle seat in FMVSS No. 213 compliance tests expeditiously. Incorporating a representative vehicle seat in FMVSS No. 213 will provide a more meaningful assessment of the performance of CRSs in vehicles on the road today.
Please note that even after the comment closing date has passed, interested persons are able to file comments in the docket, which NHTSA will consider to the extent practicable. 49 CFR 553.23. NHTSA may also continue to file relevant information in the docket as it becomes available. Accordingly, the Agency recommends that readers periodically check the docket for new material.
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95 and 49 CFR 501.8.
Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.8.
National Institute of Food and Agriculture (NIFA), USDA.
Notice of opportunity for commodity boards to submit topics and contribute funding under the Agriculture and Food Research Initiative Competitive Grants Program.
NIFA is soliciting topics commodity board entities (Federal and State-level commodity boards, as defined below) are willing to co-fund equally with NIFA. To be considered for inclusion in future Agriculture and Food Research Initiative (AFRI) competitive grants program Requests for Applications (RFAs), topics must relate to the established priority areas of AFRI. Commodity boards are those entities established under a commodity promotion law, as such term is defined under the Federal Agriculture Improvement and Reform Act of 1996, or a State commodity board or other equivalent State entity. See the
Commodity boards may submit topics at any time; however, all topics received by 5:00 p.m. EDT on March 5, 2021 will be considered for the fiscal year 2021 AFRI RFAs. Topics submitted by eligible commodity board entities after this date are not guaranteed review for fiscal year 2021 but will be considered for RFAs to be issued in future years. Frequently asked questions about commodity board topics are available on the NIFA website (
You may submit topics by the following method: Website:
Mark Mirando; Phone: (202) 445-5575, or Email:
If, after NIFA's evaluation, proposed topics are accepted for inclusion, they will be incorporated into AFRI competitive grants program RFAs. As a condition of funding grants pertaining to a topic, NIFA will require an agreement with the commodity board to provide funds equal to the amount NIFA is contributing under the agreed upon topic.
This Notice invites topic submissions from commodity boards as defined above, outlines the process NIFA will use to evaluate the appropriateness of these topics for inclusion in AFRI RFAs, and describes the commitment required of commodity boards for NIFA to jointly fund competitively selected AFRI awards within a topic area submitted by the commodity boards.
This Notice begins the sixth topic submission cycle to implement section 2(b)(4)(F) of the Competitive, Special, and Facilities Research Grant Act (7 U.S.C. 3157(b)(4)(F)), as added by section 7404 of the Agricultural Act of 2014, Public Law 113-79, which requires NIFA to “establish procedures, including timelines, under which an entity established under a commodity promotion law (as such term is defined under section 501(a) of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 7401(a))) or a State commodity board (or other equivalent State entity) may directly submit to [NIFA] for consideration proposals for requests for applications” within the AFRI Program.
Stakeholder feedback gathered in previous years informed this Notice and the process NIFA is using to implement section 7404. This Notice invites entities established under a commodity promotion law or State commodity boards (or other equivalent State entities) to submit topics they are proposing for inclusion in fiscal year 2021 AFRI RFAs. Topics must relate to the established AFRI priority areas, which are: Plant health and production and plant products; animal health and production and animal products; food safety, nutrition, and health; bioenergy, natural resources, and environment; agriculture systems and technology; and agriculture economics and rural communities. A summary statement on AFRI is included below. To learn more about AFRI programs, including program priorities, typical award budget amounts, and examples of RFAs, please visit:
The AFRI program is the largest agricultural competitive grants program in the United States and a primary funding source for research, education, and extension projects that bring practical solutions to some of today's most critical societal challenges. AFRI programs impact all components of agriculture, including farm and ranch efficiency and profitability, bioenergy, forestry, aquaculture, rural communities, human nutrition, food safety, biotechnology, and genetic improvement of plants and animals.
In FY 2021, NIFA plans to solicit applications for AFRI funding opportunities in the six AFRI priority areas (Plant health and production and plant products; Animal health and production and animal products; Food safety, nutrition, and health; Bioenergy, natural resources, and environment; Agriculture systems and technology; Agriculture economics and rural communities). It is anticipated these will include the AFRI Foundational and Applied Science Program RFA and the AFRI Education and Workforce Development RFA. The annual AFRI Foundational and Applied Science Program RFA solicits grant applications focused predominately, but not exclusively, on fundamental scientific research addressing statutory priorities. The AFRI Education and Workforce Development RFA solicits grant applications for training K-14 educational professionals, workforce training, undergraduate research and extension experiential learning fellowships, and pre- and post-doctoral
Eligible commodity board entities are those established under a commodity promotion law, as such term is defined under 7 U.S.C. 7401(a), or a State commodity board (or other equivalent State entity). Language in 7 U.S.C. 7401(a) defines a “commodity promotion law” as “a Federal law that provides for the establishment and operation of a promotion program regarding an agricultural commodity that includes a combination of promotion, research, industry information, or consumer information activities, is funded by mandatory assessments on producers or processors, and is designed to maintain or expand markets and uses for the commodity (as determined by the Secretary).” 7 U.S.C. 7401(a) includes a list of such Federal laws.
A current list of approved entities is maintained at
Topics may be submitted at any time and will be evaluated by NIFA on an annual basis. However, to guarantee consideration for the proposed fiscal year 2021 AFRI RFAs, topics must be received by 5:00 p.m. EDT on March 5, 2021.
Each topic proposed must be submitted using the topic submission form provided at:
If topics are accepted for funding, they will be incorporated into AFRI RFAs, and grants supporting the topic area may be awarded to AFRI eligible entities based on a competitive peer review process. As a condition of funding grants in a topic, NIFA will require an agreement by the commodity board to provide funds in an amount equal to the amount NIFA is contributing under the agreed upon topic. If a topic is selected for inclusion in an RFA, the commodity board submitting the topic will be required to maintain the confidentiality of the topic until the RFA is issued by NIFA. All commodity board funds and NIFA funds must be available at the time projects are selected for funding; awards are fully funded at the beginning of the award. Applications submitted under topics provided by commodity boards will be required to include a letter of support for co-funding from the commodity board that proposed the topic.
NIFA will screen proposed research topics to ensure eligibility of the submitting commodity boards. NIFA will also consult with USDA's Agricultural Marketing Service (AMS) to determine that submissions and proposed financial contributions are consistent with commodity promotion laws and commodity boards' charters, as applicable.
Commodity board topics are reviewed by an internal panel based on evaluation criteria developed using stakeholder input from commodity boards and other stakeholders from government, industry, and academe. Each topic will be evaluated based on alignment with one or more of the statutory AFRI priority areas (six AFRI priority areas authorized in the Farm Bill and described in 7 CFR 3430.309); alignment with the President's budget proposal for NIFA, as identified in the Department of Agriculture's annual budget submission; and alignment with the priority areas in the AFRI RFAs to be released by NIFA during the fiscal year for which the commodity board is proposing a topic for funding (for example, within the AFRI Foundational and Applied Science RFA, the AFRI Animal Health and Production and Animal Products' “Animal Reproduction” priority area).
From those topics received by 5:00 p.m. EDT on March 5, 2021, NIFA will select the topic(s) that were evaluated favorably for inclusion in the appropriate FY 2021 AFRI RFA. NIFA will notify commodity boards as to whether their topics will be included by April 5, 2021. Based on the evaluation, NIFA reserves the right to negotiate with commodity boards should changes be required to accept topics and funding amounts. Any changes to topics and funding amounts will be reviewed by USDA's AMS to determine if such changes are consistent with applicable commodity promotion laws.
NIFA will evaluate topics submitted after the March 5, 2021 deadline on an annual basis and notify commodity boards whether their topics will be included in subsequent RFAs within two weeks following the meeting of the internal evaluation panel, the date of which will be published on NIFA's Commodity Boards web page at (
New information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request approval of a new information collection associated with the testing and reporting of SARS-CoV-2 in animals.
We will consider all comments that we receive on or before March 5, 2021.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
For information on testing and reporting of SARS-CoV-2 in animals, contact Dr. Laura Miles, Veterinarian Epidemiologist, Surveillance, Design, and Analysis Section, Center for Epidemiology and Animal Health, Veterinary Services, 2150 Centre Ave., Bldg. B, Fort Collins, CO 80526; (970) 494-7246;
Collection, analysis, and dissemination of animal and poultry health information is consistent with the APHIS mission of protecting and improving American agriculture's productivity and competitiveness. APHIS uses the National Animal Health Reporting System (NAHRS) for reporting and tracking the emergence, prevalence, epidemiology, and economic importance of diseases in livestock, poultry, and other animals. The system facilitates standardization of disease information throughout the United States, provides a central point for the collection of national data, and assists APHIS in meeting its animal disease reporting obligations to the World Organization for Animal Health (OIE).
To better meet its reporting requirements about emerging diseases to the OIE, APHIS is interested in collecting information as to the detection of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in animals. To accomplish this, APHIS will distribute a request for information to U.S. laboratories engaged in the testing of animals for SARS-CoV-2, develop a questionnaire in NAHRS, and request that State animal health officials and U.S. laboratories provide SARS-CoV-2 animal testing data on a monthly basis.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities, as described, for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
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.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This is a revision of a currently approved information collection request.
Written comments must be received on or before March 4, 2021.
Comments may be sent to Stephanie Proska, Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, Room 05.5040, Alexandria, VA 22314. Comments may also be submitted via email to
Requests for additional information or copies of this information collection should be directed to Stephanie Proska at 703-305-2437.
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 shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were 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 use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection.
Written comments must be received on or before March 5, 2021.
Comments may be sent to: Maribelle Balbes, Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, Alexandria, Virginia 22314. Comments may also be submitted via email to
Requests for additional information or copies of this information collection should be directed to Evan Sieradzki at 703-605-3212.
This collection is a revision of an expired collection at 84 FR 11928. In 2016, an Interim Final Rule titled “Supplemental Nutrition Assistance Program: Requirement for National Directory of New Hires Employment Verification and Annual Program Activity Reporting,” was published in the
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 shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were 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 use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Food and Nutrition Service (FNS), USDA.
Notice of reestablished matching program.
In accordance with the Privacy Act of 1974, the U.S. Department of Agriculture (USDA) Food and Nutrition Service (FNS) is providing notice of a reestablished computer matching program between FNS and the State agencies that administer the Supplemental Nutrition Assistance Program (SNAP). The matching program allows State agencies access to the Electronic Disqualified Recipient System (eDRS), a national database operated by FNS. The system maintains records of SNAP disqualifications imposed by State agencies on individuals who have been found to have committed an intentional program violation (IPV). State agencies need access to nationwide disqualification information to meet program integrity requirements because a disqualification in any State applies to SNAP nationally. Matches against eDRS enhance program integrity by providing State agencies assistance in determining eligibility for SNAP benefits and the proper disqualification length when imposing a new disqualification.
The deadline for comments on this notice is February 3, 2021. The effective date of the reestablished matching program will be not sooner than 30 days from the publication of this notice, provided no comments are received that result in a contrary determination. The matching program will be conducted for an initial term of 18 months and, within three months of expiration, may be renewed for one additional year if the parties make no change to the matching program and certify that the program has been conducted in compliance with the agreement.
Interested parties may submit written comments on this notice to Maribelle Balbes, Chief, State Administration Branch, Program Accountability and Administration Division, SNAP, by email at
If you have questions about the matching program, you may contact Maribelle Balbes, (703) 605-4272.
The Privacy Act of 1974, as amended, 5 U.S.C. 552a, provides certain protections for individuals applying for and receiving federal benefits. The law governs the use of computer matching by federal agencies when records in a system of records, which contains information about individuals that are retrieved by name or other personal identifier, are matched with records of other Federal, State, or local government records. The Privacy Act requires agencies involved in a matching program to:
1. Obtain approval of a Computer Matching Agreement, prepared in accordance with the Privacy Act, by the Data Integrity Board of any Federal agency participating in a matching program.
2. Enter into a written Computer Matching Agreement.
3. Provide a report of the matching program to Congress and the Office of Management and Budget (OMB), and make it available to the public, as required by 5 U.S.C. 552a(o), (u)(3)(A), and (u)(4).
4. Publish a notice of the matching program in the
5. Notify the individuals whose information will be used in the matching program that the information they provide is subject to verification through matching, as required by 5 U.S.C. 552a(o)(1)(D).
6. Verify match findings before suspending, terminating, reducing, or making a final denial of an individual's benefits or payments or taking other adverse action against the individual, as required by 5 U.S.C. 552a(p).
This matching program meets these requirements.
Rural Business-Cooperative Service, USDA.
Notice; correction.
The Rural Business-Cooperative Service (Agency), USDA published a notice in the
Greg York at (202) 281-5289,
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On November 12, 2020, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the City of San Jose, grantee of FTZ 18, requesting an expansion of Subzone 18F, subject to the existing activation limit of FTZ 18, on behalf of Lam Research Corporation, in Fremont, California.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of certain chassis and subassemblies thereof (chassis) from the People's Republic of China (China). The period of investigation is January 1, 2019 through December 31, 2019. Interested parties are invited to comment on this preliminary determination.
Applicable January 4, 2021.
William Langley or Nicholas Czajkowski, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3681 or (202) 482-1395, respectively.
This preliminary determination is made in accordance with section 703(b) of the Trade Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on August 26, 2020.
For a complete description of the events that followed the initiation of this investigation,
The products covered by this investigation are certain chassis and subassemblies thereof from China. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce preliminarily determines that there is a subsidy,
Commerce notes that, in making these findings, it relied, in part, on facts available and, because it finds that one or more respondents did not act to the best of their ability to respond to Commerce's requests for information, it drew an adverse inference where appropriate in selecting from among the facts otherwise available.
Sections 703(d) and 705(c)(5)(A) of the Act provide that, in the preliminary determination, Commerce shall determine an estimated all-others rate for companies not individually examined. The rate shall be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any rates that are zero,
In this investigation, Commerce preliminarily calculated a rate for Qingdao CIMC Special Vehicles Co., Ltd. and Dongguan CIMC Vehicle Co., Ltd. (collectively, CIMC), the only mandatory respondent. The only rate that is not zero,
Commerce preliminarily determines that the following estimated countervailable subsidy rates exist:
In accordance with section 703(d)(1)(B) and (d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of its public announcement, or if there is no public announcement, within five days of the date of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination. Normally, Commerce verifies information using standard procedures, including an on-site examination of original accounting, financial, and sales documentation. However, due to current travel restrictions in response to the global COVID-19 pandemic, Commerce is unable to conduct on-site verification in this investigation. Accordingly, we intend to verify the information relied upon in making the final determination through alternative means in lieu of an on-site verification.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance. Commerce will notify interested parties of the deadline for the submission of case briefs. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date and time of the hearing two days before the scheduled date.
Parties are reminded that briefs and hearing requests are to be filed electronically using ACCESS and that electronically filed documents must be received successfully in their entirety by 5 p.m. Eastern Time on the due date. Note that Commerce has temporarily modified certain of its requirements for serving documents containing business proprietary information, until further notice.
In accordance with section 703(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination.
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation are chassis and subassemblies thereof, whether finished or unfinished, whether assembled or unassembled, whether coated or uncoated, regardless of the number of axles, for carriage of containers, or other payloads (including self-supporting payloads) for road, marine roll-on/roll-off (RORO) and/or rail transport. Chassis are typically, but are not limited to, rectangular framed trailers with a suspension and axle system, wheels and tires, brakes, a lighting and electrical system, a coupling for towing behind a truck tractor, and a locking system or systems to secure the shipping container or containers to the chassis using twistlocks, slide pins or similar attachment devices to engage the corner fittings on the container or other payload.
Subject merchandise includes, but is not limited to, the following subassemblies:
• Chassis frames, or sections of chassis frames, including kingpins or kingpin assemblies, bolsters consisting of transverse beams with locking or support mechanisms, goosenecks, drop assemblies, extension mechanisms and/or rear impact guards;
• Running gear assemblies or axle assemblies for connection to the chassis frame, whether fixed in nature or capable of sliding fore and aft or lifting up and lowering down, which may or may not include suspension(s) (mechanical or pneumatic), wheel end components, slack adjusters, axles, brake chambers, locking pins, and tires and wheels;
• Landing gear (legs) or landing gear assemblies, for connection to the chassis frame, capable of supporting the chassis when it is not engaged to a tractor; and
• Assemblies and/or components that connect to the chassis frame or a section of the chassis frame, such as, but not limited to, pintle hooks or B-trains (which include a fifth wheel), which are capable of connecting a chassis to a converter dolly or another chassis.
Importation of any of these subassemblies, whether assembled or unassembled,
Subject merchandise also includes chassis, whether finished or unfinished, entered with or for further assembly with components such as, but not limited to: Hub and drum assemblies, brake assemblies (either drum or disc), axles, brake chambers, suspensions and suspension components, wheel end components, landing gear legs, spoke or disc wheels, tires, brake control systems, electrical harnesses and lighting systems.
Processing of finished and unfinished chassis and components such as trimming, cutting, grinding, notching, punching, drilling, painting, coating, staining, finishing, assembly, or any other processing either in the country of manufacture of the in-scope product or in a third country does not remove the product from the scope. Inclusion of other components not identified as comprising the finished or unfinished chassis does not remove the product from the scope.
This scope excludes dry van trailers, refrigerated van trailers and flatbed trailers. Dry van trailers are trailers with a wholly enclosed cargo space comprised of fixed sides, nose, floor and roof, with articulated panels (doors) across the rear and occasionally at selected places on the sides, with the cargo space being permanently incorporated in the trailer itself. Refrigerated van trailers are trailers with a wholly enclosed cargo space comprised of fixed sides, nose, floor and roof, with articulated panels (doors) across the rear and occasionally at selected places on the sides, with the cargo space being permanently incorporated in the trailer and being insulated, possessing specific thermal properties intended for use with self-contained refrigeration systems. Flatbed (or platform) trailers consist of load-carrying main frames and a solid, flat or stepped loading deck or floor permanently incorporated with and supported by frame rails and cross members.
The finished and unfinished chassis subject to this investigation are typically classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 8716.39.0090 and 8716.90.5060. Imports of finished and unfinished chassis may also enter under HTSUS subheading 8716.90.5010. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on boltless steel shelving units prepackaged for sale (boltless steel shelving) from the People's Republic of China (China) would be likely to lead to continuation or recurrence of countervailable subsidies at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable January 4, 2021.
Nathan James, AD/CVD, Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5305.
On October 21, 2015, Commerce published in the
On September 30, 2020, Commerce received a timely and adequate substantive response from the domestic interested party.
The product covered by the
All issues raised in this sunset review are addressed in the accompanying Issues and Decision Memorandum, which is hereby adopted by this notice. The issues discussed in the Issues and Decision Memorandum are the likelihood of continuation or recurrence of a countervailable subsidy, the net countervailable subsidy rate likely to prevail if the
Pursuant to sections 751(c)(1) and 752(b) of the Act, Commerce determines
This notice also serves as the only reminder to parties subject to an Administrative Protective Order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this expedited sunset review, the Department of Commerce (Commerce) finds that revocation of the antidumping duty (AD) order on boltless steel shelving units prepackaged for sale (boltless steel shelving) from the People's Republic of China (China) would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Final Results of Review” section of this notice.
Applicable January 4, 2021.
Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2593.
On October 21, 2015, Commerce issued the AD order on boltless steel shelving from China.
The scope of the
Subject boltless steel shelving enters the United States through Harmonized Tariff Schedule of the United States (HTSUS) statistical subheadings 9403.20.0018, 9403.20.0020, 9403.20.0025, and 9403.20.0026, but may also enter through HTSUS 9403.10.0040. A full description of the scope of the
All issues raised in this review are addressed in the Issues and Decision Memorandum, which is hereby adopted by this notice. The issues discussed in the Issues and Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins of dumping likely to prevail if the
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the antidumping duty order on boltless steel shelving from China would be likely to lead to continuation or recurrence of dumping, and that the margins of dumping likely to prevail would be weighted-average margins of up to 112.68 percent.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely notification of the destruction of APO materials or conversion to judicial protective orders is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.221(c)(5)(ii).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) and suspended investigation(s) listed below. The International Trade Commission (ITC) is publishing concurrently with this notice its notice of
Applicable (January 1, 2021).
Commerce official identified in the
Commerce's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Reviews of the following antidumping and countervailing duty order(s) and suspended investigation(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerce's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address:
Any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, Commerce modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), Commerce will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation. Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (APO) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, Commerce's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) has completed the administrative review of the antidumping duty order on uncovered innerspring units (innersprings) from the Socialist Republic of Vietnam (Vietnam) covering the period of review (POR) December 1, 2018 through November 30, 2019. We continue to find that Angkor Spring Co., Ltd. (Angkor Spring) did not demonstrate eligibility for a separate rate; therefore, it is part of the Vietnam-wide entity.
Applicable January 4, 2021.
Brendan Quinn, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230; telephone: (202) 482-5848.
On July 1, 2020, Commerce published the
The merchandise subject to this order is uncovered innerspring units composed of a series of individual metal springs joined together in sizes corresponding to the sizes of adult mattresses (
Uncovered innerspring units are suitable for use as the innerspring component in the manufacture of innerspring mattresses, including mattresses that incorporate a foam encasement around the innerspring.
Pocketed and non-pocketed innerspring units are included in this definition. Non-pocketed innersprings are typically joined together with helical wire and border rods. Non-pocketed innersprings are included in this definition regardless of whether they have border rods attached to the perimeter of the innerspring. Pocketed innersprings are individual coils covered by a “pocket” or “sock” of a nonwoven synthetic material or woven material and then glued together in a linear fashion.
Uncovered innersprings are classified under subheading 9404.29.9010 and have also been classified under subheadings 9404.10.0000, 9404.29.9005, 9404.29.9011, 7326.20.0070, 7326.20.0090, 7320.20.5010, 7320.90.5010, or 7326.20.0071 of the Harmonized Tariff Schedule of the United States (HTSUS).
Commerce preliminarily determined that the company subject to this review did not demonstrate eligibility for separate rate status and, thus, Commerce found it to be part of the Vietnam-wide entity.
In these final results of review, we continue to treat the sole exporter subject to this review as part of the Vietnam-wide entity.
Commerce's policy regarding the conditional review of the Vietnam-wide entity applies to this administrative review.
Commerce has determined, and CBP shall assess, antidumping duties on all appropriate entries in this review, in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b)(1). We intend to issue assessment instructions directly to CBP 15 days after publication in the
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed Vietnamese and non-Vietnamese exporters not under review in this segment of the proceeding, but who have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (2) for all Vietnamese exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the Vietnam-wide entity rate (
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested.
We are issuing and publishing this notice in accordance with section 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (Commerce) determines that imports of wood mouldings and millwork products (millwork products) from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation is July 1, 2019 through December 31, 2019.
Applicable January 4, 2021.
Brian Smith or Michael Bowen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-0768, respectively.
On August 12, 2020, Commerce published the
The products covered by this investigation are millwork products from China. For a complete description of the scope of this investigation,
On August 5, 2020, we issued a Preliminary Scope Memorandum.
Commerce normally verifies information relied upon in making its final determination, pursuant to section 782(i)(1) of the Tariff Act of 1930, as amended (the Act). However, during the course of this investigation, Commerce was unable to conduct on-site verification due to travel restrictions.
All issues raised in the case and rebuttal briefs that were submitted by parties in this investigation are addressed in the Issues and Decision Memorandum. For a list of the issues raised by interested parties and addressed in the Issues and Decision Memorandum,
Commerce continues to find that the use of facts available is warranted in determining the rate of the China-wide entity pursuant to sections 776(a)(1) and (a)(2)(A)-(C) of the Act. As discussed in the Issues and Decision Memorandum, Commerce finds that the use of facts available is also warranted with respect to Bel Trade Wood Industrial Co., Ltd. Youxi Fujian (Bel Trade) pursuant to sections 776(a)(1) and (a)(2)(A)-(C) of the Act. Furthermore, we find that the use of adverse facts available (AFA) is warranted because the China-wide entity, including Bel Trade, did not cooperate to the best of its ability to comply with our requests for information and, accordingly, we applied adverse inferences in selecting from the facts available, pursuant to section 776(b) of the Act and 19 CFR 351.308(a). For the final determination, as AFA, we are assigning the China-wide entity, including Bel Trade, the rate of 230.36 percent, which is the highest calculated transaction-specific margin on the record.
We preliminarily granted 43 companies, including the two mandatory respondents, Fujian Yinfeng Imp & Exp Trading Co., Ltd./Fujian Province Youxi City Mangrove Wood Machining Co., Ltd. (Yinfeng/Mangrove)
No party commented on our preliminary separate rate determinations with respect to the 41 non-individually examined companies; thus, there is no basis to reconsider our preliminary determinations with respect to these companies, and we have continued to grant them a separate rate in this final determination. Finally, with respect to Lanzhou Xinyoulian Industrial Co., Ltd. (Lanzhou Xinyoulian), a company to which we preliminarily denied a separate rate, we find Lanzhou Xinyoulian is also entitled to a separate rate after careful consideration of its timely submitted information requested after the
In determining the rate for non-individually examined separate rate respondents in a non-market economy antidumping duty (AD) investigation, Commerce normally takes guidance from section 735(c)(5)(A) of the Act, which governs the calculation of the all-others rate in a market economy AD investigation. Generally, under section 735(c)(5)(A) of the Act, this rate shall be an amount equal to the weighted average of the estimated AD rates established for those companies individually examined, excluding any zero and
The sole calculated AD rate for this final determination is the margin calculated for Yinfeng/Mangrove. Therefore, for the final determination, we assigned the rate calculated for Yinfeng/Mangrove as the separate rate for the non-individually examined companies which established their eligibility for a separate rate, consistent with our practice.
Based on our review and analysis of the comments received from interested parties, we made changes to the margin calculations for Yinfeng/Mangrove.
Consistent with the
Commerce determines that the following weighted-average dumping margins exist for the companies under investigation:
We intend to disclose to parties in this proceeding the calculations performed for this final determination within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, we will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of millwork products from China, as described in Appendix I of this notice, which are entered, or withdrawn from warehouse, for consumption on or after August 12, 2020, the date of publication in the
Pursuant to section 735(c)(1)(B)(ii) of the Act, upon the publication of this notice, Commerce will instruct CBP to require a cash deposit equal to the weighted-average amount by which the normal value exceeds U.S. price as follows: (1) The cash deposit rate for the exporter/producer combinations listed in the table above will be the rate identified in the table; (2) for all combinations of Chinese exporters/producers of subject merchandise that have not received their own separate rate above, the cash deposit rate will be the cash deposit rate established for the China-wide entity; and (3) for all non-Chinese exporters of subject merchandise which have not received their own separate rate above, the cash deposit rate will be the cash deposit rate applicable to the Chinese exporter/producer combination that supplied that non-Chinese exporter. These suspension of liquidation instructions will remain in effect until further notice.
To determine the cash deposit rate, Commerce normally adjusts the estimated weighted-average dumping margin by the amount of domestic subsidy pass-through and export subsidies determined in a companion countervailing duty (CVD) proceeding where appropriate. Accordingly, because Commerce made a final affirmative determination for export subsidies in the companion CVD investigation, we offset the calculated estimated weighted-average dumping margins by the appropriate export subsidy rates
For this final determination, we made no adjustment for domestic subsidy pass-through because we found no basis upon which to make such an adjustment.
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of our final affirmative determination of sales at LTFV. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise from China no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated, and all cash deposits posted will be refunded. If the ITC determines that such injury does exist, Commerce will issue an AD order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice will serve as a reminder to the parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act, and 19 CFR 351.210(c).
The merchandise subject to this investigation consists of wood mouldings and millwork products that are made of wood (regardless of wood species), bamboo, laminated veneer lumber (LVL), or of wood and composite materials (where the composite materials make up less than 50 percent of the total merchandise), and which are continuously shaped wood or finger-jointed or edge-glued moulding or millwork blanks (whether or not resawn). The merchandise subject to this investigation can be continuously shaped along any of its edges, ends, or faces.
The percentage of composite materials contained in a wood moulding or millwork product is measured by length, except when the composite material is a coating or cladding. Wood mouldings and millwork products that are coated or clad, even along their entire length, with a composite material, but that are otherwise comprised of wood, LVL, or wood and composite materials (where the non-coating composite materials make up 50 percent or less of the total merchandise) are covered by the scope.
The merchandise subject to this investigation consists of wood, LVL, bamboo, or a combination of wood and composite materials that is continuously shaped throughout its length (with the exception of any endwork/dados), profiled wood having a repetitive design in relief, similar milled wood architectural accessories, such as rosettes and plinth blocks, and finger-jointed or edge-glued moulding or millwork blanks (whether or not resawn). The scope includes continuously shaped wood in the forms of dowels, building components such as interior paneling and jamb parts, and door components such as rails, stiles, interior and exterior door frames or jambs (including split, flat, stop applied, single- or double-rabbeted), frame or jamb kits, and packaged door frame trim or casing sets, whether or not the door components are imported as part of a door kit or set.
The covered products may be solid wood, laminated, finger-jointed, edge-glued, face-glued, or otherwise joined in the production or remanufacturing process and are covered by the scope whether imported raw, coated (
All wood mouldings and millwork products are included within the scope even if they are trimmed; cut-to-size; notched; punched; drilled; or have undergone other forms of minor processing.
Subject merchandise also includes wood mouldings and millwork products that have been further processed in a third country, including but not limited to trimming, cutting, notching, punching, drilling, coating, or any other processing that would not otherwise remove the merchandise from the scope of this investigation if performed in the country of manufacture of the in-scope product.
Excluded from the scope of this investigation are countertop/butcherblocks imported as a full countertop/butcherblock panel, exterior fencing, exterior decking and exterior siding products (including solid wood siding, non-wood siding (
Excluded from the scope of this investigation are all products covered by the scope of the antidumping duty order on
Excluded from the scope of this investigation are all products covered by the scope of the antidumping duty order on
Excluded from the scope of this investigation are all products covered by the scope of the antidumping duty order on
Excluded from the scope of this investigation are all products covered by the scope of the antidumping duty order on
Imports of wood mouldings and millwork products are primarily entered under the following Harmonized Tariff Schedule of the United States (HTSUS) numbers: 4409.10.4010, 4409.10.4090, 4409.10.4500,
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and exporters of wood mouldings and millwork products (millwork products) from the People's Republic of China (China).
Applicable January 4, 2021.
Irene Gorelik or Faris Montgomery, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6905 or (202) 482-1537, respectively.
On June 12, 2020, Commerce published in the
A summary of the events that occurred since Commerce published the
The period of investigation (POI) is January 1, 2019 through December 31, 2019.
The products covered by this investigation are millwork products from China. For a full description of the scope of this investigation,
On August 5, 2020, we issued a Preliminary Scope
The subsidy programs under investigation and the issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues raised by parties, and to which we responded in the Issues and Decision Memorandum, is attached to this notice at Appendix II.
Commerce conducted this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce determines that there is a
In making this final determination, Commerce relied, in part, on facts available pursuant to section 776(a) of the Act. Additionally, as discussed in the Issues and Decision Memorandum, because one or more respondents did not act to the best of their ability in responding to our requests for information, we drew adverse inferences, where appropriate, in selecting from among the facts otherwise available, pursuant to section 776(b) of the Act. For further information,
Commerce normally verifies information relied upon in making its final determination, pursuant to section 782(i)(1) of the Act. However, during the course of this investigation, Commerce was unable to conduct on-site verification due to travel restrictions.
Based on our review and analysis of the comments received from parties, we made certain changes to Yinfeng's subsidy rate calculations. For a discussion of these changes,
In accordance with section 705(c)(l)(B)(i) of the Act, we calculated a rate for Yinfeng, a producer/exporter of subject merchandise selected for individual examination in this investigation. Commerce assigned rates based entirely on facts otherwise available with adverse inferences pursuant to section 776 of the Act to Yuanqiao, a producer/exporter of subject merchandise selected for individual examination which failed to participate on this investigation.
Section 705(c)(5)(A) of the Act provides that in the final determination, Commerce shall determine an estimated all-others rate for companies not individually examined. This rate shall be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any zero and
In this investigation, Commerce assigned a rate based entirely on facts available for Yuanqiao. Therefore, the only rate that is not zero,
Commerce determines that the following estimated countervailable subsidy rates exist:
Commerce intends to disclose to interested parties the calculations and analysis performed in this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of the publication of this notice in accordance with 19 CFR 351.224(b).
As a result of our
In accordance with section 703(d) of the Act, effective October 10, 2020, we instructed CBP to discontinue the suspension of liquidation of all entries at that time, but to continue the suspension of liquidation of all entries between June 12, 2020 and October 9, 2020.
If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will issue a CVD order, reinstate the suspension of liquidation and require a cash deposit of estimated CVDs for such entries of subject merchandise in the amounts indicated above, in accordance with section 706(a) of the Act. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated, and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of our affirmative determination that countervailable subsidies are being provided to producers and exporters of millwork products from China. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance. Because the final determination in this proceeding is affirmative, in accordance with section 705(b) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of millwork products from China no later than 45 days after our final determination. If the ITC determines
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act and 19 CFR 351.210(c).
The merchandise subject to this investigation consists of wood mouldings and millwork products that are made of wood (regardless of wood species), bamboo, laminated veneer lumber (LVL), or of wood and composite materials (where the composite materials make up less than 50 percent of the total merchandise), and which are continuously shaped wood or finger-jointed or edge-glued moulding or millwork blanks (whether or not resawn). The merchandise subject to this investigation can be continuously shaped along any of its edges, ends, or faces.
The percentage of composite materials contained in a wood moulding or millwork product is measured by length, except when the composite material is a coating or cladding. Wood mouldings and millwork products that are coated or clad, even along their entire length, with a composite material, but that are otherwise comprised of wood, LVL, or wood and composite materials (where the non-coating composite materials make up 50 percent or less of the total merchandise) are covered by the scope.
The merchandise subject to this investigation consists of wood, LVL, bamboo, or a combination of wood and composite materials that is continuously shaped throughout its length (with the exception of any endwork/dados), profiled wood having a repetitive design in relief, similar milled wood architectural accessories, such as rosettes and plinth blocks, and finger-jointed or edge-glued moulding or millwork blanks (whether or not resawn). The scope includes continuously shaped wood in the forms of dowels, building components such as interior paneling and jamb parts, and door components such as rails, stiles, interior and exterior door frames or jambs (including split, flat, stop applied, single- or double-rabbeted), frame or jamb kits, and packaged door frame trim or casing sets, whether or not the door components are imported as part of a door kit or set.
The covered products may be solid wood, laminated, finger-jointed, edge-glued, face-glued, or otherwise joined in the production or remanufacturing process and are covered by the scope whether imported raw, coated (
All wood mouldings and millwork products are included within the scope even if they are trimmed; cut-to-size; notched; punched; drilled; or have undergone other forms of minor processing.
Subject merchandise also includes wood mouldings and millwork products that have been further processed in a third country, including but not limited to trimming, cutting, notching, punching, drilling, coating, or any other processing that would not otherwise remove the merchandise from the scope of this investigation if performed in the country of manufacture of the in-scope product.
Excluded from the scope of this investigation are countertop/butcherblocks imported as a full countertop/butcherblock panel, exterior fencing, exterior decking and exterior siding products (including solid wood siding, non-wood siding (
Excluded from the scope of this investigation are all products covered by the scope of the countervailing duty order on
Excluded from the scope of this investigation are all products covered by the scope of the countervailing duty order on
Excluded from the scope of this investigation are all products covered by the scope of the countervailing duty order on
Imports of wood mouldings and millwork products are primarily entered under the following Harmonized Tariff Schedule of the United States (HTSUS) numbers: 4409.10.4010, 4409.10.4090, 4409.10.4500, 4409.10.5000, 4409.22.4000, 4409.22.5000,4409.29.4100, and 4409.29.5100. Imports of wood mouldings and millwork products may also enter under HTSUS numbers: 4409.10.6000,4409.10.6500, 4409.22.6000, 4409.22.6500, 4409.29.6100, 4409.29.6600, 4418.20.4000, 4418.20.8030, 4418.20.8060, 4418.99.9095 and 4421.99.9780. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that imports of wood mouldings and millwork products (millwork products) from Brazil are not being, or are not likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2019 through December 31, 2019.
Applicable January 4, 2021.
George Ayache or Suzanne Lam, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2623 or (202) 482-0783, respectively.
On August 12, 2020, Commerce published the
The products covered by this investigation are millwork products from Brazil. For a complete description of the scope of this investigation,
On August 5, 2020, we issued a Preliminary Scope Memorandum.
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
All issues raised in the case and rebuttal briefs that were submitted by parties in this investigation are addressed in the Issues and Decision Memorandum. For a list of the issues raised by interested parties and addressed in the Issues and Decision Memorandum,
Based on our review and analysis of the comments received from interested parties, we made certain changes to the margin calculations for Araupel S.A./Braslumber Industria de Molduras Ltda./BrasPine Madeiras Ltda. For a discussion of these changes,
The final estimated weighted-average dumping margin is as follows:
Because the weighted-average dumping margin is zero, we determine that millwork products from Brazil are not being, or are not likely to be, sold in the United States at LTFV. Commerce has not calculated an estimated weighted-average dumping margin for all other producers and exporters pursuant to sections 735(c)(1)(B) and (c)(5) of the Act because it has not made a final affirmative determination of sales at LTFV.
We intend to disclose to parties in this proceeding the calculations performed for this final determination within five days of the date of publication of this notice, in accordance with 19 CFR 351.224(b).
In the
In accordance with section 735(d) of the Act, we will notify the International Trade Commission of our final determination. As our final determination is negative, this proceeding is terminated in accordance with section 735(c)(2) of the Act.
This notice will serve as a reminder to the parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act, and 19 CFR 351.210(c).
The merchandise subject to this investigation consists of wood mouldings and millwork products that are made of wood (regardless of wood species), bamboo, laminated veneer lumber (LVL), or of wood and composite materials (where the composite materials make up less than 50 percent of the total merchandise), and which are continuously shaped wood or finger-jointed or edge-glued moulding or millwork blanks (whether or not resawn). The merchandise subject to this investigation can be continuously shaped along any of its edges, ends, or faces.
The percentage of composite materials contained in a wood moulding or millwork product is measured by length, except when the composite material is a coating or cladding. Wood mouldings and millwork products that are coated or clad, even along their entire length, with a composite material, but that are otherwise comprised of wood, LVL, or wood and composite materials (where the non-coating composite materials make up 50 percent or less of the total merchandise) are covered by the scope.
The merchandise subject to this investigation consists of wood, LVL, bamboo, or a combination of wood and composite materials that is continuously shaped throughout its length (with the exception of any endwork/dados), profiled wood having a repetitive design in relief, similar milled wood architectural accessories, such as rosettes and plinth blocks, and finger-jointed or edge-glued moulding or millwork blanks (whether or not resawn). The scope includes continuously shaped wood in the forms of dowels, building components such as interior paneling and jamb parts, and door components such as rails, stiles, interior and exterior door frames or jambs (including split, flat, stop applied, single—or double-rabbeted), frame or jamb kits, and packaged door frame trim or casing sets, whether or not the door components are imported as part of a door kit or set.
The covered products may be solid wood, laminated, finger-jointed, edge-glued, face-glued, or otherwise joined in the production or remanufacturing process and are covered by the scope whether imported raw, coated (
All wood mouldings and millwork products are included within the scope even if they are trimmed; cut-to-size; notched; punched; drilled; or have undergone other forms of minor processing.
Subject merchandise also includes wood mouldings and millwork products that have been further processed in a third country, including but not limited to trimming, cutting, notching, punching, drilling, coating, or any other processing that would not otherwise remove the merchandise from the scope of this investigation if performed in the country of manufacture of the in-scope product.
Excluded from the scope of this investigation are countertop/butcherblocks imported as a full countertop/butcherblock panel, exterior fencing, exterior decking and exterior siding products (including solid wood siding, non-wood siding (
Imports of wood mouldings and millwork products are primarily entered under the following Harmonized Tariff Schedule of the United States (HTSUS) numbers: 4409.10.4010, 4409.10.4090, 4409.10.4500, 4409.10.5000, 4409.22.4000, 4409.22.5000,4409.29.4100, and 4409.29.5100. Imports of wood mouldings and millwork products may also enter under HTSUS numbers: 4409.10.6000,4409.10.6500, 4409.22.6000, 4409.22.6500, 4409.29.6100, 4409.29.6600, 4418.20.4000, 4418.20.8030, 4418.20.8060, 4418.99.9095 and 4421.99.9780. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping (AD) and countervailing duty (CVD) orders on citric acid and certain citrate salts from the People's Republic of China (China) would likely lead to a continuation or recurrence of dumping, countervailable subsidies, and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the AD and CVD orders.
Applicable January 4, 2021.
Ian Hamilton, AD/CVD Operations, Office II, or Zachary Shaykin, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4798 and (202) 482-2638, respectively.
On May 29, 2009, Commerce published in the
As a result of its reviews, Commerce determined, pursuant to sections 751(c)(1) and 752(c) of the Act, that revocation of the
The scope of the orders includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend. The scope of the order also includes all forms of crude calcium citrate, including dicalcium citrate monohydrate, and tricalcium citrate tetrahydrate, which are intermediate products in the production of citric acid, sodium citrate, and potassium citrate. The scope of the order does not include calcium citrate that satisfies the standards set forth in the United States Pharmacopeia and has been mixed with a functional excipient, such as dextrose or starch, where the excipient constitutes at least 2 percent, by weight, of the product. The scope of the order includes the hydrous and anhydrous forms of citric acid, the dihydrate and anhydrous forms of sodium citrate, otherwise known as citric acid sodium salt, and the monohydrate and monopotassium forms of potassium citrate. Sodium citrate also includes both trisodium citrate and monosodium citrate, which are also known as citric acid trisodium salt and citric acid monosodium salt, respectively. Citric acid and sodium citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the Harmonized Tariff Schedule of the United States (HTSUS), respectively. Potassium citrate and crude calcium citrate are classifiable under 2918.15.5000 and 3824.90.9290 of the HTSUS, respectively. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.90.9290 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope is dispositive.
As a result of the determinations by Commerce and the ITC that revocation of the
The effective date of the continuation of the
This notice also serves as the only reminder to parties subject to APO of their responsibility concerning the return, destruction, or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.
These five-year sunset reviews and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of request for nominations.
NMFS, on behalf of the Secretary of Commerce, is seeking nominations for the advisory committee established under the Western and Central Pacific Fisheries Convention Implementation Act (Act). The Permanent Advisory Committee, composed of individuals from groups concerned with the fisheries covered by the Western and Central Pacific Fisheries Convention (Convention), will be given the opportunity to provide input to the U.S. Commissioners to the Western and Central Pacific Fisheries Commission (Commission) regarding the deliberations and decisions of the Commission.
Nominations must be received no later than February 18, 2021. Nominations received after the deadline will not be accepted.
Nominations should be directed to Michael Tosatto, Regional Administrator, NMFS Pacific Islands Regional Office, and may be submitted by any of the following means:
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•
•
Emily Reynolds, NMFS Pacific Islands Regional Office; telephone: 808-725-5039; facsimile: 808-725-5215; email:
The objective of the Convention is to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean in accordance with the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS) and the Agreement for the Implementation of the Provisions of the UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. The Convention establishes the Commission, the secretariat of which is based in Pohnpei, Federated States of Micronesia.
The Convention applies to all highly migratory fish stocks (defined as all fish stocks of the species listed in Annex I of the UNCLOS occurring in the Convention Area, and such other species of fish as the Commission may determine), except sauries.
The United States actively supported the negotiations and the development of the Convention and signed the Convention when it was opened for signature in 2000. It participated as a cooperating non-member of the Commission since it became operational in 2005. The United States became a Contracting Party to the Convention and a full member of the Commission when it ratified the Convention in January 2007. Under the Act, the United States is to be represented on the Commission by five U.S. Commissioners, appointed by the President.
The Act (16 U.S.C. 6902) provides (in section 6902(d)) that the Secretary of Commerce, in consultation with the U.S. Commissioners to the Commission, will appoint individuals as members of the advisory committee established under the Act, referred to here as the “Permanent Advisory Committee”.
The appointed members of the Permanent Advisory Committee are to include not less than 15 nor more than 20 individuals selected from the various groups concerned with the fisheries covered by the Convention, providing, to the extent practicable, an equitable balance among such groups. On behalf of the Secretary of Commerce, NMFS is now seeking nominations for these appointments.
In addition to the 15-20 appointed members, the Permanent Advisory Committee includes the chair of the Western Pacific Fishery Management Council's Advisory Committee (or designee), and officials of the fisheries management authorities of American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (or their designees).
Members of the Permanent Advisory Committee will be invited to attend all non-executive meetings of the U.S. Commissioners to the Commission and at such meetings will be given opportunity to examine and be heard on all proposed programs of investigation, reports, recommendations, and regulations of the Commission.
Each appointed member of the Permanent Advisory Committee will serve for a term of 2 years and is eligible for reappointment. This request for nominations is for the term to begin on August 3, 2021, and is for a term of 2 consecutive years.
The Secretaries of Commerce and State will furnish the Permanent Advisory Committee with relevant information concerning fisheries and international fishery agreements.
NMFS, on behalf of the Secretary of Commerce, will provide to the Permanent Advisory Committee administrative and technical support services as are necessary for its effective functioning.
Appointed members of the Permanent Advisory Committee will serve without pay, but while away from their homes or regular places of business in the performance of services for the advisory committee will be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as
Nominations for the Permanent Advisory Committee should be submitted to NMFS (see
16 U.S.C. 6902.
National Center for Education Statistics, Institute of Education Sciences, Department of Education.
Notice.
The Secretary announces dates for State educational agencies (SEAs) to submit expenditure and revenue data and average daily attendance statistics on ED Form 2447 (the National Public Education Financial Survey (NPEFS)) for fiscal year (FY) 2020, revisions to those reports, and revisions to reports for previous fiscal years. The Secretary sets these dates to ensure that data are available to serve as the basis for timely distribution of Federal funds. The U.S. Census Bureau is the data collection agent for this request of the Department of Education's (the Department's) National Center for Education Statistics (NCES). The data will be published by NCES and will be used by the Secretary in the calculation of allocations for FY 2022 appropriated funds.
SEAs can begin submitting data on Friday, January 29, 2021. SEAs are urged to submit accurate and complete data by Friday, March 26, 2021, to facilitate timely processing.
The deadline for the final submission of all data, including any revisions to previously submitted data for FY 2019 and FY 2020, is Friday, August 13, 2021. Any resubmissions of FY 2019 or FY 2020 data by SEAs in response to requests for clarification or reconciliation or other inquiries by NCES or the Census Bureau must be completed as soon as possible, but no later than Tuesday, September 7, 2021. All outstanding data issues must be reconciled or resolved by the SEAs, NCES, and the Census Bureau as soon as possible, but no later than September 7, 2021.
SEAs are encouraged to submit data online using the interactive survey form on the NPEFS data collection website at:
In the alternative, SEAs may mail ED Form 2447 to: U.S. Census Bureau, ATTENTION: Economic Reimbursable Surveys Division, 4600 Silver Hill Road, Suitland, MD 20746.
If an SEA's submission is received by the Census Bureau after August 13, 2021, the SEA must show one of the following as proof that the submission was mailed on or before that date:
1. A legibly dated U.S. Postal Service postmark.
2. A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
3. A dated shipping label, invoice, or receipt from a commercial carrier.
4. Any other proof of mailing acceptable to the Secretary.
If the SEA mails ED Form 2447 through the U.S. Postal Service, the Secretary does not accept either of the following as proof of mailing:
1. A private metered postmark.
2. A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, an SEA should check with its local post office.
Stephen Q. Cornman, NPEFS Project Director, National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone: (202) 245-7753. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
Under section 153(a)(1)(I) of the Education Sciences Reform Act of 2002, 20 U.S.C. 9543(a)(1)(I), which authorizes NCES to gather data on the financing and management of education, NCES collects data annually from SEAs through ED Form 2447. The report from SEAs includes attendance, revenue, and expenditure data from which NCES determines a State's “average per-pupil expenditure” (SPPE) for elementary and secondary education, as defined in section 8101(2) of the Elementary and Secondary Education Act of 1965, as amended (ESEA) (20 U.S.C. 7801(2)).
In addition to using the SPPE data as general information on the financing of elementary and secondary education, the Secretary uses these data directly in calculating allocations for certain formula grant programs, including, but not limited to, title I, part A, of the ESEA, Impact Aid, and Indian Education programs. Other programs, such as the Education for Homeless Children and Youth program under title VII of the McKinney-Vento Homeless Assistance Act, and the Student Support and Academic Enrichment Grants under title IV, part A of the ESEA make use of SPPE data indirectly because their formulas are based, in whole or in part, on State title I, part A, allocations.
In January 2021, the Census Bureau, acting as the data collection agent for NCES, will email ED Form 2447 to SEAs, with instructions, and will request that SEAs commence submitting FY 2020 data to the Census Bureau on Thursday, January 29, 2021. SEAs are urged to submit accurate and complete
Submissions by SEAs to the Census Bureau will be analyzed for accuracy and returned to each SEA for verification. SEAs must submit all data, including any revisions to FY 2019 and FY 2020 data, to the Census Bureau no later than Friday, August 13, 2021. Any resubmissions of FY 2019 or FY 2020 data by SEAs in response to requests for clarification or reconciliation or other inquiries by NCES or the Census Bureau must be completed by Tuesday, September 7, 2021. Between August 13, 2021, and September 7, 2021, SEAs may also, on their own initiative, resubmit data to resolve issues not addressed in their final submission of NPEFS data by August 13, 2021. All outstanding data issues must be reconciled or resolved by the SEAs, NCES, and the Census Bureau as soon as possible, but no later than September 7, 2021.
In order to facilitate timely submission of data, the Census Bureau will send reminder notices to SEAs in June and July of 2021.
Having accurate, consistent, and timely information is critical to an efficient and fair allocation process and to the NCES statistical process. The Department establishes Friday, August 13, 2021, as the final date by which the SEAs must submit data using either the interactive survey form on the NPEFS data collection website at:
Any resubmissions of FY 2019 or FY 2020 data by SEAs in response to requests for clarification or reconciliation or other inquiries by NCES or the Census Bureau must be completed through the interactive survey form on the NPEFS data collection website or ED Form 2447 by Tuesday, September 7, 2021. If an SEA submits revised data after the final deadline that result in a lower SPPE figure, the SEA's allocations may be adjusted downward, or the Department may direct the SEA to return funds. SEAs should be aware that all of these data are subject to audit and that, if any inaccuracies are discovered in the audit process, the Department may seek recovery of overpayments for the applicable programs.
The following are important dates in the data collection process for FY 2020 data and revisions to reports for previous fiscal years:
You may also access documents of the Department published in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of decision and order.
The Department of Energy (“DOE”) gives notification of a Decision and Order (Case Number 2020-002) that grants to Senneca Holdings (“Senneca”) a waiver from specified portions of the DOE test procedure for determining the energy consumption of specified walk-in cooler and walk-in freezer door (“walk-in door”) basic models. Under the Decision and Order, Senneca is required to test and rate the specified basic models of its walk-in doors in accordance with the alternate test procedure specified in the Decision and Order.
The Decision and Order is effective on January 4, 2021. The Decision and Order will terminate upon the compliance date of any future amendment to the test procedure for walk-in cooler and walk-in freezer doors located at title 10 of the Code of Federal Regulations (“CFR”), part 431, subpart R, appendix A that addresses the issues presented in this waiver. At such time, Senneca must use the relevant test procedure for this equipment for any testing to demonstrate compliance with the applicable standards, and any other representations of energy use.
Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Email:
Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-33, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585-0103.
In accordance with Title 10 of the Code of Federal Regulations (10 CFR 431.401(f)(2)), DOE gives notification of the issuance of its Decision and Order as set forth below. The Decision and Order grants Senneca a waiver from the applicable test procedure at 10 CFR part 431, subpart R, appendix A for specified basic models of walk-in doors, and provides that Senneca must test and rate such equipment using the alternate test procedure specified in the Decision and Order. Senneca's representations concerning the energy consumption of the specified basic models must be based on testing according to the provisions and restrictions in the alternate test procedure set forth in the Decision and Order, and the representations must fairly disclose the test results. Distributors, retailers, and private labelers are held to the same requirements when making representations regarding the energy consumption of this equipment. (42 U.S.C. 6314(d))
Consistent with 10 CFR 431.401(j), not later than March 5, 2021, any manufacturer not currently distributing in commerce in the United States equipment employing a technology or characteristic that results in the same need for a waiver from the applicable test procedure must submit a petition for waiver. Manufacturers not currently distributing such equipment in commerce in the United States must petition for and be granted a waiver prior to the distribution in commerce of that equipment in the United States. Manufacturers may also submit a request for interim waiver pursuant to the requirements of 10 CFR 431.401.
This document of the Department of Energy was signed on December 28, 2020, by Daniel R. Simmons, Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
The Energy Policy and Conservation Act, as amended (“EPCA”),
Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s))
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use or estimated annual operating cost of covered equipment during a representative average use cycle and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C.6314(a)(2)) The test procedure for walk-in doors is contained at 10 CFR part 431, subpart R, appendix A, “Uniform Test Method for the Measurement of Energy Consumption of the Components of Envelopes of Walk-In Coolers and Walk-In Freezers” (“Appendix A”).
Under 10 CFR 431.401, any interested person may submit a petition for waiver from DOE's test procedure requirements. DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 431.401(f)(2). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures.
By letter dated March 13, 2020, Senneca Holdings (“Senneca”) filed a petition for waiver and a petition for interim waiver from the DOE test procedure applicable to walk-in doors set forth in Appendix A. (Senneca, No. 1)
On September 28, 2020, DOE published a notification that announced its receipt of the petition for waiver and granted Senneca an interim waiver. 85 FR 60771 (“Notification of Petition for Waiver”). In the Notification of Petition for Waiver, DOE presented Senneca's claim that results from testing the specified basic models according to Appendix A are unrepresentative of actual energy usage because of the assigned PTO value. DOE also summarized Senneca's requested alternate test procedure, which would require testing the specified basic models according to Appendix A, except the PTO value for door motors would be modified from 25 percent to 97 percent for the specified freight and passage doors.
As explained in the Notification of Petition for Waiver, DOE considered the potential range of parameters affecting door motor operating time and evaluated the PTO based on the most energy consumptive scenarios for both the horizontally and vertically opening door basic models specified by Senneca. 85 FR 60771, 60774. In its calculations, DOE used the largest door opening at the slowest speed and standard duty cycle specified in the product literature of the door motors associated with Senneca's specified basic models.
In the Notification of Petition for Waiver, DOE also solicited comments from interested parties on all aspects of the petition and the specified alternate test procedure. 85 FR 60771. In response, DOE received one substantive comment
As discussed previously, DOE may grant a waiver if either (1) the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or (2) the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 431.401(f)(2). In response to Hussmann's assertion that the criteria for granting a waiver to Senneca has not been met, DOE notes that while Senneca is not prevented from testing the basic models specified in its waiver petition, the performance data demonstrate that the current test procedure evaluates the energy consumption of its basic models with motorized door openers in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. In response to Hussmann's comment that compliance with current Federal standards could be achieved, DOE notes that the criteria which allow DOE to grant a waiver do not depend on whether investment or redesign could make the basic models compliant with the standard. EPCA does not require that a manufacturer design a particular type of equipment to enable it to be tested under a given test procedure. Instead, a test procedure must, among other things, be reasonably designed to produce test results reflecting the energy efficiency of a given type of industrial equipment. See generally 42 U.S.C. 6314(a)(2). Additionally, the required use of 97 percent is consistent with waivers previously granted in response to petitions that presented the same issue as in Senneca's petition. See Notice of Decision and Order granting a waiver to Jamison Door (Case No. 2017-009), 83 FR 53460 (Oct. 23, 2018); Notice of Decision and Order granting a waiver to HH Technologies (Case No. 2018-001), 83 FR 53457 (Oct. 23, 2018); and Extension of Waiver to HH Technologies (Case No. 2018-011), 84 FR 1434 (Feb. 4, 2019).
For the reasons explained here and in the Notification of Petition for Waiver, absent a waiver the basic models identified by Senneca in its petition cannot be tested and rated for energy consumption on a basis representative of their true energy consumption characteristics. DOE has reviewed the recommended procedure suggested by Senneca and concludes that it will allow for the accurate measurement of the energy use of the equipment, while alleviating the testing issues associated with Senneca's implementation of DOE's applicable walk-in door test procedure for the specified basic models. Thus, DOE is requiring that Senneca test and rate walk-in door basic models according to the alternate test procedure specified in this Decision and Order, which is identical to the procedure provided in the interim waiver.
This Decision and Order is applicable only to the basic models listed and does not extend to any other basic models. DOE evaluates and grants waivers for only those basic models specifically set out in the petition, not future models that may be manufactured by the petitioner.
Senneca may request that DOE extend the scope of this waiver to include additional basic models that employ the same technology as those listed in this waiver. 10 CFR 431.401(g). Senneca may also submit another petition for waiver from the test procedure for additional basic models that employ a different technology and meet the criteria for test procedure waivers. 10 CFR 431.401(a)(1).
DOE notes that it may modify or rescind the waiver at any time upon DOE's determination that the factual basis underlying the petition for waiver
After careful consideration of all the material that was submitted by Senneca, the various public-facing materials (
(1) Senneca must, as of the date of publication of this Order in the
(2) The alternate test procedure for the Senneca basic models identified in paragraph (1) of this Order is the test procedure for walk-in doors prescribed by DOE at 10 CFR part 431, subpart R, appendix A, except that the PTO value specified in section 4.5.2 “Direct Energy Consumption of Electrical Components of Non-Display Doors” shall be 97 percent for door motors. All other requirements of 10 CFR part 431, subpart R, appendix A and DOE's regulations remain applicable.
(3)
(4) This waiver shall remain in effect according to the provisions of 10 CFR 431.401.
(5) DOE issues this waiver on the condition that the door performance characteristics, statements, representations, test data, and documentary materials provided by Senneca are valid. If Senneca makes any modifications to the controls or configurations of these basic models, such modifications will render the waiver invalid with respect to that basic model, and Senneca will either be required to use the current Federal test method or submit a new application for a test procedure waiver. DOE may rescind or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of a basic model's true energy consumption characteristics. 10 CFR 431.401(k)(1). Likewise, Senneca may request that DOE rescind or modify the waiver if Senneca discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 431.401(k)(2).
(6) Senneca remains obligated to fulfill all applicable requirements set forth at 10 CFR part 429.
Signed in Washington, DC, on December 28, 2020.
Office of Environment, Health, Safety and Security, Department of Energy.
Notice and request for comments.
The Department of Energy (DOE), pursuant to the Paperwork Reduction Act of 1995, intends to extend for three years, an information collection request with the Office of Management and Budget (OMB). The information continues to be necessary to provide DOE with the information needed to reduce the number of workers currently exposed to beryllium in the course of their work at sites managed by DOE or its contractors; minimize the levels of and potential for exposure to beryllium; and provide medical surveillance to ensure early detection of chronic beryllium disease.
Comments regarding this proposed information collection must be received on or before March 5, 2021. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Written comments may be sent to James Dillard, U.S. Department of Energy, Office of Health, Safety and Security, AU-11/Germantown Building, 1000 Independence Avenue SW, Washington, DC 20585, or by email at:
Requests for additional information or copies of the information collection instrument and instructions should be directed to James Dillard, U.S. Department of Energy, Office of Health, Safety and Security, AU-11/Germantown Building, 1000 Independence Avenue SW, Washington, DC 20585, or by email at
This document of the Department of Energy was signed on December 23, 2020, by Matthew B. Moury, Associate Under Secretary for Environment, Health, Safety and Security, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Take notice that on December 18, 2020, Algonquin Gas Transmission, LLC (Algonquin), 5400 Westheimer Court, Houston, Texas 77056, filed in the above referenced docket a prior notice pursuant to Section 157.205 and 157.208 of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act and the blanket certificate issued to Algonquin by the Commission in Docket No. CP87-317-000,
In addition to publishing the full text of this document in the
Any questions concerning this application should be directed to Lisa A. Connolly, Director, Regulatory, Algonquin Gas Transmission, LLC, P.O. Box 1642, Houston, Texas 77251-1642, by telephone at (713) 627-4102, by fax at (713) 627-5947, or by email at
There are three ways to become involved in the Commission's review of this project: You can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on February 26, 2021. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before February 26, 2021. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP21-20-000 in your submission.
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at:
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on December 15, 2020, Colorado Interstate Gas Company, L.L.C. (CIG), Post Office Box 1087, Colorado Springs, Colorado 80944, filed in the above referenced docket, a prior notice request pursuant to sections 157.205 and 157.213(b) of the Commission's regulations under the Natural Gas Act (NGA) and CIG's blanket certificate issued in Docket No. CP83-21-000, for authorization to reclassify an injection/withdrawal well (Well No. 12) to an observation well at the Flank Natural Gas Storage Field (Flank) located in Baca County, Colorado. CIG states that the requested reclassification of Well No. 12 involves no change in the certificated physical parameters of Flank, including total inventory, reservoir pressure, reservoir and buffer boundaries, and/or capacity. Therefore, CIG states that there will be no impact on the service it provides to its customers. CIG further states that no construction related activities will be required and there will be no environmental impacts associated with the requested reclassification, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
In addition to publishing the full text of this document in the
Any questions regarding this prior notice request should be directed to Francisco Tarin, Director, Regulatory, Colorado Interstate Gas Company, L.L.C.; P.O. Box 1087, Colorado Springs, Colorado 80944 at (719) 667-7517 or by email to
There are three ways to become involved in the Commission's review of this project: You can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on February 26, 2021. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before February 26, 2021.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP21-18-000 in your submission.
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below.
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail at: P.O. Box 1087, Colorado Springs, Colorado 80944 or email (with a link to the document) at:
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that on December 18, 2020, Texas Gas Transmission, LLC (Texas Gas) filed a prior notice application pursuant to sections 157.205(b), 157.208(c) and 157.210 of the Commission's regulations under the Natural Gas Act (NGA), and Texas Gas' blanket certificate issued in Docket No. CP82-407. Texas Gas requests authorization to install a new 3,750 horsepower natural gas-fired reciprocating engine caterpillar G3612 unit, discharge gas cooler, water cooler, unit blowdown vent/silencer, yard and station piping, and other ancillary auxiliary equipment at Texas Gas' existing Midland 3 Compressor Station junction located in Muhlenberg County, Kentucky, as more fully set forth in the application, which is on file with the
In addition to publishing the full text of this document in the
Any questions regarding this application may be directed to Texas Gas' Supervisor of Regulatory Affairs, Juan Eligio, Jr. at (713) 479-3480 or
There are three ways to become involved in the Commission's review of this project: You can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on February 26, 2021. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely, and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before February 26, 2021. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP21-19-000 in your submission.
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email (with a link to the document) at: 9 Greenway Plaza, Houston, Texas 77046 or at
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
This is a supplemental notice in the above-referenced proceeding of RE Slate 1 LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is January 19, 2021.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that on December 22, 2020, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on November 24, 2020, the Hoosier Energy Rural Electric Cooperative, Inc. submitted its tariff filing: Compliance Filing for the October 26th Order to be effective 11/25/2020.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the Lines DT and DS Replacement Project Amendment (Project), proposed by Southern Star Central Gas Pipeline, Inc. (Southern Star) in the above-referenced docket. Southern Star requests authorization to abandon Lines DT and DS entirely in-place, rather than primarily by removal in Anderson and Franklin Counties, Kansas. Southern Star contends that the abandonment of the pipeline facilities in-place would reduce impacts on landowners and the environment.
The EA assesses the potential environmental effects of the abandonment of the Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed Project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The proposed Project includes the abandonment in-place of approximately 31.8 and 31.4 miles of the Line DT and Line DS pipelines, respectively in Anderson and Franklin Counties, Kansas.
The Commission mailed a copy of the
The EA is not a decision document. It presents the Commission staff's independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding. Any person wishing to comment on the EA may do so. Your comments should focus on the EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that we receive your comments in Washington, DC on or before 5:00 p.m. Eastern Time on January 27, 2021.
For your convenience, there are three methods you can use to file 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 eComment feature on the Commission's website (
(2) You can also file your comments electronically using the eFiling feature on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP21-2-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission's decision. At this point in this proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission's Rules of Practice and Procedures (18 CFR 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; request for public comment.
In accordance with the Clean Air Act, as amended (“CAA” or the “Act”), notice is hereby given of a proposed Settlement Agreement to resolve petitions for review filed by the State of Wyoming (“Wyoming”) and PacifiCorp with respect to PacifiCorp's Wyodak electric generating unit (EGU). In 2014, Wyoming and PacifiCorp filed petitions for review in the United States Court of Appeals for the Tenth Circuit, challenging EPA's final rule, in which the Agency partially approved and partially disapproved elements of Wyoming's Regional Haze State Implementation Plan (SIP), and promulgated a Federal Implementation Plan (FIP) to address the disapproved elements. In the Final rule, EPA,
Written comments on the proposed settlement agreement must be received by February 3, 2021.
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2020-0717, online at
The EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Stephanie L. Hogan, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564-3244; email address:
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2020-0717) contains a copy of the proposed Settlement Agreement.
The electronic version of the public docket for this action contains a copy of the proposed Settlement Agreement, and is available through
The proposed Settlement Agreement would resolve Wyoming's and PacifiCorp's challenges to the following action: Approval, Disapproval and Promulgation of Implementation Plans; State of Wyoming; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze; final rule, 79 FR 5032 (January 30, 2014).
The proposed Settlement Agreement establishes deadlines by which Wyoming and EPA will take certain specified actions with respect to development of and action on a SIP revision addressing NO
In accordance with section 113(g) of the CAA, for a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed Settlement Agreement. EPA or the Department of Justice may withdraw or withhold consent to the proposed Settlement Agreement if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act.
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2020-0717, via
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with the Clean Air Act, as amended (CAA or the Act), notice is given of a proposed consent decree in
Written comments on the proposed consent decree must be received by February 3, 2021.
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2020-0652, online at
EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Meredith G. Miller, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone (202) 564-8572; email address
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2020-0652) contains a copy of the proposed consent decree.
The electronic version of the public docket for this action contains a copy of the proposed consent decree, and is available through
The proposed consent decree would require EPA to act on United's petition for a small refinery hardship exemption from its 2019 RFS obligations. On or about December 18, 2019, United submitted its petition seeking a small refinery exemption from the RFS program pursuant to CAA section 211(
In accordance with section 113(g) of the CAA, for a period of thirty (30) days following the date of publication of this document, the Agency will accept written comments relating to the proposed consent decree. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act.
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2020-0652, via
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is announcing the availability of the final Toxic Substances Control Act (TSCA) risk evaluation of Asbestos Part 1 (Chrysotile Asbestos). The purpose of conducting risk evaluations under TSCA is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation, without consideration of costs or other nonrisk factors. EPA has determined that specific conditions of use of Chrysotile Asbestos present an unreasonable risk of injury to health. For those conditions of use for which EPA has found an unreasonable risk, EPA must take regulatory action to address that unreasonable risk through risk management measures enumerated in TSCA. EPA has also determined that specific conditions of use do not present unreasonable risk of injury to health or the environment. For those conditions of use for which EPA has found no
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2019-0501, is available online at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Public Reading Room are closed to visitors with limited exceptions. The EPA/DC staff continue to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
This action is directed to the public in general. This action may be of interest to persons who are or may be interested in risk evaluations of chemical substances under TSCA, 15 U.S.C. 2601
TSCA section 6, 15 U.S.C. 2605, requires EPA to conduct risk evaluations to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator, under the conditions of use.” 15 U.S.C. 2605(b)(4)(A). TSCA sections 6(b)(4)(A) through (H) enumerate the deadlines and minimum requirements applicable to this process, including provisions that provide instruction on chemical substances that must undergo evaluation, the minimum components of a TSCA risk evaluation, and the timelines for public comment and completion of the risk evaluation. TSCA also requires that EPA operate in a manner that is consistent with the best available science, make decisions based on the weight of the scientific evidence and consider reasonably available information. 15 U.S.C. 2625(h), (i), and (k). TSCA section 6(i) directs that a determination of “no unreasonable risk” shall be issued by order and considered to be a final Agency action, while a determination of “unreasonable risk” is not considered to be a final Agency action. 15 U.S.C. 2605(i).
The statute identifies the minimum components for all chemical substance risk evaluations. For each risk evaluation, EPA must publish a document that outlines the scope of the risk evaluation to be conducted, which includes the hazards, exposures, conditions of use, and the potentially exposed or susceptible subpopulations that EPA expects to consider. 15 U.S.C. 2605(b)(4)(D). The statute further provides that each risk evaluation must also: (1) Integrate and assess available information on hazards and exposures for the conditions of use of the chemical substance, including information that is relevant to specific risks of injury to health or the environment and information on relevant potentially exposed or susceptible subpopulations; (2) describe whether aggregate or sentinel exposures were considered and the basis for that consideration; (3) take into account, where relevant, the likely duration, intensity, frequency, and number of exposures under the conditions of use; and (4) describe the weight of the scientific evidence for the identified hazards and exposures. 15 U.S.C. 2605(b)(4)(F)(i) through (ii) and (iv) through (v). Each risk evaluation must not consider costs or other nonrisk factors. 15 U.S.C. 2605(b)(4)(F)(iii).
The statute requires that the risk evaluation process be completed within a specified timeframe and provide an opportunity for public comment on a draft risk evaluation prior to publishing a final risk evaluation. 15 U.S.C. 2605(b)(4).
Subsection 5.3.1 of the final risk evaluation for Asbestos Part 1 (Chrysotile Asbestos) constitutes the order required under TSCA section 6(i)(1), and the “no unreasonable risk” determinations in that subsection are considered to be a final Agency action effective on the date of issuance of the order. In conducting risk evaluations, “EPA will determine whether the chemical substance presents an unreasonable risk of injury to health or the environment under each condition of use[ ] within the scope of the risk evaluation, either in a single decision document or in multiple decision documents. ” 40 CFR 702.47. Under EPA's implementing regulations, “[a] determination by EPA that the chemical substance, under one or more of the conditions of use within the scope of the risk evaluation, does not present an unreasonable risk of injury to health or the environment will be issued by order and considered to be a final Agency action, effective on the date of issuance of the order.” 40 CFR 702.49(d). For purposes of TSCA section 19(a)(1)(A), the date of issuance of the TSCA section 6(i)(1) order for Asbestos Part 1 (Chrysotile Asbestos) shall be at 1:00 p.m. Eastern time (standard or daylight, as appropriate) on the date that is two weeks after the date when this notice is published in the
EPA is announcing the availability of the risk evaluation of the chemical substance identified in Unit II. In this risk evaluation EPA has made unreasonable risk determinations on some of the conditions of use within the scope of the risk evaluation for this chemical. For those conditions of use for which EPA has found an unreasonable risk of injury to health or the environment, EPA must initiate regulatory action to address those risks through risk management measures enumerated in 15 U.S.C. 2605(a).
EPA also is announcing the availability of the information required to be provided publicly with each risk evaluation, which is available online at
• The scope document and problem formulation (in Docket ID No. EPA-HQ-OPPT-2016-0736);
• Draft risk evaluation and final risk evaluation (in Docket ID No. EPA-HQ-OPPT-2019-0501);
• All notices, determinations, findings, consent agreements, and orders (in Docket ID No. EPA-HQ-OPPT-2019-0501);
• Any information required to be provided to the Agency under 15 U.S.C. 2603 (in Docket ID No. EPA-HQ-OPPT-2016-0736 and Docket ID No. EPA-HQ-OPPT-2019-0501);
• A nontechnical summary of the risk evaluation (in Docket ID No. EPA-HQ-OPPT-2019-0501);
• A list of the studies, with the results of the studies, considered in carrying out each risk evaluation in Docket ID No. EPA-HQ-OPPT-2019-0501);
• The final peer review report, including the response to peer review and public comments received during peer review (in Docket ID No. EPA-HQ-OPPT-2019-0501); and
• Response to public comments received on the draft scope and the draft risk evaluation (in Docket ID No. EPA-HQ-OPPT-2019-0501).
The risk evaluation process is the second step in EPA's existing chemical review process under TSCA, following prioritization and before risk management. As this chemical is one of the first ten chemical substances undergoing risk evaluation, the chemical substance was not required to go through prioritization (81 FR 91927, December 19, 2016) (FRL-9956-47). The purpose of conducting risk evaluations is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under the conditions of use, including an unreasonable risk to a relevant potentially exposed or susceptible subpopulation. As part of this process, EPA must evaluate both hazard and exposure, not consider costs or other nonrisk factors, use reasonably available information and approaches in a manner that is consistent with the requirements in TSCA for the use of the best available science, and ensure decisions are based on the weight of the scientific evidence.
The specific risk evaluation process that EPA has established by rule to implement the statutory process is set out in 40 CFR part 702 and summarized on EPA's website at
Prior to the publication of this final risk evaluation, a draft risk evaluation was subject to peer review and public comment. EPA reviewed the report from the peer review committee and public comments and has amended the risk evaluation in response to these comments as appropriate. The public comments, peer review report, and EPA's response to comments is in Docket ID No. EPA-HQ-OPPT-2019-0501. Prior to the publication of the draft risk evaluation, EPA made available the scope and problem formulation, and solicited public input on uses and exposure. EPA's documents and the public comments are in Docket ID No. EPA-HQ-OPPT-2016-0736. Additionally, information about the scope, problem formulation, and draft risk evaluation phases of the TSCA risk evaluation for this chemical is available at EPA's website at
For the purposes of the Risk Evaluation for Asbestos under TSCA Section 6(a), EPA is using the TSCA section 202 definition of asbestos; which is—“asbestiform varieties of six fiber types—chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite or actinolite.” Part 1 of the Risk Evaluation for Asbestos is focused on Chrysotile Asbestos, as this is the only fiber type currently being imported, processed, or distributed for use in the United States. It is used in diaphragms, sheet gaskets, other gaskets, oilfield brake blocks, aftermarket automotive brakes/linings, and other vehicle friction products. Part 1 of the Risk Evaluation for Asbestos presents risk determinations for Chrysotile Asbestos attributable to these conditions of use.
As a result of the court decision in Safer Chemicals Healthy Families v. EPA, 943 F.3d 397 (9th Cir. 2019), EPA will evaluate legacy uses and associated disposals for Asbestos in Part 2 of the Risk Evaluation which is under expedited development. Legacy uses and associated disposals of Asbestos are conditions of use for which manufacture, import, processing and distribution no longer occur but where use and disposal, respectively, are still known, intended, or reasonably foreseen to occur. Part 2 of the Risk Evaluation for Asbestos will consider all six fiber types of Asbestos described in the TSCA definition.
Part 2 of the Risk Evaluation for Asbestos will begin with a draft scope document that will be made available for public comment. EPA will engage external stakeholders, where appropriate, to obtain reasonably available information related to legacy uses and associated disposals, including in situ in older buildings or still present in older equipment that has not exceeded its useful life.
15 U.S.C. 2601
Thursday, January 14, 2021 at 1:00 p.m.
The meeting will be held via teleconference.
The meeting will be open to public observation for Item Number 1 only.
State Department Vetting of EXIM Transactions.
Joyce B. Stone (202-257-4086). Members of the public who wish to attend the meeting via audio only teleconference should register via
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than January 19, 2021.
1.
1.
1.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the Financial Statements for Holding Companies (FR Y-9 reports; OMB Control Number 7100-0128) and the Consolidated Report of Condition and Income for Edge and Agreement Corporations (FR 2886b; OMB Control Number 7100-0086). The new revisions to these reports are effective as of March 31, 2021. The Board is also finalizing the following revisions that were previously approved on an interim basis: Revisions to the definition of “savings deposits” in the FR Y-9C and FR 2886b instructions associated with the amendments to the Board's Regulation D (Reserve Requirements of Depository Institutions), collection of two new temporary data items on loan modifications consistent with section 4013(d)(2) of the Coronavirus Aid, Relief and Economic Security (CARES) Act, and collection of four new temporary data items related to the an interim final rule implementing the Paycheck Protection Program Liquidity Facility (PPPLF). These changes became effective June 30, 2020.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452-3829.
Office of Management and Budget (OMB) Desk Officer—Will Bestani—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the PRA to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. The OMB inventory, as well as copies of the PRA Submission, supporting statements, and approved collection of information instrument(s) are available at
(1)
FR Y-9C (non-advanced approaches holding companies) with less than $5 billion in total assets—124,
FR Y-9C (non advanced approaches holding companies) with $5 billion or more in total assets—218,
FR Y-9C (advanced approaches holding companies)—9,
FR Y-9LP—416,
FR Y-9SP—3,739,
FR Y-9ES—78,
FR Y-9CS—236.
FR Y-9C (non advanced approaches holding companies) with less than $5 billion in total assets—35.72;
FR Y-9C (non advanced approaches holding companies) with $5 billion or more in total assets—44.92;
FR Y-9C (advanced approaches holding companies)—50.14;
FR Y-9LP—5.27;
FR Y-9SP—5.40;
FR Y-9ES—0.50;
FR Y-9CS—0.50.
FR Y-9C—1;
FR Y-9LP—1;
FR Y-9SP—0.50;
FR Y-9ES—0.50;
FR Y-9CS—0.50.
FR Y-9C (non advanced approaches holding companies) with less than $5 billion in total assets—17,715;
FR Y-9C (non advanced approaches holding companies) with $5 billion or more in total assets—39,166;
FR Y-9C (advanced approaches holding companies)—1,805;
FR Y-9LP—8,769;
FR Y-9SP—40,381;
FR Y-9ES—39;
FR Y-9CS—472.
FR Y-9C—1,404;
FR Y-9LP—1,664;
FR Y-9SP—3,739;
FR Y-9ES—39;
FR Y-9CS—472.
With respect to the FR Y-9C report, Schedule HI's Memorandum item 7.g, “FDIC deposit insurance assessments,” Schedule HC-P's item 7.a, “Representation and warranty reserves for 1-4 family residential mortgage loans sold to U.S. government agencies and government sponsored agencies,” and Schedule HC-P's item 7.b, “Representation and warranty reserves for 1-4 family residential mortgage loans sold to other parties” are considered confidential commercial and financial information. Such treatment is appropriate under exemption 4 of the Freedom of Information Act (“FOIA”),
In addition, for both the FR Y-9C report and the FR Y-9SP report, Schedule HC's Memorandum item 2.b, the name and email address of the external auditing firm's engagement partner, is considered confidential commercial information and protected by exemption 4 of the FOIA,
Additionally, items on the FR Y-9C, Schedule HC-C regarding loans modified under section 4013 of the CARES Act (Memorandum item 16.a, “Number of Section 4013 loans outstanding”, and Memorandum item 16.b, “Outstanding balance of Section 4013 loans”) are considered confidential. While the Board generally makes institution-level FR Y-9C report data publicly available, the Board believes the disclosure of these items at the holding company level would not be in the public interest.
Aside from the data items described above, the remaining data items collected on the FR Y-9C report and the FR Y-9SP report are generally not accorded confidential treatment. The data items collected on FR Y-9LP, FR Y-9ES, and FR Y-9CS
To the extent the instructions to the FR Y-9C, FR Y-9LP, FR Y-9SP, and FR Y-9ES reports each respectively direct the financial institution to retain the workpapers and related materials used in preparation of each report, such material would only be obtained by the Board as part of the examination or supervision of the financial institution. Accordingly, such information is considered confidential pursuant to exemption 8 of the FOIA.
(2)
On October 8, 2020, the Board published a separate notice
In this same October notice, the Board proposed to finalize, on an interim basis, revisions to the definition of “savings deposits” in the FR Y-9C and FR 2886b instructions that are
Also as part of the October notice, the Board proposed to revise the General Instructions for FR Y-9C Schedule HC-E and FR 2886b Schedule RC-E to state that where the reporting institution has suspended the enforcement of the six-transfer limit rule on an account that otherwise meets the definition of a savings deposit, the institution must report such deposits as a “savings deposit” (and as a “nontransaction account”) or a “transaction account” based on an assessment of certain criteria.
The comment period for the July 2020 notice ended on September 8, 2020. The Board did not receive any comments on this proposal, and the revisions will be implemented as proposed, with the new data items being collected through December 31, 2021.
The comment period for the October 2020 notice expired on December 7, 2020. The Board received a comment from a banker's association on this proposal. Comments were also received on a comparable proposal involving the Consolidated Reports of Condition and Income (Call Report) (FFIEC 031, FFIEC 041and FFIEC 051; OMB Control Number 7100-0036).
The lone commenter on the October 2020 notice noted the potential impact on other reports beyond the FR Y-9C of the GAAP change related to provision for credit losses on off-balance sheet credit exposures. These other reports include the FR Y-7N (OMB Control Number 7100-0125), FR Y-11 (OMB Control Number 7100-0244), FR 2314 (OMB Control Number 7100-0073), FR 2886b (OMB Control Number 7100-0086), and FR 2644 (OMB Control Number 7100-0075).
The Board will consider conforming changes to the forms and instructions for the FR 2886b, FR Y-7N, FR Y-11, and FR 2314 in the future. Any such changes would be proposed by the Board through a separate
The Board did not receive comments on the proposal to finalize the temporarily-approved revisions to the FR Y-9C and FR 2886b instructions regarding the definition of “savings deposits” associated with the amendments to the Board's Regulation D. The changes were effective as of June 30, 2020.
The commenter on the October 2020 notice raised several concerns with the proposed changes related to the definition of “savings deposits” and the assessment criteria to remove certain optional reporting, and requested a clarification on the definition of “retail sweep arrangements.” The commenter recommended that the revisions be consistent across reports. Specifically, the commenter recommended that savings deposits be classified consistently as transaction or nontransaction accounts across reports. The commenter stated that the differences in the treatment of savings deposits would require firms to report savings deposits as nontransaction accounts on the Call Reports, FR Y-9C, and FR 2886b, while the same deposits would be classified as a transaction account on the Report of Transaction Accounts, Other Deposits and Vault Cash (FR 2900; OMB Control Number 7100-0087). The commenter recommended that the Board provide clear and consistent definitions of “savings deposits,” “transaction accounts,” and “nontransaction accounts.” In response to the commenter's recommendation, the Board will continue to maintain the requirement to report “savings deposits” as a component of nontransaction accounts on the FR Y-9C and FR 2886b in order to maintain consistency with the Call Report. The Board will also maintain the definition of “transaction accounts” and “nontransaction accounts” as currently stated in the FR Y-9C and FR 2886b instructions, which is consistent with the Call Report instructions. It is important to note the Call Report and FR Y-9C are principal sources of financial data used for supervision and regulation of the banking industry whereas the primary purpose of the FR 2900 report is to collect data for the construction of the monetary aggregates.
Secondly, regarding the proposed changes to the assessment criteria for “savings deposits,” the commenter recommended that a depositor's eligibility to hold a NOW account should not be included in the criteria assessment to determine the reporting treatment for savings deposits for which the numeric limits on transfers and withdrawals have been removed. The commenter noted that “if a firm does not offer NOW accounts, they would be required to report savings deposits as NOW accounts, ATS accounts, or telephone and preauthorized transfer accounts (and as transaction accounts) based on a depositor's eligibility to hold such account” and “for firms that do not offer NOW accounts, the data necessary to determine a depositor's eligibility for NOW accounts would not be readily available.” In addition, the commenter noted that this reporting treatment would be inconsistent with the Regulation D definition of savings deposits, as NOW account eligibility is not a component of the definition. The commenter believed that gathering the data necessary to distinguish these depositors from other savings account holders solely for regulatory reporting purposes would create business and systems challenges. The Board agrees with the commenter that the depositor's eligibility to hold a NOW account should not be included in the assessment criteria for classification as a “savings deposit,” as such reporting would not be consistent with the Regulation D definition of savings deposits. Therefore, the Board will remove the depositor's eligibility to
Additionally, the commenter recommended that the effective date of the proposed revisions to the FR Y-9C and the FR 2886b definition of “savings deposits” be delayed from December 31, 2020, until June 30, 2021, to better align with the proposed effective dates of the FR 2900
Lastly, the commenter requested clarification on how institutions should report the components of retail sweep arrangements on the FR Y-9C report. Specifically, the commenter asked whether institutions should continue to report the nontransaction components of, or savings deposits in, retail sweep arrangements as nontransaction accounts. If not, the commenter asked whether institutions should strictly follow the proposed assessment criteria for the treatment of accounts where the transfer limit has been removed. In response to the comment, the Board has modified the description of retail sweep arrangements in the FR Y-9C instructions to remove references to transaction and nontransaction components. Further, the instructions will indicate that institutions should not follow the proposed assessment criteria for the treatment of accounts for which the transfer limit has been removed. Instead, the instructions will note that institutions that offer valid retail sweep programs must report each component of the retail sweep arrangement based on the customer account agreement established by the depository institution. The instructions will also note that two key criteria must be met for a valid retail sweep program. These criteria are: (1) A depository institution must establish by agreement with its customer two distinct, legally separate accounts; and (2) the swept funds must actually be moved between the customer's accounts on the depository institution's official books and records as of the close of business on the day(s) on which the depository institution intends to report the funds as being in separate accounts. These modifications are consistent with modifications to the Call Report instructions made in response to a similar comment.
As discussed above, the Board proposed to add a new Memorandum item 8 to Schedule HI-B, Part II, to collect the estimated amount of expected recoveries of amounts previously written off included within the allowance for credit losses on loans and leases held for investment. The Board did not receive any comments on this aspect of the proposal, and will adopt this revision. However, the Board has decided to collect this new Memorandum item only from holding companies with $5 billion or more in total consolidated assets. The Board decided to limit this collection to such holding companies in order to minimize burden, consistent with a number of other FR Y-9C items that are not required from holding companies with less than $5 billion in total assets.
In the October 2020 notice, the Board proposed to make certain revisions to the FR Y-9C related to the last-of-layer method of hedge accounting standards. This proposal would have implemented in the FR Y-9C revisions related to a project added to the FASB agenda to expand last-of-layer hedging to multiple layers, thereby providing more flexibility to entities when applying hedge accounting to a closed portfolio of prepayable assets. The Board proposed for these revisions to become effective following the adoption and implementation of a final standard on this matter by FASB.
Because FASB has not yet adopted a final standard regarding last-of-layer hedging, the Board has not adopted the proposed FR Y-9C revisions associated with this topic at this time. The Board will consider whether to finalize the proposed revisions related to last-of-layer hedging when FASB adopts a final standard.
The agencies addressed several additional instructional matters in the final Call Report notice. The Board will make comparable clarifying changes to the FR Y-9 reports for consistency purposes as discussed in detail below.
In April 2019, the Financial Accounting Standards Board (FASB) issued ASU No. 2019-04, “Codification Improvements to Topic 326, Financial Instruments—Credit Losses, Topic 815, Derivatives and Hedging, and Topic 825, Financial Instruments,” which amended ASC Topic 326 to allow an institution to make certain accounting policy elections for accrued interest receivable balances, including a separate policy election, at the class of financing receivable or major security-type level, to charge off any uncollectible accrued interest receivable by reversing interest income, recognizing credit loss expense (
• Holding companies may elect to separately present accrued interest receivable from the associated financial asset, and the accrued interest receivable is presented net of an allowance for credit losses (ACL), if any; and
• Holding companies that charge off uncollectible accrued interest receivable in a timely manner,
Although this Glossary entry does not currently provide for the ASU's separate accounting policy election for the charge-off of uncollectible accrued interest receivable at the class of financing receivable or major security-type level, this election is specifically addressed in the Interagency Policy Statement on Allowances for Credit
The Board plans to update the FR Y-9C Glossary entry for “Accrued Interest Receivable” to align the instructions in this entry with the elections permitted under U.S. GAAP for institutions that have adopted ASC 326, which also would achieve consistency with the discussion of accrued interest receivable in the Interagency Policy Statement on Allowances for Credit Losses.
Holding companies with $5 billion or more in total assets report income from certain securities-related and insurance activities in FR Y-9C report Schedule HI, Income Statement, items 5.d.(1) through (7), while holding companies with less than $5 billion in total assets report only items 5.d.(6) and 5.d.(7). When an institution partners with, or otherwise joins with, a third party to conduct these securities-related or insurance activities, and any fees and commissions generated by these activities are shared with the third party, the Schedule HI instructions do not currently address the reporting treatment for these sharing arrangements. Consequently, holding companies may have reported the gross fees and commissions from these activities in the appropriate subitem of Schedule HI, item 5, “Other noninterest income,” and the third party's share of the fees and commissions separately as expenses in Schedule HI, item 7.d, “Other noninterest expense.” Alternatively, holding companies may have reported only their net share of the fees or commissions in the appropriate subitem of Schedule HI, item 5.
The Board believes that reporting shared fees and commissions on a net basis is preferable to gross reporting and is analogous to how income from certain other income-generating activities is reported on the FR Y-9C income statement, including securitization income and servicing fee income, which are currently reported net of specified expenses and costs.
This net approach better represents an institution's income from a securities-related or insurance activity engaged in jointly with a third party than when the third party's share of the fees and commissions is separately reported as a noninterest expense in another income statement data item. As a result, the Board has clarified the existing Schedule HI instructions to ensure consistent reporting on a net basis of fees and commissions from securities-related and insurance activities that are shared with third parties. Furthermore, to avoid including repetitive language in the instructions for the multiple noninterest income items for income from securities-related and insurance activities in Schedule HI, a new non-reportable item 5.d captioned “Income from securities-related and insurance activities” has been added before the existing 5.d subitems on the FR Y-9C report. The reporting treatment for arrangements involving the sharing of fees and commissions with third parties arising from an institution's securities brokerage, investment banking, investment advisory, securities underwriting, insurance and annuity sales, insurance underwriting, or any other securities-related and insurance activities is explained once in the new item 5.d instructions.
In January 2016, the FASB issued ASU 2016-01, “Recognition and Measurement of Financial Assets and Financial Liabilities.” As one of its main provisions, the ASU requires investments in equity securities, except those accounted for under the equity method and those that result in consolidation, to be measured at fair value, with changes in fair value recognized in net income. Thus, the ASU eliminates the existing concept of available-for-sale (AFS) equity securities, which are measured at fair value with changes in fair value generally recognized in other comprehensive income. As of December 31, 2020, all holding companies will have been required to adopt ASU 2016-01 and, as a consequence, must report equity securities with readily determinable fair values not held for trading in Schedule HC, Balance Sheet, item 2.c, “Equity securities with readily determinable fair values not held for trading,” instead of Schedule HC-B, Securities, item 7, “Investments in mutual funds and other equity securities with readily determinable fair values.” Accordingly, Schedule HC-B, item 7, will be removed effective December 31, 2020.
Holding companies report held-to-maturity and AFS securities in Schedule HC-B, items 1 through 7, and have long reported in Schedule HC-B, Memorandum item 1, “Pledged securities” the amount of such securities that are pledged to secure deposits and for other purposes. Considering that all institutions that previously reported their AFS equity securities in Schedule HC-B, item 7, now report these securities in Schedule HC, item 2.c, the Board is updating the instructions for Schedule HC-B, Memorandum item 1, and Schedule HC, item 2.c, to indicate that holding companies should include in Memorandum item 1 the fair value of pledged equity securities with readily determinable fair values not held for trading that are now reported in Schedule HC, item 2.c. The wording of existing footnote 1 to Memorandum item 1 of Schedule HC-B on the FR Y-9C forms will be similarly updated. These instructional clarifications would ensure that pledged equity securities formerly reportable as AFS equity securities would continue to be reported in Memorandum item 1 notwithstanding the change in accounting for equity securities under U.S. GAAP. Information on pledged securities is an important element of the agencies' analysis of an institution's liquidity risk. The existing footnote 1 to Memorandum item 1, Schedule HC-B on the FR Y-9C forms and the instructions for PC-B Memoranda line item 10, “Pledged securities”, of the FR Y-9LP and related footnote 1 reference of this line item on the FR Y-9LP forms will be similarly updated.
The FR Y-9C instructional clarifications to the Glossary entry for “Accrued Interest Receivable” and Schedule HC-B for pledged equity securities will take effect December 31, 2020, while the instructional clarifications to Schedule HI for shared fees and commissions from securities-related and insurance activities will take effect March 31, 2021.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than February 3, 2021.
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage de novo, or to acquire or control voting securities or assets of a company, including the companies listed below, that engages either directly or through a subsidiary or other company, in a nonbanking activity that is listed in § 225.28 of Regulation Y (12 CFR 225.28) or that the Board has determined by Order to be closely related to banking and permissible for bank holding companies. Unless otherwise noted, these activities will be conducted throughout the United States.
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than February 3, 2021.
1.
Government Accountability Office (GAO).
Request for letters of nomination and resumes.
The Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) established MACPAC to review Medicaid and CHIP access and payment policies and to advise Congress on issues affecting Medicaid and CHIP. CHIPRA gave the Comptroller General of the United States responsibility for appointing MACPAC's members. GAO is now accepting nominations for MACPAC appointments that will be effective May 2021. Nominations should be sent to the email address listed below. Acknowledgement of submissions will be provided within a week of submission.
Letters of nomination and resumes should be submitted no later than January 26, 2021, to ensure adequate opportunity for review and consideration of nominees prior to appointment.
Submit letters of nomination and resumes to
Susan Anthony at (312) 220-7666 or
Public Law 111-3, sec. 506; 42 U.S.C. 1396.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by February 3, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
2. Call the Reports Clearance Office at (410) 786-1326.
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Collection of this information is mandated in Part D of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) in Subpart 3. The application requirements are codified in Subpart K of 42 CFR 423 entitled “Application Procedures and Contracts with PDP Sponsors.”
The information will be collected under the solicitation of proposals from PDP, MA-PD, Cost Plan, Program of All Inclusive Care for the Elderly (PACE), and EGWP applicants. The collected information will be used by CMS to: (1) Ensure that applicants meet CMS requirements for offering Part D plans (including network adequacy, contracting requirements, and compliance program requirements, as described in the application), (2) support the determination of contract awards.
2.
CMS requires that MA and PDP organizations submit a completed PBP and formulary as part of the annual bidding process. During this process, organizations prepare their proposed plan benefit packages for the upcoming contract year and submit them to CMS for review and approval. CMS uses this data to review and approve the benefit packages that the plans will offer to Medicare beneficiaries. This allows CMS to review the benefit packages in a consistent way across all submitted bids during with incredibly tight timeframes. This data is also used to populate data on Medicare Plan Finder, which allows beneficiaries to access and compare Medicare Advantage and Prescription Drug plans.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) permanently debarring Sunrise Lee from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Ms. Lee was convicted of a felony under Federal law for conduct that relates to the regulation of a drug product under the FD&C Act. Ms. Lee was given notice of the proposed permanent debarment and an opportunity to request a hearing to show why she should not be debarred. As of October 8, 2020 (30 days after receipt of the notice), Ms. Lee had not responded. Ms. Lee's failure to respond and request a hearing constitutes a waiver of her right to a hearing concerning this action.
This order is applicable January 4, 2021.
Submit applications for termination of debarment to the Dockets Management Staff, Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, 240-402-7500, or at
Jaime Espinosa, (ELEM-4029) Division of Enforcement, Office of Strategic Planning and Operational Policy, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 240-402-8743, or at
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual from providing services in any capacity to a person that has an approved or pending drug product application if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act. On January 22, 2020, Ms. Lee was convicted as defined in section 306(
The factual basis for this conviction is as follows: Ms. Lee held executive management positions, to include Regional Sales Manager for the Mid-Atlantic Region, Regional Director for the Central Region, and Regional Director for the West Region, of Insys Therapeutics Inc. (Insys), a Delaware Corporation, with headquarters in Chandler, Arizona. Insys developed and owned a drug called SUBSYS, a liquid formulation of fentanyl to be applied under the tongue. FDA approved SUBSYS for the management of breakthrough pain in adult cancer patients who are already receiving and are already tolerant to opioid therapy for their underlying persistent cancer pain. From 2012 and continuing through 2015, Ms. Lee participated in a conspiracy whereby employees of Insys bribed medical practitioners in various states to get those practitioners to increase prescribing SUBSYS to their patients, many of whom did not have cancer. Ms. Lee, along with her co-conspirators, measured the effect of these bribes on each practitioner's prescribing habits and on the revenue that each bribed practitioner generated for Insys. Ms. Lee, along with her co-conspirators, reduced or eliminated bribes paid to those practitioners who failed to meet the minimum prescription requirements or failed to generate enough revenue to justify additional bribes. To further this conspiracy, Ms. Lee's co-conspirators mislead and defrauded health insurance providers to ensure those providers approved payment for SUBSYS. Insys achieved this goal by establishing the “Insys Reimbursement Center,” which was designed to shift the burden of seeking prior authorization for SUBSYS from practitioners to Insys. This allowed Insys to determine what medical information was presented to insurers. Ms. Lee's co-conspirators directed Insys employees to mislead insurers to obtain payment authorization.
As a result of this conviction, FDA sent Ms. Lee by certified mail on August 3, 2020, a notice proposing to permanently debar her from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Ms. Lee was convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. The proposal also offered Ms. Lee an opportunity to request a hearing, providing her 30 days from the date of receipt of the letter in which to file the request, and advised her that failure to request a hearing constituted an election not to use the opportunity for a hearing and a waiver of any contentions concerning this action. Ms. Lee received the proposal on September 8, 2020. She did not request a hearing within the timeframe prescribed by regulation and has, therefore, waived her opportunity for a hearing and any contentions concerning her debarment (21 CFR part 12).
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Ms. Sunrise Lee has been convicted of a felony under Federal law for conduct otherwise relating to the regulation of a drug product under the FD&C Act.
As a result of the foregoing finding, Ms. Lee is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application, effective (see
Any application by Ms. Lee for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2020-N-1415 and sent to the Dockets Management Staff (see
Publicly available submissions will be placed in the docket and will be viewable at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is issuing an order permanently debarring Jerrod Nichols Smith from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Mr. Smith was convicted of multiple felony counts under Federal law for conduct that relates to the regulation of a drug product under the Federal, Food, Drug, and Cosmetic Act (the FD&C Act). Mr. Smith was given notice of the proposed permanent debarment and was given an opportunity to request a hearing to show why he should not be debarred. As of September 27, 2020 (30 days after receipt of the notice), Mr. Smith had not responded. Mr. Smith's failure to respond and request a hearing constitutes a waiver of his right to a hearing concerning this action.
This order is effective January 4, 2021.
Submit applications for termination of debarment to the Dockets Management Staff, Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, 240-402-7500, or at
Jaime Espinosa, Division of Enforcement (ELEM-4029), Office of Strategic Planning and Operational Policy, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 240-402-8743, or at
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual from providing services in any capacity to a person that has an approved or pending drug product application if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act. On July 16, 2018, Mr. Smith was convicted as defined in section 306(
The factual basis for these convictions is as follows: Mr. Smith was one of the owners and operators of Cumberland Distribution, Inc. (“Cumberland”), formerly known as Midwest Pharmacy, which was a wholesale drug distribution company incorporated in Nevada and Tennessee. Mr. Smith was engaged in the business of wholesale distribution of prescription drugs, as defined by 21 U.S.C. 353(e)(3)(B), to pharmacy customers throughout the United States. From December 2006 through August 2009, Mr. Smith, along with others, purchased millions of dollars of prescription drugs, through Cumberland. The vast majority of the prescription drugs purchased by Cumberland and received at the company's warehouse facilities were sold to Cumberland, directly and indirectly, by individuals and entities whom Mr. Smith knew were not licensed by any State to engage in the wholesale distribution of prescription drugs and were not otherwise authorized to distribute prescription drugs pursuant to 21 U.S.C. 353. These unauthorized sellers obtained their prescription drugs from various networks of street level drug diverters. Mr. Smith directed employees to take steps to conceal the true origins of the diverted prescription drugs shipped to the company's warehouse facilities before shipping them to pharmacy customers around the country. Such steps included, but were not limited to, falsification of documents concerning the chain of custody or pedigree of a drug. These falsified pedigree documents, which Mr. Smith provided to his pharmacy customers or maintained at Cumberland, inaccurately represented that the diverted products had been obtained from licensed wholesale distributors. Mr. Smith also used shell companies to receive and relabel diverted prescription drugs before sending them to Cumberland's warehouse facilities to create the false appearance that his company was purchasing prescription drugs from licensed wholesale distributors.
The diverted drugs included, but were not limited to, drugs used to treat human immunodeficiency virus/acquired immunodeficiency syndrome, antipsychotic medications, antidepressants, blood pressure medications, and diabetes medications. Numerous pharmacies reported problems with drugs they purchased from Cumberland, including prescription drug bottles containing the wrong medicine, the wrong dosage information, and foreign objects inside. At trial, several witnesses testified that at least one bottle of prescription drugs sold by Cumberland contained Tic Tacs instead of medicine. Through the course of this scheme, Mr. Smith's company had gross proceeds of approximately $58,984,912. His profits were approximately $14,689,782.
As a result of these convictions, FDA sent Mr. Smith by certified mail on July 16, 2020, a notice proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Mr. Smith was convicted of felonies under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. The proposal also offered Mr. Smith an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted an election not to use the opportunity for a hearing and a waiver of any contentions concerning this action. Mr.
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Mr. Smith has been convicted of multiple felonies under Federal law for conduct otherwise relating to the regulation of a drug product under the FD&C Act.
As a result of the foregoing finding, Mr. Smith is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application, effective (see
Any application by Mr. Smith for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2019-N-3794 and sent to the Dockets Management Staff (see
Publicly available submissions will be placed in the docket and will be viewable at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) permanently debarring Alec Burlakoff from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Alec Burlakoff was convicted of a felony under Federal law for conduct that relates to the regulation of a drug product under the FD&C Act. Mr. Burlakoff was given notice of the proposed permanent debarment and was given an opportunity to request a hearing to show why he should not be debarred. As of July 24, 2020 (30 days after receipt of the notice), Mr. Burlakoff had not responded. Mr. Burlakoff's failure to respond and request a hearing constitutes a waiver of his right to a hearing concerning this action.
This order is applicable January 4, 2021.
Submit applications for special termination of debarment to the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, 240-402-7500.
Jaime Espinosa, Division of Enforcement, Office of Strategic Planning and Operational Policy, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857,
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual from providing services in any capacity to a person that has an approved or pending drug product application if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act. On January 23, 2020, Mr. Burlakoff was convicted as defined in section 306(
The factual basis for this conviction is as follows: Mr. Burlakoff held executive management positions at Insys Therapeutics Inc. (Insys), including Regional Sales Manager for the Southeast Region and Vice President of Sales. Insys is a Delaware Corporation, with headquarters in Chandler, Arizona. Insys developed and owned a drug called SUBSYS, a liquid formulation of fentanyl to be applied under the tongue. FDA approved SUBSYS for the management of breakthrough pain in adult cancer patients who are already receiving and are already tolerant to opioid therapy for their underlying persistent cancer pain. From May 2012 and continuing until December 2015, he participated in a conspiracy whereby employees of Insys bribed and provided kickbacks to medical practitioners in various states to get those practitioners to increase prescribing SUBSYS to their patients, many of whom did not have cancer. The bribes and kickbacks took various forms to include honoraria for the practitioners' participation in educational events, payment of the practitioner's staff salaries, and the completion of office tasks for the provider performed by Insys employees.
Mr. Burlakoff and his co-conspirators used pharmacy data acquired from third parties to identify practitioners who either prescribed unusually high volumes of rapid-onset opioids, or had demonstrated a capacity to prescribe unusually large volumes of rapid-onset opioids. In exchange for bribes and kickbacks to these targeted practitioners, the practitioners increased the number of new SUBSYS prescriptions they wrote and increased the dosage and number of units of SUBSYS for new and existing prescriptions. Many of the targeted practitioner's patients for
As a result of this conviction, FDA sent Mr. Burlakoff by certified mail on July 16, 2020, a notice proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Mr. Burlakoff was convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. The proposal also offered Mr. Burlakoff an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted an election not to use the opportunity for a hearing and a waiver of any contentions concerning this action. Mr. Burlakoff received the proposal on July 25, 2020. He did not request a hearing within the timeframe prescribed by regulation and has, therefore, waived his opportunity for a hearing and any contentions concerning his debarment (21 CFR part 12).
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Alec Burlakoff has been convicted of a felony under Federal law for conduct otherwise relating to the regulation of a drug product under the FD&C Act.
As a result of the foregoing finding, Mr. Burlakoff, is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application, effective (see
Any application by Mr. Burlakoff for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2020-N-1372 and sent to the Dockets Management Staff (see
Publicly available submissions will be placed in the docket and will be viewable at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) permanently debarring Joseph A. Rowan from providing services in any capacity to a person that has an approved or pending drug product application. FDA bases this order on a finding that Joseph A. Rowan was convicted of a felony under Federal law for conduct that relates to the regulation of a drug product under the FD&C Act. Mr. Rowan was given notice of the proposed permanent debarment and an opportunity to request a hearing to show why he should not be debarred. As of August 6, 2020 (30 days after receipt of the notice), Mr. Rowan had not responded. Mr. Rowan's failure to respond and request a hearing constitutes a waiver of his right to a hearing concerning this action.
This order is applicable January 4, 2021.
Submit applications for termination of debarment to the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, 240-402-7500, or at
Jaime Espinosa (ELEM-4029), Division of Enforcement, Office of Strategic Planning and Operational Policy, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 240-402-8743, or at
Section 306(a)(2)(B) of the FD&C Act (21 U.S.C. 335a(a)(2)(B)) requires debarment of an individual from providing services in any capacity to a person that has an approved or pending drug product application if FDA finds that the individual has been convicted of a felony under Federal law for conduct relating to the regulation of any drug product under the FD&C Act. On January 21, 2020, Mr. Rowan was convicted as defined in section 306(
The factual basis for this conviction is as follows: Mr. Rowan held executive management positions, including Regional Sales Manager and Regional Director of the East Region of Insys Therapeutics Inc. (Insys), a Delaware corporation, with headquarters in Chandler, Arizona. Insys developed and owned a drug called SUBSYS, a liquid formulation of fentanyl to be applied under the tongue. FDA approved SUBSYS for the management of breakthrough pain in adult cancer patients who are already receiving and are already tolerant to opioid therapy for
To further this conspiracy, Mr. Rowan was involved in a scheme with his co-conspirators whereby Insys executives conspired to mislead and defraud health insurance providers to ensure those providers approved payment for SUBSYS. Insys achieved this goal by establishing the “Insys Reimbursement Center,” which was designed to shift the burden of seeking prior authorization for SUBSYS from practitioners to Insys. This allowed Insys to determine what medical information was presented to insurers. Mr. Rowan and his co-conspirators directed Insys employees to mislead insurers to obtain payment authorization.
As a result of this conviction, FDA sent Mr. Rowan by certified mail on August 3, 2020, a notice proposing to permanently debar him from providing services in any capacity to a person that has an approved or pending drug product application. The proposal was based on a finding, under section 306(a)(2)(B) of the FD&C Act, that Mr. Rowan was convicted of a felony under Federal law for conduct relating to the regulation of a drug product under the FD&C Act. The proposal also offered Mr. Rowan an opportunity to request a hearing, providing him 30 days from the date of receipt of the letter in which to file the request, and advised him that failure to request a hearing constituted an election not to use the opportunity for a hearing and a waiver of any contentions concerning this action. Mr. Rowan received the proposal on August 7, 2020. He did not request a hearing within the timeframe prescribed by regulation and has, therefore, waived his opportunity for a hearing and any contentions concerning his debarment (21 CFR part 12).
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(a)(2)(B) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Mr. Rowan has been convicted of a felony under Federal law for conduct otherwise relating to the regulation of a drug product under the FD&C Act.
As a result of the foregoing finding, Mr. Rowan is permanently debarred from providing services in any capacity to a person with an approved or pending drug product application, effective (see
Any application by Mr. Rowan for special termination of debarment under section 306(d)(4) of the FD&C Act should be identified with Docket No. FDA-2020-N-1412 and sent to the Dockets Management Staff (see
Publicly available submissions will be placed in the docket and will be viewable at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by March 5, 2021.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before March 5, 2021. The
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
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
We are seeking OMB approval of the NAFDS under section 108 of FSMA. This is a voluntary survey of SLTT governments intended to gauge government activities in food and agriculture defense from intentional contamination and emerging threats. The collected information will be included in the mandatory NAFDS followup Report to Congress. The authority for us to collect the information derives from the Commissioner of Food and Drugs' authority provided in section 1003(d)(2)(c) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 393(d)(2)(c)).
Protecting the nation's food and agriculture supply against intentional contamination and other emerging threats is an important responsibility shared by SLTT governments as well as private sector partners. On January 4, 2011, the President signed into law FSMA. FSMA focuses on ensuring the safety of the U.S. food supply by shifting the efforts of Federal regulators from response to prevention and recognizes the importance of strengthening existing collaboration among all stakeholders to achieve common public health and security goals. FSMA identifies some key priorities for working with partners in areas such as reliance on Federal, State, and local agencies for inspections; improving foodborne illness surveillance; and leveraging and enhancing State and local food safety and defense capacities. Section 108 of FSMA (NAFDS) requires HHS and USDA, in coordination with DHS, to work together with State, local,
In 2015, the initial NAFDS Report to Congress detailed the specific Federal response to food and agriculture defense goals, objectives, key initiatives, and activities that HHS, USDA, DHS, and other stakeholders planned to accomplish to meet the objectives outlined in FSMA. The NAFDS charts a direction for how Federal Agencies, in cooperation with SLTT governments and private sector partners, protect the nation's food supply against intentional contamination. Not later than 4 years after the initial NAFDS Report to Congress (2015), and every 4 years thereafter (
FDA is the Agency primarily responsible for obtaining the information from Federal and SLTT partners to complete the NAFDS Report to Congress. An interagency working group will conduct the survey and collect and update the NAFDS as directed by FSMA, including developing metrics and measuring progress for the evaluation process.
The survey of Federal and State partners will be used to determine what food defense activities, if any, Federal and/or SLTT agencies have completed (or are planning on completing) from 2021 to 2025. Planning for the local, territorial, and tribal information collections will commence during this period of renewal. The survey will continue to be repeated approximately every 2 to 4 years, as described in section 108 of FSMA. The NAFDS survey is being administered for the purpose of monitoring progress in food and agricultural defense by government agencies.
A purposive sampling strategy is employed, such that the government agencies participating in food and agricultural defense are asked to respond to the voluntary survey. Food defense leaders responsible for conducting food defense activities during a food emergency for their jurisdiction are identified and will receive an emailed invitation to complete the survey online; they will be provided with a web link to the survey. The survey will be conducted electronically on the
We estimate the burden of this collection of information as follows:
The FDA Office of Partnerships reviewed the questionnaire and provided the estimate of time to complete the survey. The total burden is based on our previous experiences conducting surveys. The burden has been revised to reflect the total number of states and possible number of local, tribal, and territorial entities that may partake of the survey. Based on a review of the information collection since our last request for OMB approval, we have increased our burden estimate by 149 hours (from 16.17 to 165 hours) and 451 respondents (from 49 to 500 respondents).
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of FDA guidance documents related to the Coronavirus Disease 2019 (COVID-19) public health emergency (PHE). This notice of availability (NOA) is pursuant to the process that FDA announced, in the
The announcement of the guidances 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 these guidances to the address noted in table 1. Send two self-addressed adhesive labels to assist that office in processing your requests. See the
Stephen Ripley, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911, or Erica Takai, Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5456, Silver Spring, MD 20993-0002, 301-796-6353.
On January 31, 2020, as a result of confirmed cases of COVID-19, and after consultation with public health officials as necessary, Alex M. Azar II, Secretary of Health and Human Services (HHS), pursuant to the authority under section 319 of the Public Health Service Act (42 U.S.C. 247d) (PHS Act), determined that a PHE exists and has existed since January 27, 2020, nationwide.
In the
The March 25, 2020, notice further stated that, in general, rather than publishing a separate NOA for each COVID-19-related guidance, FDA intends to publish periodically a consolidated NOA announcing the availability of certain COVID-19-related guidances that FDA issued during the relevant period, as included in table 1. This notice announces COVID-19-related guidances that are posted on FDA's website.
Pursuant to the process described in the March 25, 2020, notice, FDA is announcing the availability of the following COVID-19-related guidances:
Although these guidances have been implemented immediately without prior comment, FDA will consider all comments received and revise the guidances as appropriate (see § 10.115(g)(3)).
These guidances are being issued consistent with FDA's good guidance practices regulation (§ 10.115). The guidances represent the current thinking of FDA. They do not establish any rights for any person and are not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information (listed in table 2). Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in the following FDA regulations and guidances have been approved by OMB as listed in the following table:
While these guidances contain no collection of information, they do refer to previously approved FDA collections of information (listed in table 3). Therefore, clearance by OMB under the PRA (44 U.S.C. 3501-3521) is not required for these guidances. These previously approved collections of information are subject to review by OMB under the PRA. The collections of information in the following FDA statutory provision, regulations and guidances have been approved by OMB as listed in the following table. These guidances also contain a collection of information that has been granted a PHE waiver from the PRA by HHS on March 19, 2020, under section 319(f) of the PHS Act. Information concerning the PHE PRA waiver can be found on the HHS website at
Persons with access to the internet may obtain COVID-19-related guidances at:
• FDA web page entitled “COVID-19-Related Guidance Documents for Industry, FDA Staff, and Other Stakeholders,” available at
• FDA web page entitled “Search for FDA Guidance Documents” available at
•
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by March 5, 2021.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before March 5, 2021. The
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
JonnaLynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Under the Medical Device Amendments of 1976 (Pub. L. 94-295), class II devices were defined as those devices for which there was insufficient information to show that general controls themselves would provide a reasonable assurance of safety and effectiveness but for which there was sufficient information to establish performance standards to provide such assurance. Accordingly, FDA has established the above captioned Special Controls Guidance Document regarding the labeling of natural rubber latex condoms.
Condoms without spermicidal lubricant containing nonoxynol 9 are classified in class II. They were originally classified before the enactment of provisions of the Safe Medical Devices Act of 1990 (Pub. L. 101-629), which broadened the definition of class II devices and now permits FDA to establish special controls beyond performance standards, including guidance documents, to help provide reasonable assurance of the safety and effectiveness of such devices.
In December 2000, Congress enacted Public Law 106-554, which directed FDA to “reexamine existing condom labels” and “determine whether the labels are medically accurate regarding the overall effectiveness or lack of effectiveness in preventing sexually transmitted diseases . . . .” In response, FDA recommended labeling intended to provide important information for condom users, including the extent of protection provided by condoms against various types of sexually transmitted diseases.
Respondents to this collection of information are manufacturers and repackagers of male condoms made of natural rubber latex without spermicidal lubricant. FDA expects approximately five new manufacturers or repackagers to enter the market yearly and to collectively have a third-party disclosure burden of 60 hours. The average burden per disclosure was derived from a study performed for FDA by Eastern Research Group, Inc., an economic consulting firm, to estimate the impact of the 1999 over-the-counter (OTC) human drug labeling requirements final rule (64 FR 13254, March 17, 1999). Because the packaging requirements for condoms are similar to those of many OTC drugs, we believe the burden to design the labeling for OTC drugs is an appropriate proxy for the estimated burden to design condom labeling.
The special controls guidance document also refers to previously approved collections of information found in FDA regulations. The collections of information in 21 CFR part 801 have been approved under OMB control number 0910-0485; the collections of information in 21 CFR part 807, subpart E have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR part 820 have been approved under OMB control number 0910-0073.
The collection of information under 21 CFR 801.437 does not constitute a “collection of information” under the PRA. Rather, it is a “public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public” (5 CFR 1320.3(c)(2)).
FDA estimates the burden of this collection of information as follows:
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate.
National Institutes of Health, HHS.
Notice.
This notice announces the next meeting of the National Toxicology Program (NTP) Board of Scientific Counselors (BSC). The BSC, a federally chartered, external advisory group composed of scientists from the public and private sectors, will review and provide advice on programmatic activities. This meeting is a virtual meeting and is open to the public. Written comments will be accepted and registration is required to present oral comments. Information about the meeting and registration is available at
Dr. Sheena Scruggs, Designated Federal Official for the BSC, Office of Liaison, Policy and Review, Division of NTP, NIEHS, P.O. Box 12233, K2-03, Research Triangle Park, NC 27709. Phone: 984-287-3355, Fax: 301-451-5759, Email:
The BSC will provide input to the NTP on programmatic activities and issues. The preliminary agenda topics include presentations from two of the Division of the National Toxicology Program (DNTP)'s research program areas. The preliminary agenda, roster of BSC members, background materials, public comments, and any additional information, when available, will be posted on the BSC meeting web page (
The deadline for submission of written comments is January 26, 2021. Written public comments should be submitted through the meeting web page. Persons submitting written comments should include name, affiliation, mailing address, phone, email, and sponsoring organization (if any). Written comments received in response to this notice will be posted on the NTP web page, and the submitter will be identified by name, affiliation, and sponsoring organization (if any).
If possible, oral public commenters should send a copy of their slides and/or statement or talking points to
The BSC is governed by the provisions of the Federal Advisory Committee Act, as amended (5 U.S.C. app.), which sets forth standards for the formation and use of advisory committees.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine or Oral Fluid (Mandatory Guidelines).
Anastasia Donovan, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N06B, Rockville, Maryland 20857; 240-276-2600 (voice);
A notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) using Urine and of the laboratories currently certified to meet the standards of the Mandatory Guidelines using Oral Fluid.
The Mandatory Guidelines using Urine were first published in the
The Mandatory Guidelines using Oral Fluid were first published in the
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71 and allowed urine drug testing only. The Mandatory Guidelines using Urine have since been revised, and new Mandatory Guidelines allowing for oral fluid drug testing have been published. The Mandatory Guidelines require strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on specimens for federal agencies. HHS does not allow IITFs to conduct oral fluid testing.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines using Urine and/or Oral Fluid. An HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that the test facility has met minimum standards. HHS does not allow IITFs to conduct oral fluid testing.
In accordance with the Mandatory Guidelines using Oral Fluid dated October 25, 2019 (84 FR 57554), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on oral fluid specimens:
At this time, there are no laboratories certified to conduct drug and specimen validity tests on oral fluid specimens.
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Federal Emergency Management Agency, DHS.
60-Day notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on a revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning information necessary to support the President's priorities and allocations authority under the DPA implemented by the Emergency Management Priorities and Allocations System (EMPAS) regulation, which was added by FEMA's May 13, 2020,
Comments must be submitted on or before March 5, 2021.
Submit comments at
All submissions received must include the agency name and Docket ID, and will be posted, without change, to the Federal eRulemaking Portal at
Marc Geier, Office of Policy and Program Analysis, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, 202.924.0196 or
This information is necessary to support the President's priorities and allocations authority under the DPA implemented by the Emergency Management Priorities and Allocations System (EMPAS) regulation (44 CFR part 333), which was added by FEMA's May 13, 2020,
Finally, under section 333.70 each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to 44 CFR part 333 or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided. Under section 333.71, any person who has had a request for adjustment or exception denied by FEMA under section 333.70 may appeal to the Administrator. Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from a full and precise statement of the reasons the decision should be modified or reversed.
Comments may be submitted as indicated in the
Office of the Secretary, Department of Homeland Security.
Notice of determination.
The Acting Secretary of Homeland Security has determined, pursuant to law, that it is necessary to waive certain laws, regulations, and other legal requirements in order to ensure the expeditious construction of barriers and roads in the vicinity of the international land border in Imperial County, California.
This determination takes effect on January 4, 2021.
Important mission requirements of the Department of Homeland Security (“DHS”) include border security and the detection and prevention of illegal entry into the United States. Border security is critical to the nation's national security. Recognizing the critical importance of border security, Congress has mandated DHS to achieve and maintain
Congress has provided to the Secretary of Homeland Security a number of authorities necessary to carry out DHS's border security mission. One of those authorities is found at section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended (“IIRIRA”). Public Law 104-208, Div. C, 110 Stat. 3009-546, 3009-554 (Sept. 30, 1996) (8 U.S.C 1103 note), as amended by the REAL ID Act of 2005, Public Law 109-13, Div. B, 119 Stat. 231, 302, 306 (May 11, 2005) (8 U.S.C. 1103 note), as amended by the Secure Fence Act of 2006, Public Law 109-367, sec. 3, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1103 note), as amended by the Department of Homeland Security Appropriations Act, 2008, Public Law 110-161, Div. E, Title V, sec. 564, 121 Stat. 2090 (Dec. 26, 2007). In section 102(a) of IIRIRA, Congress provided that the Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States. In section 102(b) of IIRIRA, Congress mandated the installation of additional fencing, barriers, roads, lighting, cameras, and sensors on the southwest border. Finally, in section 102(c) of IIRIRA, Congress granted to the Secretary of Homeland Security the authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of IIRIRA.
The United States Border Patrol's El Centro Sector is an area of high illegal entry. In fiscal year 2020, the United States Border Patrol (“Border Patrol”) apprehended over 11,000 illegal aliens attempting to enter the United States between border crossings in the El Centro Sector. In that same time period, between border crossings in the El Centro Sector the Border Patrol seized over 200 pounds of marijuana, over 50 pounds of cocaine, over 30 pounds of heroin, over 3,100 pounds of methamphetamine, and over 60 pounds of fentanyl.
Due to the high levels of illegal entry within the El Centro Sector, I must use my authority under section 102 of IIRIRA to install additional physical barriers and roads in the El Centro Sector. Therefore, DHS will take immediate action to construct primary and secondary barriers in the El Centro Sector. The areas in the vicinity of the border within which such construction will occur are referred to herein as the “project areas” and are more specifically described in Section 2 below.
I determine that the following areas in the vicinity of the United States border, located in the State of California in the Border Patrol's El Centro Sector are areas of high illegal entry (the “project areas”):
There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project areas pursuant to sections 102(a) and 102(b) of IIRIRA. In order to ensure the expeditious construction of the barriers and roads in the project areas, I have determined that it is necessary that I exercise the authority that is vested in me by section 102(c) of IIRIRA.
Accordingly, pursuant to section 102(c) of IIRIRA, I hereby waive in their entirety, with respect to all contracting actions associated with the construction of physical barriers and roads (including, but not limited to, accessing the project areas, creating and using staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and upkeep of physical barriers, roads, supporting elements, drainage, erosion controls, safety features, lighting, cameras, and sensors) in the project areas, all of the following statutes and regulations, including any legal requirements of, deriving from, or related to the subject of, the following statutes and regulations: 41 U.S.C. 3301; 41 U.S.C. 3302(b)-(e); 41 U.S.C. 3304; 41 U.S.C. 3306(a); 41 U.S.C. 3309(b)-(e); 41 U.S.C. 3502; 41 U.S.C. 4103(c), (d)(3)-(4); 41 U.S.C. 4104(b); 41 U.S.C. 4106(c)-(d); 41 U.S.C. 6101(b)(1); 41 U.S.C. 1126; 41 U.S.C. 1708(a), (c), (e); Section 880 of Division A, Title VIII of Public Law 115-232; 15 U.S.C. 644; 15 U.S.C. 657q; 15 U.S.C. 631(j); 15 U.S.C. 637(d)-(f), and (h); 13 CFR part 125; 48 CFR 22.404-5; 48 CFR 16.504(c); and 48 CFR 16.505(a)(4) and (5), (a)(8)(i) and (iii), (b).
This waiver does not revoke or supersede any other waiver determination made pursuant to section 102(c) of IIRIRA. Such waivers shall remain in full force and effect in accordance with their terms. I reserve the authority to execute further waivers from time to time as I may determine to be necessary under section 102 of IIRIRA.
The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved this document, is delegating the authority to electronically sign this document to Ian J. Brekke, who is Deputy General Counsel for DHS, for purposes of publication in the
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Dacia Rogers, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW, (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202-402-4109, (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Rogers.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the United States Fish and Wildlife Service (Service), are proposing a new information collection.
Interested persons are invited to submit comments on or before March 5, 2021.
Send your comments on the information collection request (ICR) by mail to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB (JAO/3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or by email to
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act (PRA, 44 U.S.C. 3501
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The Service's fall survey for eastern population sandhill crane was established in 1979. It is implemented by state and Federal agencies and public volunteers from eight states in the Atlantic and Mississippi Flyways, as well as Ontario, Canada. Sandhill cranes are widely dispersed during the breeding and wintering seasons and are difficult to count. The optimal time to survey cranes is during the last week of October when the majority of eastern population cranes breeding in Canada migrate to traditional staging grounds in the Great Lake States (
The information collected through this survey is vital in assessing the relative changes in the geographic distribution of the species. We use the information primarily to inform managers of changes in sandhill crane distribution and population trends. Without information on the population's status, we might promulgate hunting regulations that:
• Are not sufficiently restrictive, which could cause harm to the sandhill crane population, or
• Are too restrictive, which would unduly restrict recreational opportunities afforded by sandhill crane hunting.
Notifications for the survey are sent to volunteers and data results are entered into the data portal in order to calculate an abundance of sandhill cranes. This survey is conducted via an online survey platform to reduce cost, improve data quality, and decrease respondent burden. This survey has no statistical design. We collect the following information in conjunction with the account setup process and survey data submission:
We received OMB approval to conduct usability testing of the data entry portal in 2019 under Interior's Fast Track clearance process “DOI Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” (OMB Control No. 1090-0011). After conducting the usability testing of the data entry portal for one year, we are now ready to seek OMB's full approval of this information collection under the PRA.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
The Coastal Barrier Resources Reauthorization Act of 2006 requires the Secretary of the Interior to prepare digital versions of the John H. Chafee Coastal Barrier Resources System (CBRS) maps and make recommendations for the expansion of the CBRS. We, the U.S. Fish and Wildlife Service, have prepared draft revised boundaries for two existing CBRS units in Okaloosa and Walton Counties, Florida, and for four existing units and two proposed new units in Beaufort and Charleston Counties, South Carolina. This notice announces the availability of the proposed boundaries for public review and comment.
You may submit written comments by one of the following methods:
•
•
We request that you send comments by only one of the methods described above. We will post all information received on
Katie Niemi, Coastal Barriers Coordinator, via telephone at 703-358-2071, by email at
The Coastal Barrier Resources Reauthorization Act of 2006 (CBRRA; section 4 of Pub. L. 109-226) requires the Secretary of the Interior (Secretary) to prepare digital versions of the John H. Chafee Coastal Barrier Resources System (CBRS) maps and make recommendations for the expansion of the CBRS. We, the U.S. Fish and Wildlife Service (Service), have prepared draft revised boundaries for two existing CBRS units in Okaloosa and Walton Counties, Florida, and for four existing units and two proposed new units in Beaufort and Charleston Counties, South Carolina. This notice announces the availability of the proposed boundaries for public review and comment.
Coastal barrier ecosystems are inherently dynamic systems located at the interface of land and sea. Coastal barriers and their associated aquatic habitat (wetlands and open water) provide important habitat for fish and wildlife, and serve as the mainland's first line of defense against the impacts of severe storms. With the passage of the Coastal Barrier Resources Act (CBRA) in 1982 (16 U.S.C. 3501
CBRA established the CBRS, which originally comprised 186 geographic units encompassing approximately 453,000 acres of relatively undeveloped lands and associated aquatic habitat along the Atlantic and Gulf of Mexico coasts. The CBRS was expanded by the Coastal Barrier Improvement Act of 1990 (CBIA; Pub. L. 101-591) to include additional areas along the Atlantic and Gulf of Mexico coasts, as well as areas along the coasts of the Great Lakes, the U.S. Virgin Islands, and Puerto Rico.
The CBRS now comprises a total of 870 geographic units, encompassing approximately 3.5 million acres of land and associated aquatic habitat. These areas are depicted on a series of maps and known as the John H. Chafee Coastal Barrier Resources System. Most new Federal expenditures and financial assistance that would have the effect of encouraging development are prohibited within the CBRS. Development can still occur within the CBRS, provided that
The CBRS includes two types of units, System Units and Otherwise Protected Areas (OPAs). System Units contain areas that were relatively undeveloped and predominantly privately owned at the time of designation, though they may also contain areas held for conservation and/or recreation. Most new Federal expenditures and financial assistance, including Federal flood insurance, are prohibited within System Units. OPAs are predominantly comprised of conservation and/or recreation areas such as national wildlife refuges, State and national parks, and local and private conservation areas, though they may also contain private areas not held for conservation and/or recreation. OPAs are denoted with a “P” at the end of the unit number. The only Federal spending prohibition within OPAs is the prohibition related to Federal flood insurance.
The Secretary, through the Service, is responsible for administering CBRA, which includes maintaining the official maps of the CBRS, determining whether certain areas are located within the CBRS, consulting with Federal agencies that propose to spend funds within the CBRS, preparing updated maps of the CBRS, and making recommendations to Congress regarding changes to the CBRS. Aside from three minor exceptions, only Congress—through legislation—can modify the maps of the CBRS to add or remove land. These exceptions, which allow the Secretary to make limited modifications to the CBRS (16 U.S.C. 3503(c)-(e)), are for: (1) Changes that have occurred to the CBRS as a result of natural forces, (2) voluntary additions to the CBRS by property owners, and (3) additions of excess Federal property to the CBRS.
The Service receives numerous requests from property owners and other interested parties who seek to remove areas from the CBRS. When assessing potential removals from and additions to the CBRS, the Service considers a set of guiding principles and criteria which are further described under Types of Boundary Changes, below. The Service generally does not recommend removals from the CBRS, unless there is clear and compelling evidence that a mapping error was made. In cases where mapping errors are found, the Service recommends changes to the maps and works with Congress and other interested parties to create comprehensively revised maps using modern digital technology.
The methodology described below is the general process through which the Service prepares comprehensively revised CBRS boundaries, including those produced through this technical correction for certain Florida and South Carolina units. This methodology is consistent with the methodology used for prior comprehensive remapping efforts, including the Service's Hurricane Sandy Remapping Project (affecting nine States in the northeast) that is described in a notice the Service published in the
The Service procures the best available data and information necessary to: (1) Determine whether the existing CBRS unit boundaries appropriately follow the features they were intended to follow on-the-ground; (2) determine the level of development that was on-the-ground when the areas were originally included within the CBRS (
We review all applicable historical background records of the CBRS units (maintained by the Service), reports to Congress, public laws, legislative history, testimony from Congressional hearings,
When necessary, we also obtain and assess both geospatial and non-geospatial data from a variety of Federal sources (
Proposed CBRS boundaries prepared by the Service are based upon the best available information that the Service is able to obtain. In some cases, there are challenges associated with the data mining and research process. Data may be unavailable, unobtainable within a reasonable time frame, incomplete, outdated, and/or in conflict with other data of the same type from a different source. Construction dates and both present and historical land ownership information can be difficult to obtain and validate for certain areas (in particular, ownership information for undeveloped wetland areas). It is also difficult in some cases to determine structure type and use (
During the data mining and research phase of the technical correction review, the Service generally conducts outreach with certain landowners and/or managers of coastal barrier areas that are “otherwise protected” (as defined by the CBIA), meaning within the boundaries of an area established under Federal, State, or local law, or held by a qualified organization (defined under the Internal Revenue Code (26 U.S.C. 170(h)(3)), primarily for wildlife refuge, sanctuary, recreational purposes, or natural resource conservation purposes. Such outreach is generally not conducted with the landowners and/or managers of areas that do not meet the definition of “otherwise protected.” This includes areas zoned or regulated by State or local governments for the purpose of restricting the nature or density of development, but where such regulation does not necessarily reflect the intent of the property owners to protect the area for conservation and/or recreation in perpetuity (
Conservation/recreation area landowners and/or managers are contacted during the data mining and research phase in cases where the following information is necessary to prepare the proposed boundaries: (1) The location of conservation and/or recreation area boundaries (primarily in cases where the CBRS unit boundary
Given the large number of conservation and/or recreation area stakeholders within certain areas and complexities associated with mapping numerous small parcels, we generally limit our initial outreach to those stakeholders that own and/or manage conservation and/or recreation areas that are greater than approximately 10 acres in size within the existing and/or proposed System Units. See Types of Boundary Changes, below, for additional information about the mapping of conservation/recreation areas within the CBRS.
Additional outreach to these groups and a broader group of stakeholders is being conducted as part of the public review process; see Request for Comments, below, for further information.
The Service calculates the acreage of the CBRS units to help assess the areal extent of the units and to quantify proposed changes. The total acreage of a CBRS unit is comprised of fastland (land above mean high tide) and associated aquatic habitat (wetlands and open water). For the purpose of calculating acreage for CBRS remapping projects, the wetland/fastland acreage breakdown of the units is derived from the Service's National Wetlands Inventory (NWI) data. A shoreline is delineated (as described below) to be used in conjunction with the boundaries of the unit to calculate acreage, and only areas landward of this shoreline are included in the calculation. The associated aquatic habitat acreage numbers include open water landward of the coastal barrier, but not nearshore or offshore waters seaward of the shoreline. The offshore acreage of the units is not calculated, because a fixed seaward boundary for the units is generally not drawn due to the highly dynamic nature of the littoral zone.
Although acreage for offshore areas is not calculated, the entire sand sharing system on the seaward side, including the beach and nearshore area, is included within the CBRS units. The sand sharing system of coastal barriers is normally defined by the 30-foot bathymetric contour. In the Great Lakes and in large coastal embayments (
The Service calculates the shoreline of the units to help assess the linear extent of the CBRS and to facilitate the calculation of the acreage of the units as described above. For the purposes of CBRS remapping projects, the Service digitizes a shoreline boundary to artificially close off the units along the seaward shoreline. This shoreline boundary generally follows the wet/dry sand line along the seaward side of the unit as interpreted from the base imagery. Additionally, the shoreline boundary spans any inlets and/or other dividing water bodies within each unit. In some cases, highly convoluted shorelines are generalized. Due to the complexities of shoreline delineations, acreage numbers (rather than shoreline miles) are the most reliable way to quantify proposed changes to the CBRS for individual units.
The Service applies objective mapping protocols, statutory criteria, and a set of guiding principles for assessing modifications to the CBRS. In 1982 and 1985, the Department published guidance in the
CBRA requires that the Service review the maps of the CBRS at least once every 5 years and make modifications to the boundaries of the units to account for changes caused by natural forces such as accretion and erosion (16 U.S.C. 3503(c)). This type of change can be made by the Service administratively; however, it is also incorporated into comprehensive remapping efforts for efficiency and cost-saving purposes. The boundaries of System Units and OPAs are modified where appropriate to account for natural changes that have occurred since the maps were last updated.
CBRS boundaries are often intended to follow geomorphic features such as a shoreline or the interface between wetlands and fastlands. This applies mostly to System Units, though there are many cases where OPA boundaries follow geomorphic features. The boundaries of System Units and OPAs are modified where appropriate to align with underlying geomorphic features.
CBRS boundaries are often intended to follow development features, such as the edge of a road, a bridge, or the “break-in-development” that existed on-the-ground when the area was included within the CBRS. The break-in-development is where development ended, immediately adjacent to the last structure in a cluster or row of structures, or at the property parcel boundary of the last structure. This applies mostly to System Units, though there are cases where OPA boundaries follow development features. The boundaries of System Units and OPAs are modified where appropriate to align with development features.
CBRS boundaries are often intended to follow cultural features such as roads and political boundaries (
In carrying out CBRS remapping projects, the Service often finds areas of undeveloped fastland and associated aquatic habitat that are not currently within the CBRS but are appropriate for inclusion (either as additions to existing units or as entirely new units). When assessing whether an area may be appropriate for addition to the CBRS, the Service considers the following guiding principles:
(1) Whether the area may reasonably be considered to be a coastal barrier feature, or related to a coastal barrier ecosystem (this generally includes areas that are inherently vulnerable to coastal hazards such as flooding, storm surge, wind, erosion, and sea level rise) and
(2) Whether inclusion of the area within the CBRS is rationally related to the purposes of CBRA (
When assessing potential additions to the CBRS, the Service also considers the following criteria:
(1) The level of development on-the-ground (
(2) In the case of certain additions to existing units, the location of geomorphic, cultural, and development features on-the-ground at the time the adjacent area was included within the CBRS (
The boundaries of System Units and OPAs are modified where appropriate to add undeveloped fastland and associated aquatic habitat to the CBRS (either as additions to existing units or as entirely new units). Such additions to the CBRS are consistent with section 4(c)(3) of the 2006 Coastal Barrier Resources Reauthorization Act, which directs the Secretary to make recommendations for expansion of the CBRS. The unit type classification (
Additionally, the Service accommodates requests from landowners for voluntary additions to the CBRS or reclassifications of conservation/recreation areas from OPA to System Unit status. Voluntary additions to the CBRS can be made by the Service administratively (16 U.S.C. 3503(d)); however, they are also incorporated into ongoing CBRS mapping projects like this one for efficiency and cost-saving purposes.
In carrying out CBRS remapping projects, the Service also finds areas that were inappropriately included within the CBRS and constitute technical mapping errors. When assessing whether an area may be appropriate for removal from the CBRS, the Service considers the following guiding principles:
(1) Whether the area may reasonably be considered to be a coastal barrier feature, or related to a coastal barrier ecosystem (this generally includes areas that are inherently vulnerable to coastal hazards such as flooding, storm surge, wind, erosion, and sea level rise) and
(2) Whether inclusion of the area within the CBRS is rationally related to the purposes of CBRA (
The Service considers a technical mapping error to be a mistake in the delineation of the CBRS boundaries that was made as a result of incorrect, outdated, or incomplete information (often stemming from inaccuracies on the original base maps). When assessing whether an area may be appropriate for removal, the Service also considers the following criteria:
(1) The level of development on-the-ground at the time the area was included within the CBRS (
(2) The location of geomorphic, cultural, and development features on-the-ground at the time the area was included within the CBRS (
The boundaries of System Units and OPAs are modified where appropriate to remove areas that were inappropriately included within the CBRS and constitute technical mapping errors.
In carrying out CBRS remapping projects, the Service finds that the CBRS unit boundaries following channels in some cases include the entire channel and in other cases include none of the channel within the unit. The boundaries of System Units and OPAs are modified where appropriate to include the entire extent of the channel within the unit. In cases where a System Unit and an OPA share a coincident boundary that follows a channel located between the two units, the entire channel is generally included within the System Unit. In cases where two System Units or two OPAs fall within a channel, the coincident boundary is generally placed at the center of the channel. A buffer (of about 20 feet) is generally applied along developed shorelines (
In carrying out CBRS remapping projects, the Service considers the qualifying coastal barrier feature and delineates the unit boundaries in accordance with the protocols, criteria, and guiding principles identified above, regardless of whether the area is (or was previously) owned or managed for conservation and/or recreation. In other words, the boundaries of both System Units and OPAs are generally drawn using the same protocols, criteria, and guiding principles. The Service then determines the unit type classification (for proposed additions) and reclassification (for existing units) in accordance with the protocols below.
The unit type classification (
Areas that are not held for conservation/recreation may be included within OPAs if they are: (1)
Areas that are held for conservation/recreation may be included within System Units if they are: (1) Interspersed with and/or adjacent to a larger area that is not held for conservation/recreation and (2) undeveloped according to CBRA's statutory development criteria (16 U.S.C. 3503(g)(1)) at the time they were included within the CBRS (or are currently undeveloped in the case of proposed additions).
For conservation/recreation areas greater than 10 acres, the Service coordinates with the landowners (or managers) to seek their concurrence on inclusion of their area within the System Unit. If the owners do not concur with System Unit status, the Service classifies such areas as OPAs to the extent practicable. However, minor conservation/recreation areas (fastlands and wetlands smaller than 10 acres) and certain areas of open water would be impractical from a mapping perspective to delineate separately as OPAs and therefore may be included within System Units. Outreach is generally not conducted for these minor areas during the initial stakeholder outreach phase of the project (described above under Coastal Barrier Resources System Remapping Methodology). Descriptions of such “minor” areas within System Units are included in the set of unit summaries that describe the Service's proposed changes to the CBRS. See Availability of Proposed Coastal Barrier Resources System Boundaries and Related Information, below, for information on where to access the unit summaries.
The Service's records indicate that some conservation/recreation areas were intentionally added to the CBRS as System Units in the past. The Service generally does not seek concurrence from conservation/recreation area owners (regardless of size) when there is evidence of such prior intent, including letters from the stakeholder in the Service's records indicating that the organization supported inclusion of the property within the System Unit in the past, or records of specific changes to the Department's recommended maps made by the Congressional committees that reviewed them prior to their enactment.
If an area is dedicated to conservation and/or recreation after its initial inclusion within a System Unit, it is generally not reclassified to an OPA.
The Service has prepared draft revised boundaries that propose modifications to the CBRS in Florida and South Carolina in accordance with the methodology described above. The proposed revisions would remove areas that were inappropriately included within the CBRS in the past and add areas that meet CBRA's criteria for inclusion within the CBRS (16 U.S.C. 3503(g)(1)). The proposed revisions would also reclassify certain areas from System Unit to OPA, and vice versa.
A summary of metrics associated with the proposed changes by county/State is provided below. More detailed information regarding the specific proposed changes to each unit is available in a set of unit summaries. See Availability of Proposed Coastal Barrier Resources System Boundaries and Related Information, below, for information on where to access the unit summaries.
The Service has prepared comprehensively revised proposed boundaries for Moreno Point Unit P32/P32P in Okaloosa and Walton Counties, Florida. The proposed boundaries for the Florida units would remove 17 acres from the CBRS (14 acres of fastland and 3 acres of associated aquatic habitat) and add 57 acres to the CBRS (7 acres of fastland and 50 acres of associated aquatic habitat). The proposed boundaries would remove 31 structures from the CBRS and add no structures to the CBRS.
The Service has prepared comprehensively revised proposed boundaries for Morris Island Complex M06 in Charleston County, South Carolina, and for Harbor Island Unit M11, St. Phillips Unit M12, and Hunting Island Unit SC-09P in Beaufort County, South Carolina. The proposed boundaries include two proposed new OPAs, Morris Island Complex M06P and St. Phillips Unit M12P, which are within the vicinity of the existing units in Beaufort and Charleston Counties. These proposed new units are comprised entirely of areas that are not currently contained within the CBRS.
The proposed boundaries for the South Carolina units would remove 13 acres from the CBRS (all fastland) and add 9,956 acres to the CBRS (593 acres of fastland and 9,363 acres of associated aquatic habitat). The proposed boundaries would remove nine structures from the CBRS and add one structure to the CBRS.
The draft revised boundaries for the Florida and South Carolina units would make additions to the CBRS (including the creation of two new units) that are consistent with a directive in section 4 of the 2006 CBRRA concerning recommendations for expansion of the CBRS. The proposed boundaries are based upon the best data available to the Service at the time the areas were reviewed. Our assessment indicated that any new areas proposed for addition to the CBRS were relatively undeveloped at the time the proposed boundaries were created.
CBRA (16 U.S.C. 3503(g)) requires that we consider the following criteria when assessing the development status of a potential addition to the CBRS: (1) Whether the density of development is less than one structure per 5 acres of land above mean high tide (which generally suggests eligibility for inclusion within the CBRS); and (2) whether there is existing infrastructure consisting of a road, with a reinforced road bed, to each lot or building site in the area; a wastewater disposal system sufficient to serve each lot or building site in the area; electric service for each lot or building site in the area; and a fresh water supply for each lot or building site in the area (which generally suggests ineligibility for inclusion within the CBRS).
If, upon review of the proposed boundaries, interested parties find that any areas proposed for addition to the CBRS are currently developed (according to the criteria codified at 16 U.S.C. 3503(g)), they may submit supporting documentation of such development to the Service during this public comment period. For any areas proposed for addition to the CBRS, we will consider the density of development and level of infrastructure
Section 4 of the 2006 CBRRA requires the Secretary to provide an opportunity for the submission of public comments. We invite the public to review and comment on the proposed CBRS boundaries for CBRS Units P32/P32P, M06/M06P, M11, M12/M12P, and SC-09P. The Service is specifically notifying the following stakeholders concerning the availability of the proposed boundaries: The Chair and Ranking Member of the House of Representatives Committee on Natural Resources; the Chair and Ranking Member of the Senate Committee on Environment and Public Works; the members of the Senate and House of Representatives for the affected areas; the Governors of Florida and South Carolina; organizations that own (or manage) land held for conservation and/or recreation within the existing and proposed units (where such ownership information and mailing addresses were publicly available); other appropriate Federal, State, and local officials; and appropriate nongovernmental organizations.
The Service is generally not notifying individual private property owners concerning the availability of the proposed boundaries (except for individuals who have specifically contacted us in the past concerning a technical correction request). However, the Service encourages local officials to distribute the “Dear Interested Party” notification letter included in the stakeholder outreach toolkit, described below under Availability of Proposed Coastal Barrier Resources System Boundaries and Related Information, to affected property owners in their communities.
Interested parties may submit written comments and accompanying data as described in
Following the close of the comment period, we will review all comments we receive on the proposed boundaries and make adjustments to the boundaries, as appropriate, based on information received through public comments, updated aerial imagery, CBRA criteria, and objective mapping protocols. We will then prepare final recommended maps to be submitted to Congress. The final recommended maps will become effective only if they are adopted by Congress through legislation.
The CBRS Projects Mapper (an online interface for the public to view the proposed boundaries and obtain information about the proposed changes) and unit summaries (containing historical changes and proposed changes to the individual units) can be accessed from the Service's website at
Additionally, a stakeholder outreach toolkit (comprising unit summaries, a shapefile of the draft revised boundaries, and a “Dear Interested Party” notification letter) will be made available to local officials upon request. Local officials may use this toolkit to increase awareness of the project within their communities. Local officials may contact the individual identified in
Interested parties who are unable to access the proposed boundaries or other information online may contact the individual identified in
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing a new information collection in use without an OMB Control Number.
Interested persons are invited to submit comments on or before February 3, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501
On June 1, 2020, we published in the
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
• The National Wildlife Refuge System Administration Act of 1966 (Administration Act, 16 U.S.C. 668dd-668ee), as amended by the National Wildlife Refuge System Improvement Act of 1997, authorizes the Secretary of the Interior to negotiate and award contracts and issue regulations to carry out the Act.
• The Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-3) allows the use of refuges for public recreation when such use is not inconsistent with or does not interfere with the primary purpose(s) of the refuge.
• The Refuge Revenue Sharing Act (16 U.S.C. 715s) authorizes the Secretary to grant privileges and collect revenues from leases for public accommodations or facilities established for the System.
Specifically, the Administration Act provides that, with respect to the Refuge System, it is the policy of the United States that—
a. Each refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which that refuge was established;
b. Compatible wildlife-dependent recreation is a legitimate and appropriate general public use of the System, directly related to the mission of the System and the purposes of many refuges, and which generally fosters refuge management and through which the American public can develop an appreciation for fish and wildlife;
c. Compatible wildlife-dependent recreational uses are the priority general public uses of the System and shall receive priority consideration in refuge planning and management; and
d. When the Secretary determines that a proposed wildlife-dependent recreational use is a compatible use within a refuge, that activity should be facilitated, subject to such restrictions or regulations as may be necessary, reasonable, and appropriate.
The Administration Act also provides that, in administering the Refuge System, the Secretary shall—
a. Recognize compatible wildlife-dependent recreational uses as the priority general public uses of the System, through which the American public can develop an appreciation for fish and wildlife;
b. Ensure that opportunities are provided within the System for compatible wildlife-dependent recreational uses;
c. Ensure that priority general public uses of the System receive enhanced consideration over other general public uses in planning and management within the System; and
d. Provide increased opportunities for families to experience compatible wildlife-dependent recreation, particularly opportunities for parents and their children to safely engage in traditional outdoor activities, such as fishing and hunting.
Private businesses and non-profit organization under contract to the Service provide recreational, educational, and interpretive enjoyment of our lands and waters by managing lodging, food, transportation, and supplies and equipment for the enjoyment of the visiting public. These services gross approximately $3,000,000 every year and provide jobs for more than 100 people annually.
The regulations at 50 CFR subpart F (§ 25.61) primarily implement the authorities governing public use facilities operated by concessionaires or cooperators under appropriate contact or legal agreement on national wildlife refuges where there is a demonstrated justified need for services or facilities, including but not limited to boat rentals, swimming facilities, conducted tours of special natural attractions, shelters, tables, trailer lots, food, lodging, and related service.
Service Manual chapters 630 FW 6-8 discuss the Service's current policy for concession management and provide guidance for permitting and administering concession operations on Service lands. We use concession contracts to assist us in providing wildlife-dependent recreation activities to the visiting public by using contracts between the Service and a private entity, where the private entity is allowed to charge a fee for services provided at a field station to the visiting public.
We collect information in a narrative (non-form) format. Details concerning the specific information required are contained in 50 CFR 25.61 and the recently updated Service Manual chapters available to the public on the Service's website at
Below are examples of types of information the Service collects from a potential or current concessionaire.
• Description of how the respondent will conduct operations to minimize disturbance to wildlife; protect refuge resources; and provide visitors with a high-quality, safe, and enjoyable visitor experience.
• Proposal to protect, conserve, and preserve resources of the refuge. The proposal must respond to specific resource management objectives and issues at the refuge and regarding the contract in question.
• Proposal to provide necessary and appropriate visitor services at reasonable rates. This proposal must respond to specific visitor service questions at the refuge and regarding the contract in question.
• Experience and related background of the offeror, including past performance and expertise of the offeror in providing the same or similar visitor services as those to be provided under the draft concession contract.
• Financial capability of the offeror to carry out its proposal. In particular, we require projected financials, including initial investments, startup expenses, income statement, operating assumptions, cash flow statement, recapture of investments, and all associated assumptions.
• The amount of the proposed minimum franchise fee and other forms of financial consideration.
• Offeror's transmittal letter, including the name and contact information of the entity offering a proposal to operate a concession contract.
• Business type of the offeror, such as corporation, limited liability company, partnership, etc.
• Business history information, including adverse history that could impact future operations under a concession contract.
• Credit report, so that we can understand the offeror's credit history and any risks of contracting with the entity.
• Proposed staffing/management operation information, including organization charts and delegations of authority, to ensure adequate staffing.
• Proof of indemnification, including public liability insurance that co-names the Government as co-insured.
• Annual financial reports providing concessioner financial information, as required by each concession contract.
• Quarterly and annual progress reports to monitor performance.
• Inspections and inspection reports conducted in concert with the on-site concession manager.
• Information to assess the transferee's ability to manage the business successfully and fulfill the terms of the concession contract, in order for the Regional Director to grant approval.
• In accordance with Service Manual chapter 630 FW 8.3, a concessioner (and any subconcessioner) must keep and make available to the Service records for the term of the concession contract.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the countervailing duty order on certain magnesia carbon bricks from China and the antidumping duty orders on certain magnesia carbon bricks from China and Mexico would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted January 4, 2021. To be assured of consideration, the deadline for responses is February 3, 2021. Comments on the adequacy of responses may be filed with the Commission by March 18, 2021.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post-employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202-205-3408.
Please note the Secretary's Office will accept only electronic filings at this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 20-5-478, expiration date June 30, 2023. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.61 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Solas OLED Ltd. on December 28, 2020. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain active matrix OLED display devices and components thereof. The complaint names as respondents: BOE Technology Group Co. Ltd. of China; Beijing BOE Display Technology Co., Ltd. of China; BOE Technology America, Inc. of Santa Clara, CA; LG Electronics Inc. of Korea; LG Electronics USA, Inc. of Englewood Cliffs, NJ; LG Display America, Inc. of San Jose, CA; LG Display Co., Ltd. of Korea; Samsung Electronics Co., Ltd. of Korea; Samsung Electronics America, Inc. of Ridgefield Park, NJ; Samsung Display Co., Ltd. of Korea and Sony Electronics Inc. of San Diego, CA. The complainant requests that the Commission issue a permanent limited exclusion order, cease and desist orders, and impose a bond on importation and sales of infringing products during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3518”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on November 25, 2020, under section 337 of the Tariff Act of 1930, as amended, on behalf of Traeger Pellet Grills LLC of Salt Lake City, Utah. A letter supplementing the complaint was filed
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Katherine Hiner, Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2020).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1, 2, 12, 16, 21, and 22 of the '720 patent and claims 1-3, 6-9, 11-14, 18, and 22-24 of the '833 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “cloud-connected wood-pellet grills and components thereof, including the digital controller”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Traeger Pellet Grills LLC, 1215 East Wilmington Ave., Suite 200, Salt Lake City, Utah 84106.
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served: GMG Products LLC, 72315 US Highway 101, Lakeside, OR 97449.
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party to this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondent in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Russell Kirk, Breaking Gate, LLC, and Ottumwa Northshore, LLC, pursuant to 33 U.S.C. 1311(a), to obtain injunctive relief from and impose civil penalties against the Defendants for violating the Clean Water Act by discharging pollutants without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring the Defendants to restore impacted areas, perform mitigation, and pay a civil penalty.
The Department of Justice will accept written comments relating to the proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Patrick R. Jacobi, Environmental Defense Section, Denver Place Building, 999 18th Street, Suite 370—South Terrace, Denver, CO 80202, and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Southern District of Iowa, 123 East Walnut Street, Des Moines, IA 50309. In addition, the proposed Consent Decree may be examined electronically at
Employee Benefits Security Administration, Labor.
Notice of proposed exemption.
This document provides notice of the pendency before the Department of Labor (the Department) of a proposed individual exemption from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). If this proposed exemption is granted, certain entities with specified relationships to Goldman Sacs will not be precluded from relying on the exemptive relief provided by Prohibited Transaction Class Exemption 84-14.
If granted, this proposed exemption will be in effect for five years beginning on the Conviction Date. Written comments and requests for a public hearing on the proposed exemption should be submitted to the Department by February 10, 2021.
All written comments and requests for a hearing (at least three copies) should be sent to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, U.S. Department of Labor, 200 Constitution Avenue NW, Suite 400, Washington, DC 20210, Attention: Application No. D-12030 or via private delivery service or courier to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, U.S. Department of Labor, 122 C St. NW, Suite 400, Washington, DC 20001. Attention: Application No. D-12030. Interested persons may also submit comments and/or hearing requests to EBSA via email to
Joseph Brennan of the Department at (202) 693-8456. (This is not a toll-free number.)
1. The Goldman Sachs Group, Inc. (Goldman) is a global investment banking, securities and investment management firm with approximately 36,000 employees and offices in over 30 countries. Goldman has a number of affiliated asset managers, including: The Goldman Sachs Trust Company, N.A.; Goldman Sachs Bank USA; Goldman Sachs & Co. LLC; Goldman Sachs Asset Management, L.P.; Goldman Sachs Asset Management International; Goldman Sachs Hedge Fund Strategies LLC; GS Investment Strategies, LLC; GSAM Stable Value, LLC; The Ayco Company, L.P.; Aptitude Investment Management LP; Rocaton Investment Advisors, LLC; United Capital Financial Advisers, LLC; and PFE Advisors, Inc. (together, the Goldman Sachs Affiliated QPAMs). Goldman may be related to, but does not own a controlling interest in, a number of other asset managers. Similarly, Goldman Sachs Malaysia may be related to, but does not own a controlling interest in, a number of other asset managers (the Goldman Sachs Related QPAMs).
2. The Goldman affiliated asset managers' clients include plans subject to Part IV of Title I of ERISA and plans subject to section 4975 of the Code, with respect to which the Goldman Sachs Affiliated QPAMs rely on PTE 84-14, or with respect to which the Goldman Sachs Affiliated QPAMs (or a Goldman Sachs affiliate) have expressly represented that the managers qualify as a QPAM or rely on the QPAM Exemption.
3. The rules set forth in section 406 of ERISA and section 4975(c)(1) of the Code proscribe certain “prohibited transactions” between plans and related parties with respect to those plans. Under ERISA, such parties are known as “parties in interest.” Under section 3(14) of ERISA, parties in interest with respect to a plan include, among others, the plan fiduciary, a sponsoring employer of the plan, a union whose members are covered by the plan, service providers with respect to the plan, and certain of their affiliates.
4. The prohibited transaction provisions under section 406(a) of ERISA and 4975(c)(1) of the Code prohibit, in relevant part, sales, leases, loans or the provision of services between a party in interest and a plan (or an entity whose assets are deemed to constitute the assets of a plan), as well as the use of plan assets by or for the benefit of, or a transfer of plan assets to, a party in interest.
5. PTE 84-14 reflects the Department's conclusion that it could provide broad relief from the prohibited transaction provisions of section 406(a) of ERISA and 4975(c)(1) of the Code, in the circumstances set forth in that exemption, only if the commitments and the investments of plan assets, and the negotiations leading thereto, are the sole responsibility of an independent, discretionary manager.
6. Section I(g) of PTE 84-14 prevents an entity that may otherwise meet the definition of a QPAM from utilizing the exemptive relief provided by PTE 84-14, for itself and its client plans, if that entity or an “affiliate”
7. The inclusion of Section I(g) in PTE 84-14 is, in part, based on an expectation that QPAMs will maintain a high standard of integrity. This expectation extends not only to the QPAM itself, but also to those who may be in a position to influence the policies of the QPAM.
8. On October 21, 2020, Goldman Sachs Malaysia entered a guilty plea for conspiracy to commit offenses against the United States, in violation of the anti-bribery provisions of the Foreign Corrupt Practices Act of 1977 (FCPA). The following day, the District Court for the Eastern District of New York accepted Goldman Sachs Malaysia's guilty plea Goldman Sachs Malaysia FCPA Conviction. For purposes of Section I(g) of PTE 84-14, the date Goldman is sentenced is the Conviction Date. Therefore Goldman Sachs (Malaysia) Sdn. Bhd. (Goldman Sachs Malaysia), and the Goldman Sachs Affiliated and Related QPAMs will no longer be able to rely on the relief provided by PTE 84-14 as of the date of Goldman Sachs Malaysia's sentencing.
9. According to the Plea Agreement's Statement of Facts,
10. Tim Leissner (Leissner) was employed by Goldman between 1998 and 2016, and was a Participating Managing Director between November 2006 and February 2016. Additionally, he held various senior positions in Goldman's Investment Banking Division in Asia between 2011 and 2016, including Chairman of Southeast Asia, a region that included Malaysia, between July 2014 and February 2016, and he served on the Board of Directors for Goldman Malaysia. Leissner's job included obtaining and executing business for Goldman.
Ng Chong Hwa, also known as “Roger Ng” (Ng), was employed by various Goldman subsidiaries between 2005 and 2014, including Goldman Malaysia. Between April 2010 and May 2014, Ng was a Managing Director of Goldman. For part of that time, Ng served as Head of Investment Banking and on the Board of Directors for Goldman Malaysia, and was then employed by another Goldman subsidiary in Malaysia.
11. The bribes resulted in Goldman being engaged on, among other projects, three bond offerings that were related to 1MDB's energy acquisitions and that raised a total of approximately $6.5 billion for 1MDB in 2012 and 2013. The bribes were also intended to help Goldman secure a role on an anticipated IPO with respect to 1MDB's energy acquisitions. These three bond offerings and a related acquisition, along with a transaction involving Jho Low (Low) and IPIC, ultimately earned Goldman in excess of $600 million in fees and revenue across its divisions, and increased Goldman's stature in Southeast Asia. The parties made payments and communications in furtherance of the scheme by wire.
12. Pursuant to Goldman's internal accounting controls, each 1MDB bond transaction required Goldman management's general and specific authorization. Moreover, because Goldman initially purchased the full value of each bond from 1MDB using Goldman's assets, the transactions had to be authorized and properly recorded in accordance with Goldman's procedures. Goldman's internal accounting controls included the Firmwide Capital Committee (FWCC), which Goldman's Chief Executive Officer authorized to provide global oversight and approval of bond transactions, including those transactions in which Goldman used its own assets to purchase financial instruments, such as the 1MDB bonds. Goldman's internal accounting controls also included approval of the bonds by Goldman's Business Intelligence Group and Compliance Group, both of which were represented on the FWCC.
13. As detailed in the Plea Agreement's Statement of Facts, Low, an individual known to have relationships with high-ranking officials in Malaysia and Abu Dhabi, and whom Goldman had rejected as a client multiple times because of his unexplained source of wealth, conspired with Leissner and Ng to facilitate the bribery scheme. Despite the rejections, Leissner, Ng and others at Goldman continued their relationship with Low and used him to obtain and retain business for Goldman from 1MDB and others. Between 2012 and 2013, Leissner, Ng, Employee 1 and other Goldman employees worked with Low to help 1MDB raise more than $6.5 billion through three separate bond offering transactions, referred to internally at Goldman as “Project Magnolia,” “Project Maximus” and “Project Catalyze,” respectively. Employee 1 served as a Goldman participating managing director between October 2007 and November 2018 and, during the relevant time period, held various leadership positions in Goldman's Asia operations.
14. Leissner, Ng and Employee 1 used Low's connections within the Governments of Malaysia and Abu Dhabi to obtain and retain this and other business for Goldman and, in turn, concealed Low's involvement in the deals from certain employees and agents of Goldman. In total, Goldman conspired to provide approximately $1.6077 billion to, or for the benefit of, foreign officials and their relatives. Approximately $18.1 million was paid from accounts controlled by Leissner.
15. Certain of Goldman's employees and agents, including Leissner, Ng and Employee 1, circumvented Goldman's internal accounting and other controls, and other Goldman employees and agents responsible for implementing Goldman's internal accounting controls failed to do so in connection with the 1MDB bond deals. Specifically, although employees serving in Goldman's compliance control functions (
16. In February 2012, 1MDB engaged Goldman as its financial advisor for its anticipated purchase of a Malaysian energy company (Malaysian Energy Company A) through a bond transaction. Low helped secure Goldman's role in assisting 1MDB in its pursuit of Malaysian Energy Company A. In early 2012, Leissner, Ng, Low and 1MDB officials met in Malaysia to discuss obtaining a guarantee from IPIC to Goldman, which would purchase all of the bonds initially and then sell the bonds to other investors. It is the Department's understanding that the guarantee was designed to ensure that Goldman was protected in the event the bonds dropped in price between the time the bonds were issued and the time the bonds were sold to investors.
17. In February 2012, Leissner and Ng traveled to London to meet with Low and others to discuss the proposed bond transaction. Leissner and Ng expended Goldman resources on their travel to London. At that meeting, Low explained that government officials from Abu Dhabi and Malaysia would have to be bribed to obtain the guarantee from IPIC and get the necessary approvals from Malaysia and 1MDB. Low advised that a high-ranking official of IPIC and a Malaysian official would have to be paid the largest bribes to approve the transaction, and that other lower-level officials would need to be bribed as well. Subsequently, Leissner and Ng each separately informed Employee 1 about the discussion on bribing foreign officials.
18. Meanwhile, although employees within Goldman's control functions
19. On April 4, 2012, Goldman executives in New York participated in an FWCC meeting by phone. During this meeting, Leissner was asked whether Low was involved in Project Magnolia and Leissner said that, other than arranging a meeting between Leissner and IPIC Official 1, Low was not involved. Goldman's compliance control functions accepted the statements of the deal team members about Low's involvement at face value, rather than taking additional steps that Goldman's compliance control functions took in other deals, such as reviewing the electronic communications of members of the deal team to look for evidence of Low's involvement. Had Goldman conducted a review of Leissner's electronic communications at this time, it would have discovered multiple messages linking Low to, among others, the bond deal, 1MDB officials, Malaysian officials and Abu Dhabi officials, as well as the use of personal email addresses by Leissner and Ng to discuss Goldman business.
20. On May 16, 2012, Goldman's committees approved Project Magnolia and on May 21, 2012, the $1.75 billion bond issuance closed. Goldman purchased the entire bond issuance from 1MDB. On May 22, 2012, Goldman caused approximately $907,500,000 in proceeds from Project Magnolia to be wired to a 1MDB subsidiary, through a correspondent bank account in New York, New York. Goldman booked approximately $192,500,000 in fees for this bond transaction and an additional approximately $16,800,000 in fees for advising on the acquisition of Malaysian Energy Company A. Low and others subsequently caused multiple transfers of funds from the proceeds of Project Magnolia to various shell companies.
21. Within weeks of closing Project Magnolia, in May 2012, 1MDB sought assistance from Goldman to purchase a second Malaysian energy company (Malaysian Energy Company B) and to issue a bond to raise funds for the acquisition. In August 2012, 1MDB agreed to purchase Malaysian Energy Company B for approximately $814 million and planned to finance the purchase with another $1.75 billion bond guaranteed indirectly by IPIC.
22. Once again, Goldman's compliance control functions simply accepted at face value the representations of the deal team members and failed to further investigate Low's suspected involvement in this bond deal. For example, on June 20, 2012, a member of Goldman's control functions asked members of the deal team, “Is Jho Low involve[d] in this transaction? Please also keep us posted if there are any other politically exposed person involve[d] in this transaction in a non-official capacity.” A deal team member responded “no.”
23. Additionally, on October 10, 2012, in response to committee questions, Leissner told a firmwide committee that neither Low nor any intermediary was involved in Project Maximus. Despite their continued concern, as evidenced by their repeated questions, Goldman's compliance control functions did not engage in electronic surveillance of Leissner's correspondence or activities to determine whether Low was involved in the deal.
24. Goldman's continued compliance control failures were further compounded when Goldman ignored additional red flags raised by Project Maximus, including that 1MDB was seeking to raise additional funds within a few months of raising $1.75 billion through Project Magnolia without having utilized the full amount from that deal, and was also seeking to raise far more than was needed to acquire Malaysian Energy Company B. Goldman's compliance control functions also failed to verify how Project Magnolia's proceeds were used.
25. Project Maximus closed on October 19, 2012, and Goldman purchased the entire bond issuance from 1MDB. On October 19, 2012, Goldman caused approximately $1.64 billion to be transferred by wire through correspondent accounts in the United States to another 1MDB subsidiary. Goldman booked approximately $110,000,000 in fees in connection with Project Maximus. Further, Low and others caused multiple transfers of funds from the proceeds of Project Maximus to a number of different shell companies.
26. In November 2012, almost immediately after Project Maximus closed, Leissner and Low began working on another bond issuance known as Project Catalyze that was purportedly intended to fund 1MDB's portion of a joint venture with Aabar. Ultimately, Goldman underwrote this third bond issuance that raised an additional $3 billion for 1MDB with Goldman acting as arranger and underwriter.
27. Goldman's compliance control functions had continuing suspicions that Low was working on the Project Catalyze bond deal. Once again, however, the compliance control functions relied solely on the deal team members' denials of Low's involvement without any further scrutiny. On April 24, 2013, a senior Goldman executive who was a member of Goldman's approval committee located in New York, New York, emailed Leissner about “1MDB,” asking: “Is there a story circulating about an intermediary on the Magnolia trades??” Leissner responded, “Not that I am aware of . . . There definitely was no intermediary on any of the trades. The blogs in Malaysia always try to link a young Chinese business man [sic], Jho Low, to 1MDB. That is not the case other than he was an advisor alongside other prominent figures to the King of Malaysia at the time of the creation of 1MDB.” There was no follow-up by Goldman's compliance control functions about Low.
28. Goldman also failed to address other red flags that were raised by the proposed $3 billion transaction, including, 1MDB raising large sums of money with no identified use of proceeds within months of Project Magnolia and Project Maximus, and Goldman's failure to verify use of past bond proceeds.
29. Goldman's committees nevertheless approved Project Catalyze on March 13, 2013, and the proceeds from Project Catalyze were issued on March 19, 2013. Goldman purchased the entire bond issuance from 1MDB and booked approximately $279,000,000 in fees on Project Catalyze.
30. Low and Leissner continued to pay bribes to government officials from the bond proceeds. On March 19, 2013, Goldman transferred via wire from and through the United States approximately $2.7 billion from Project Catalyze to an account for another 1MDB subsidiary (1MDB Subsidiary 3) at Foreign Financial Institution A. Subsequently, Low caused approximately $1,440,188,045 to be
31. After the bond deals were completed, in and between March 2013 and February 2016, additional red flags were raised in the press and on internal phone calls among Goldman's employees and executives about Low's involvement in the deals and the possible payment of bribes in connection with the deals. Goldman failed to investigate these red flags or to perform an internal review of its role in the bond deals despite the clear implication that the deals had involved criminal wrongdoing. Further, high ranking employees of Goldman failed to escalate concerns about bribery and other criminal conduct related to the bond deals pursuant to Goldman's escalation policy, which required any Goldman employee who became aware of any conduct that could raise, among other things, “a legal, compliance, reputational, ethical, accounting, [or] internal accounting control” issue, to report such conduct immediately to a supervisor and to Goldman's compliance control functions.
32. In May 2013, a Goldman participating managing director (Employee 3) who had been involved in the 1MDB deals, discussed the deals in a series of phone calls with Goldman senior executives that were recorded on Goldman phone lines. For example, on May 8, 2013, Employee 3 called a senior Goldman executive about, among other things, Project Catalyze. Employee 3 stated, “the main reason for the delay for [IPIC] not having funded their three billion into the JV with 1MDB is [Abu Dhabi Official 1] is trying to get something on the side in his pocket.” He continued later, “I think it's quite disturbing to have come across this piece of information . . . .” The senior Goldman executive replied, “What's disturbing about that? It's nothing new, is it?” In response, Employee 3 agreed that the situation was nothing new. Employee 3 had at least one substantially similar phone conversation with at least one other senior Goldman executive.
33. Subsequently, in May 2015 and again in October 2015, amid negative media reporting linking Low with the 1MDB bond deals and Malaysian Official 1, Goldman executives and employees discussed Low's involvement in the 1MDB deals. For example, on a recorded call on October 13, 2015, Employee 3 told the senior Goldman executive that a senior IPIC officer had informed his subordinate that “there are a number of key people who are involved in, let's call it the situation. [Abu Dhabi Official 1] is one. Jho Low for sure. He thinks Jho Low is the leader of the pack. And he has a very strong view that [Leissner] is involved.” The compliance control functions never took steps to address these red flags.
34. There were also subsequent emails and recorded phone calls between Employee 3 and senior Goldman executives in the compliance control functions about the disparity between how due diligence and risk issues were handled on various deals. In particular, they discussed the unusual latitude granted to certain employees, such as Leissner and Employee 1.
35. For example, in January 2016, on a recorded call between Employee 2, who had been involved in BIG's review of each of the relevant transactions, and Employee 3, they discussed, among other things, Leissner's conduct, including Leissner's false statements that Low was not involved in the 1MDB deals. Employee 2 then noted that there were several similarly “problematic” people from a compliance perspective at Goldman, and Employee 3 agreed, immediately mentioning Employee 1 as an example of a “problematic” person. Employee 3 also noted the “double standard” between the minor repercussions meted out to favored employees like Leissner and Employee 1 when they got caught trying to circumvent the compliance control functions, and the more serious repercussions to other, less favored employees who engaged in similar behavior. Employee 2 agreed, stating, “Yes, double standard, and it looks stupid.” In the course of the call, Employee 2 also noted that Leissner's email communications had been searched as part of an internal investigation into a separate incident involving the use of an intermediary that occurred subsequent to the 1MDB deals, which Employee 2 stated “seems to me should have been done ages ago.” Employee 3 similarly discussed on a recorded call in February 2016 with a high-ranking employee in compliance, who was a managing director, how repercussions for compliance control function violations varied radically between deals.
36. On October 15, 2020, the Applicant filed an exemption request for Goldman Sachs Affiliated QPAMs and Goldman Sachs Related QPAMs to continue to rely on PTE 84-14, notwithstanding the Goldman Sachs Malaysia FCPA Conviction they expected would be entered against Goldman Sachs Malaysia. As noted above, Section I(g) of PTE 84-14 prevents an entity that may otherwise meet the definition of a QPAM from utilizing the exemptive relief provided by PTE 84-14, if that entity or an “affiliate” thereof or any owner, direct or indirect, of a 5 percent or more interest in the QPAM has, within 10 years immediately preceding the transaction, been convicted as a result of criminal activity described in that section. Since the Goldman Sachs Affiliated QPAMs are affiliated with Goldman Sachs Malaysia as defined in PTE 84-14, the Goldman Sachs Affiliated QPAMs will no longer be able to rely on the relief provided by PTE 84-14 following the Conviction Date. Further, since Goldman Sachs Malaysia may own five or more percent of an asset manager that is not otherwise affiliated with Goldman Sachs Malaysia (
The Applicant represents that the exemption will enable the Covered Plans to continue their current investment strategy with their current investment manager or trustee. According to the Applicant, if the Department denies the requested exemption, Covered Plans could decide to find other managers, at significant costs to them. The Applicant states that many of the assets of the Covered Plan accounts could be difficult to transition, and the interruption of certain investment strategies, such as stable value, could create significant disruption and liquidation costs for Covered Plans with assets invested in those strategies.
37. The Applicant represents that disqualification from PTE 84-14 would deprive Covered Plans of the investment management services (some of which are highly specialized) that these plans expected to receive when they appointed the Goldman Sachs Affiliated or Related Asset Manager, and could result in the termination of relationships that the fiduciaries of the plans have
38. The Applicant represents that, with respect to many Covered Plan transactions, virtually every counterparty to a Covered Plan may be a service provider to that Covered Plan. Transactions between the Covered Plan and the party-in-interest service provider would be prohibited under one or more provisions of Section 406 of ERISA, absent an exemption. The Applicant states that, because counterparties are comfortable with the QPAM Exemption, it is generally the most commonly used prohibited transaction exemption. The Applicant represents further that, with respect to a potential transaction between a Covered Plan and a counterparty, the counterparty may provide less advantageous pricing with respect to the transaction, or may not bid at all, if the Covered Plan's investment manager is not a QPAM, and various strategies in which Covered Plans are managed may depend significantly on the QPAM Exemption.
39. The Applicant represents that it would be disruptive and expensive to cause plan fiduciaries to reconsider their arrangements with their chosen investment manager because of uncertainties relating to the QPAM Exemption. This uncertainty, according to the Applicant, could disrupt certain investment strategies and could result in significant redemptions from pooled funds, which would frustrate efforts to effectively manage the pooled funds' assets, harm remaining plan investors, and increase the expense ratios of the investment funds.
40. In its exemption request, the Applicant seeks a ten-year exemption term. The Department has determined that, given the magnitude, gravity, duration and pervasiveness of the Goldman Sachs Malaysia FCPA Misconduct, along with numerous Goldman compliance control failures associated with the Goldman Sachs Malaysia FCPA Misconduct, limiting relief to five years would be in the interest of, and provide more adequate protection for, the Covered Plans. If the Applicant seeks additional exemptive relief, it can submit a new exemption request before the end of this exemption's five year term, if granted. At that time, the Department will review the application, the audit reports required by this exemption, and other information it deems necessary to determine whether additional relief is warranted.
41. The Department's most recent QPAM Section I(g) individual exemptions contain conditions that are substantially similar to the conditions set forth in this proposed exemption.
42. In developing administrative exemptions under Section 408(a) of ERISA, the Department implements its statutory directive to grant only exemptions that are appropriately protective of, and in the interest of, affected plans and IRAs. The Department is proposing this exemption with a number of protective conditions that would protect Covered Plans (and their participants and beneficiaries) and allow them to continue to utilize the services of the Goldman Sachs Affiliated and Related QPAMs. If this proposed exemption is granted as proposed, it would allow these Covered Plans to avoid the costs and expenses that may arise if such plans and IRAs are forced on short notice to hire a different QPAM because the Goldman asset managers are no longer able to rely on the relief provided by PTE 84-14, due to the Goldman Sachs Malaysia FCPA Conviction.
43. It is a material condition of this exemption that, with the exception of one individual who worked in a non-fiduciary business within a Goldman Sachs Affiliated QPAM, and who had no responsibility for, and exercised no authority in connection with, the management of plan assets, the Goldman Sachs Affiliated QPAMs and Goldman Sachs Related QPAMs: (a) Did not know of, did not have reason to know of, and the Goldman Sachs Malaysia FCPA Misconduct; and (b) did not receive direct compensation, or knowingly receive indirect compensation, in connection with the Goldman Sachs Malaysia FCPA Misconduct.
44. The protective conditions in this proposed exemption include a requirement that the fiduciary and asset management functions of the Goldman Sachs Affiliated QPAMs must, at all times, remain isolated from the Goldman Sachs Malaysia FCPA Misconduct that underlies the Goldman Sachs Malaysia FCPA Conviction. Further, under the proposed exemption's conditions, Goldman Sachs Affiliated QPAMs may not employ or knowingly engage any of the individuals who participated in the Goldman Sachs Malaysia FCPA Misconduct.
45. This proposed exemption requires that no Goldman Sachs Affiliated QPAM may use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code to enter into any transaction with Goldman Sachs Malaysia, or to engage Goldman Sachs Malaysia to provide any service to such investment fund, regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption. Other than with respect to
46. Each Goldman Sachs Affiliated QPAM must develop, implement and maintain written policies and procedures (the Policies) that are reasonably designed to ensure: (a) That the asset management decisions of the Goldman Sachs Affiliated QPAMs are conducted independently of Goldman and Goldman Sachs Malaysia's corporate management and business activities; (b) that the Goldman Sachs Affiliated QPAMs fully comply with ERISA's fiduciary duties, and with ERISA's and the Code's prohibited transaction provisions; (c) that the Goldman Sachs Affiliated QPAMs do not knowingly participate in any other person's violation of ERISA or the Code with respect to Covered Plans; (d) that any filings or statements made by the Goldman Sachs Affiliated QPAMs to regulators on behalf of, or in relation to, Covered Plans are materially accurate and complete; (e) that the Goldman Sachs Affiliated QPAMs do not make material misrepresentations or omit material information in their communications with such regulators, or in their communications with Covered Plans; and (f) that the Goldman Sachs Affiliated QPAMs comply with the terms of the exemption.
47. This proposed exemption requires each Goldman Sachs Affiliated QPAM to develop, implement and maintain a program of training (the Training), to be conducted at least annually, for all relevant asset/portfolio management, trading, legal, compliance, and internal audit personnel. This required Training must, at a minimum, cover the Policies, ERISA and Code compliance, ethical conduct, the consequences for not complying with the conditions described in this proposal, and the requirement for prompt reporting of wrongdoing.
48. This proposed exemption requires that each Goldman Sachs Affiliated QPAM submit to three audits, conducted by an independent auditor, to evaluate the adequacy of and compliance with, the Policies and Training required by the exemption, as described below. The independent auditor must be prudently selected and have appropriate technical training and proficiency with ERISA and the Code to perform the tasks required by the exemption. The Goldman Sachs Affiliated QPAMs must grant the auditor unconditional access to their business, and the auditor's engagement must specifically require the auditor to test each Goldman Sachs Affiliated QPAM's operational compliance with the Policies and Training.
49. The independent auditor must issue a written audit report (the Audit Report) to Goldman and the Goldman Sachs Affiliated QPAM to which the audit applies, that describes the procedures performed by the auditor in connection with its examination. Further, the Goldman Sachs Affiliated QPAMs must promptly address any identified noncompliance, and must promptly address or prepare a written plan of action to address any determination as to the adequacy of the Policies and Training and the auditor's recommendations, if any, with respect to strengthening the Policies and Training of the respective Goldman Sachs Affiliated QPAM.
50. This proposed exemption further requires that the General Counsel, or one of the three most senior executive officers of the Goldman Sachs Affiliated QPAM to which the Audit Report applies, certify in writing, under penalty of perjury, that the officer has reviewed the Audit Report and the exemption, if granted, and that the Goldman Sachs Affiliated QPAM has addressed, corrected, and remedied (or has an appropriate written plan to address) any identified instance of noncompliance or inadequacy regarding the Policies and Training identified in the Audit Report.
51. With respect to any arrangement, agreement, or contract between a Goldman Sachs Affiliated QPAM and a Covered Plan, this proposal requires the Goldman Sachs Affiliated QPAMs to agree and warrant: (a) To comply with ERISA and the Code, including the standards of prudence and loyalty set forth in section 404 of ERISA; (b) to refrain from engaging in prohibited transactions that are not otherwise exempt; (c) to indemnify and hold harmless the Covered Plan for any actual losses resulting directly from, among other things, the Goldman Sachs Affiliated QPAM's violation of ERISA's fiduciary duties; (d) with narrow exceptions, not to restrict the ability of such Covered Plan to terminate or withdraw from its arrangement with the Goldman Sachs Affiliated QPAM with respect to any investment in a separately managed account or pooled fund subject to ERISA and managed by such QPAM; (e) with narrow exceptions, not to impose any fees, penalties, or charges for such termination or withdrawal; and (f) not to include exculpatory provisions disclaiming or otherwise limiting the liability of the Goldman Sachs Affiliated QPAM for a violation of such agreement's terms.
52. Each Goldman Sachs Affiliated QPAM must provide a notice of its obligations under this exemption to each Covered Plan. Each Goldman Sachs Affiliated QPAM also must provide to each sponsor and beneficial owner of a Covered Plan a
53. This proposed exemption requires Goldman to designate a senior compliance officer (the Compliance Officer) who will be responsible for compliance with the Policies and Training requirements described in this exemption. The Compliance Officer must conduct five reviews, one for each of the five consecutive twelve month periods that comprise the Exemption Period (the Exemption Review), to determine the adequacy and effectiveness of the implementation of the Policies and Training, and issue a written report (the Exemption Report) on the findings.
54. This proposal requires Goldman to impose internal procedures, controls, and protocols on Goldman Sachs Malaysia to reduce the likelihood of any recurrence of conduct that is the subject of the Goldman Sachs Malaysia FCPA Conviction.
55. Section 408(a) of ERISA provides, in part, that the Department may not grant an exemption unless the Department finds that the exemption is administratively feasible, in the interest of affected plans and of their participants and beneficiaries, and protective of the rights of such participants and beneficiaries. These criteria are discussed below.
56.
57.
58. “Protective of.” The Department has tentatively determined that the proposed exemption is protective of the interests of the participants and beneficiaries of affected Covered Plans. As described above, the proposed exemption is subject to a suite of conditions including but not limited to: (a) The development and maintenance of the Policies; (b) the implementation of the Training; (c) a robust series of audits conducted by a qualified independent auditor; (d) the provision of certain agreements and warranties on the part of the Goldman Sachs Affiliated QPAMs; (e) specific notices and disclosures concerning the circumstances necessitating the need for exemptive relief, and the Goldman Sachs Affiliated QPAMS' obligations under this proposed exemption; and (f) the designation of a Compliance Officer with responsibility to ensure compliance with the Policies and Training requirements under this proposed exemption, and the Compliance Officer's completion of an annual Exemption Review and corresponding Exemption Report. Further, no person, including any person referenced in the Department of Justice's Statement of Facts that gave rise to the Plea Agreement, who knew of, or should have known of, or participated in, any misconduct described in the Statement of Facts, by any party, may be involved with various responsibilities required of Goldman by the exemption, unless the person took active documented steps to stop the misconduct.
59. Department's Notes: This proposed five-year exemption provides relief from certain of the restrictions set forth in sections 406 and 407 of ERISA. No relief or waiver of a violation of any other law is provided by the exemption. The relief in this proposed five-year exemption would terminate immediately if, among other things, an entity within the Goldman Sachs Malaysia corporate structure is convicted of any crime covered by Section I(g) of PTE 84-14 (other than the Goldman Sachs Malaysia FCPA Conviction during the effective period of the proposed five-year exemption). While such an entity could apply for a new exemption in that circumstance, the Department is not obligated to grant a requested exemption.
60. When interpreting and implementing this exemption, the Applicant and the Goldman Sachs Affiliated QPAMs should resolve any ambiguities in light of the exemption's protective purposes. To the extent additional clarification is necessary, these persons or entities should contact EBSA's Office of Exemption Determinations, at 202-693-8540.
Notice of the proposed exemption will be provided to all interested persons within seven (7) days of the publication of the notice of proposed five-year exemption in the
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemption, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemption, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
The Department is considering granting a five-year exemption under the authority of section 408(a) of the Act (or ERISA) and section 4975(c)(2) of the Internal Revenue Code (or Code), and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76
If this proposed exemption is granted, the Goldman Sachs Affiliated QPAMs and the Goldman Sachs Related QPAMs (as defined in Section II(d) and (e)) will not be precluded from relying on the exemptive relief provided by Prohibited Transaction Class Exemption 84-14 (PTE 84-14 or the QPAM Exemption)
(a) Other than Tim Leissner, who worked for a non-fiduciary business within a Goldman Sachs Affiliated QPAM, and who had no responsibility for, and exercised no authority in connection with, the management of plan assets, the Goldman Sachs Affiliated QPAMs and Goldman Sachs Related QPAMs (including their officers, directors, agents (other than Goldman Sachs Malaysia), and the employees of the Goldman Sachs Affiliated QPAMs and Goldman Sachs Related QPAMs) did not know of, did not have reason to know of, or did not participate in the criminal conduct of Goldman Sachs Malaysia that is the subject of the Goldman Sachs Malaysia FCPA Conviction. Further, any other party engaged on behalf of the Goldman Sachs Affiliated QPAMs and Goldman Sachs Related QPAMs who had responsibility for, or exercised authority in connection with the management of plan assets did not know of, did not have reason to know of, or participate in the criminal conduct of Goldman Sachs Malaysia that is the subject of the Goldman Sachs Malaysia FCPA Conviction. For purposes of this proposed exemption, “participate in” refers not only to active participation in the criminal conduct that is the subject of the Goldman Sachs Malaysia FCPA Conviction, but also to knowing approval of the criminal conduct, or knowledge of such conduct without taking active steps to prohibit such conduct, including reporting the conduct to such individual's supervisors, and to the Board of Directors;
(b) Other than Tim Leissner, who worked for a non-fiduciary business within a Goldman Sachs Affiliated QPAM, and who had no responsibility for, and exercised no authority in connection with, the management of plan assets, the Goldman Sachs Affiliated QPAMs and the Goldman Sachs Related QPAMs (including their officers, directors, agents (other than Goldman Sachs Malaysia), and employees of such Goldman Sachs Affiliated QPAMs) did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct of Goldman Sachs Malaysia that is the subject of the Goldman Sachs Malaysia FCPA Conviction. Further, any other party engaged on behalf of the Goldman Sachs Affiliated QPAMs and the Goldman Sachs Related QPAMs who had responsibility for, or exercised authority in connection with the management of plan assets did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct of Goldman Sachs Malaysia that is the subject of the Goldman Sachs Malaysia FCPA Conviction;
(c) The Goldman Sachs Affiliated QPAMs do not currently and will not in the future employ or knowingly engage any of the individuals who participated in the criminal conduct of Goldman Sachs Malaysia that is the subject of the Goldman Sachs Malaysia FCPA Conviction;
(d) At all times during the Exemption Period, no Goldman Sachs Affiliated QPAM will use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code and managed by such Goldman Sachs Affiliated QPAM with respect to one or more Covered Plans (as defined in Section II(b)) to enter into any transaction with Goldman Sachs Malaysia or to engage Goldman Sachs Malaysia to provide any service to such investment fund, for a direct or indirect fee borne by such investment fund, regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(e) Any failure of a Goldman Sachs Affiliated QPAM or a Goldman Sachs Related QPAM to satisfy Section I(g) of PTE 84-14 arose solely from the Goldman Sachs Malaysia FCPA Conviction;
(f) A Goldman Sachs Affiliated QPAM or a Goldman Sachs Related QPAM did not exercise authority over the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or section 4975 of the Code (an IRA) in a manner that it knew or should have known would further the criminal conduct that is the subject of the Goldman Sachs Malaysia FCPA Conviction; or cause the Goldman Sachs Affiliated QPAM, Related QPAM or its affiliates to directly or indirectly profit from the criminal conduct that is the subject of the Goldman Sachs Malaysia FCPA Conviction;
(g) Other than with respect to employee benefit plans maintained or sponsored for its own employees or the employees of an affiliate, Goldman Sachs Malaysia will not act as a fiduciary within the meaning of section 3(21)(A)(i) or (iii) of ERISA, or section 4975(e)(3)(A) and (C) of the Code, with respect to ERISA-covered plan and IRA assets; provided, however, that Goldman Sachs Malaysia will not be treated as violating the conditions of this exemption, if granted, solely because they acted as an investment advice fiduciary within the meaning of section 3(21)(A)(ii) of ERISA or section 4975(e)(3)(B) of the Code;
(h)(1) Within four months of the effective date of this five-year exemption, each Goldman Sachs Affiliated QPAM must immediately develop, maintain, implement, and follow written policies and procedures (the Policies). The Policies must require, and must be reasonably designed to ensure that:
(i) The asset management decisions of the Goldman Sachs Affiliated QPAM are conducted independently of Goldman's corporate management and business activities, and the corporate management and business activities of Goldman Sachs Malaysia. This condition does not preclude a Goldman Sachs Affiliated QPAM from receiving publicly available research and other widely available information from Goldman Sachs Malaysia;
(ii) The Goldman Sachs Affiliated QPAM fully complies with ERISA's fiduciary duties, and with ERISA and the Code's prohibited transaction provisions, in each case as applicable with respect to each Covered Plan, and does not knowingly participate in any violation of these duties and provisions with respect to Covered Plans;
(iii) The Goldman Sachs Affiliated QPAM does not knowingly participate in any other person's violation of ERISA
(iv) Any filings or statements made by the Goldman Sachs Affiliated QPAM to regulators, including, but not limited to, the Department, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of or in relation to Covered Plans, are materially accurate and complete, to the best of such QPAM's knowledge at that time;
(v) To the best of its knowledge at that time, the Goldman Sachs Affiliated QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to Covered Plans, or make material misrepresentations or omit material information in its communications with Covered Plans; and
(vi) The Goldman Sachs Affiliated QPAM complies with the terms of this five-year exemption;
(2) Any violation of, or failure to comply with an item in subparagraphs (h)(1)(ii) through (vi), is corrected as soon as reasonably possible upon discovery, or as soon after the QPAM reasonably should have known of the noncompliance (whichever is earlier), and any such violation or compliance failure not so corrected is reported, upon the discovery of such failure to so correct, in writing. This report must be made to the head of compliance and the general counsel (or their functional equivalent) of the relevant Goldman Sachs Affiliated QPAM that engaged in the violation or failure, and the independent auditor responsible for reviewing compliance with the Policies. A Goldman Sachs Affiliated QPAM will not be treated as having failed to develop, implement, maintain, or follow the Policies, provided that it corrects any instance of noncompliance as soon as reasonably possible upon discovery, or as soon as reasonably possible after the Goldman Sachs Affiliated QPAM reasonably should have known of the noncompliance (whichever is earlier), and provided that it adheres to the reporting requirements set forth in this subparagraph (2);
(3) Within six months of the effective date of the exemption, each Goldman Sachs Affiliated QPAM must immediately develop, maintain, adjust (to the extent necessary) and implement a program of training during the Exemption Period, to be conducted at least annually, for all relevant Goldman Sachs Affiliated QPAM asset/portfolio management, trading, legal, compliance, and internal audit personnel. The Training must:
(i) At a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions), ethical conduct, the consequences for not complying with the conditions of this exemption (including any loss of exemptive relief provided herein), and the requirement for prompt reporting of wrongdoing; and
(ii) Be conducted by a professional who has been prudently selected and who has appropriate technical training and proficiency with ERISA and the Code to perform the tasks required by this exemption, if granted;
(i)(1) Each Goldman Sachs Affiliated QPAM submits to three audits conducted by an independent auditor, who has been prudently selected and who has appropriate technical training and proficiency with ERISA and the Code, to evaluate the adequacy of, and each Goldman Sachs Affiliated QPAM's compliance with, the Policies and Training described herein. The audit requirement must be incorporated in the Policies. The first audit must cover the twelve month period that ends on the date that is two years following the date of the Goldman Sachs Malaysia FCPA Conviction, and must be completed within sixty days thereafter. The second audit must cover the twelve month period that ends on the date that is four years following the date of the Goldman Sachs Malaysia FCPA Conviction, and must be within completed sixty days thereafter. The third audit must cover the fifth year covered by this exemption, and must be completed within sixty days thereafter. The corresponding certified Audit Reports must be submitted to the Department no later than 45 days following the completion of the audit.
(2) Within the scope of the audit and to the extent necessary for the auditor, in its sole opinion, to complete its audit and comply with the conditions for relief described herein, and only to the extent such disclosure is not prevented by state or federal statute, or involves communications subject to attorney-client privilege, each Goldman Sachs Affiliated QPAM and, if applicable, Goldman, will grant the auditor unconditional access to its business, including, but not limited to: Its computer systems; business records; transactional data; workplace locations; training materials; and personnel. Such access is limited to information relevant to the auditor's objectives as specified by the terms of this exemption;
(3) The auditor's engagement must specifically require the auditor to determine whether each Goldman Sachs Affiliated QPAM has developed, implemented, maintained, and followed the Policies in accordance with the conditions of this five-year exemption, and has developed and implemented the Training, as required herein;
(4) The auditor's engagement must specifically require the auditor to test each Goldman Sachs Affiliated QPAM's operational compliance with the Policies and Training. In this regard, the auditor must test, for each Goldman Sachs Affiliated QPAM, a sample of such Goldman Sachs Affiliated QPAM's transactions involving Covered Plans, sufficient in size and nature to afford the auditor a reasonable basis to determine such Goldman Sachs Affiliated QPAM's operational compliance with the Policies and Training;
(5) For each audit, on or before the end of the relevant period described in Section I(i)(1) for completing the audit, the auditor must issue a written report (the Audit Report) to Goldman and the Goldman Sachs Affiliated QPAM to which the audit applies that describes the procedures performed by the auditor in connection with its examination. The auditor, at its discretion, may issue a single consolidated Audit Report that covers all the Goldman Sachs Affiliated QPAMs. The Audit Report must include the auditor's specific determinations regarding:
(i) The adequacy of each Goldman Sachs Affiliated QPAM's Policies and Training; each Goldman Sachs Affiliated QPAM's compliance with the Policies and Training; the need, if any, to strengthen such Policies and Training; and any instance of the respective Goldman Sachs Affiliated QPAM's noncompliance with the written Policies and Training described in Section I(h) above. The Goldman Sachs Affiliated QPAM must promptly address any noncompliance. The Goldman Sachs Affiliated QPAM must promptly address or prepare a written plan of action to address any determination as to the adequacy of the Policies and Training and the auditor's recommendations (if any) with respect to strengthening the Policies and Training of the respective Goldman Sachs Affiliated QPAM. Any action taken or the plan of action to be taken by the respective Goldman Sachs Affiliated QPAM must be included in an addendum to the Audit Report (such addendum must be completed prior to the certification described in Section I(i)(7) below). In the event such a plan of action to address the auditor's recommendation regarding the adequacy of the Policies and Training is not completed by the time of submission of the Audit Report, the
(ii) The adequacy of the Exemption Review described in Section I(m);
(6) The auditor must notify the respective Goldman Sachs Affiliated QPAM of any instance of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor, regardless of whether the audit has been completed as of that date;
(7) With respect to each Audit Report, the general counsel or one of the three most senior executive officers of the Goldman Sachs Affiliated QPAM to which the Audit Report applies, must certify in writing, under penalty of perjury, that the officer has reviewed the Audit Report and this exemption, if granted; that, to the best of such officer's knowledge at the time, the Goldman Sachs Affiliated QPAM has addressed, corrected, and remedied any noncompliance and inadequacy or has an appropriate written plan to address any inadequacy regarding the Policies and Training identified in the Audit Report. This certification must also include the signatory's determination that, to the best of the officer's knowledge at the time, the Policies and Training in effect at the time of signing are adequate to ensure compliance with the conditions of this exemption, if granted, and with the applicable provisions of ERISA and the Code. Notwithstanding the above, no person, including any person referenced in the Department of Justice's Statement of Facts that gave rise to the Plea Agreement, who knew of, or should have known of, or participated in, any misconduct described in the Statement of Facts, by any party, may provide the certification required by this exemption, unless the person took active documented steps to stop the misconduct;
(8) The Goldman Sachs Board of Directors is provided a copy of the Audit Report; and a senior executive officer of the Audit Committee established by the Goldman Sachs Board of Directors must review the Audit Report for each Goldman Sachs QPAM and must certify in writing, under penalty of perjury, that such officer has reviewed the Audit Report. Notwithstanding the above, no person, including any person referenced in the Department of Justice's Statement of Facts that gave rise to the Plea Agreement, who knew of, or should have known of, or participated in, any misconduct described in the Statement of Facts, by any party, may provide the certification required by this exemption, unless such person took active documented steps to prohibit the misconduct;
(9) Each Goldman Sachs Affiliated QPAM provides its certified Audit Report, by regular mail to: Office of Exemption Determinations (OED), 200 Constitution Avenue NW, Suite 400, Washington, DC 20210. This delivery must take place no later than 45 days following completion of the Audit Report. The Audit Reports will be made part of the public record regarding this five-year exemption. Furthermore, each Goldman Sachs Affiliated QPAM must make its Audit Reports unconditionally available, electronically or otherwise, for examination upon request by any duly authorized employee or representative of the Department, other relevant regulators, and any fiduciary of a Covered Plan;
(10) Any engagement agreement with an auditor to perform the audit required by this exemption must be submitted to OED no later than two months after the execution of such agreement;
(11) The auditor must provide the Department, upon request, for inspection and review, access to all the workpapers created and used in connection with the audit, provided such access and inspection is otherwise permitted by law; and
(12) Goldman or a Goldman Sachs Affiliated QPAM must notify the Department of a change in the independent auditor no later than two months after the engagement of a substitute or subsequent auditor and must provide an explanation for the substitution or change including a description of any material disputes involving the terminated auditor;
(j) As of the effective date of this five-year exemption, with respect to any arrangement, agreement, or contract between a Goldman Sachs Affiliated QPAM and a Covered Plan, the Goldman Sachs Affiliated QPAM agrees and warrants to Covered Plans:
(1) To comply with ERISA and the Code, as applicable with respect to such Covered Plan; to refrain from engaging in prohibited transactions that are not otherwise exempt (and to promptly correct any inadvertent prohibited transactions); and to comply with the standards of prudence and loyalty set forth in section 404 of ERISA with respect to each such ERISA-covered plan and IRA to the extent that section 404 is applicable;
(2) To indemnify and hold harmless the Covered Plan for any actual losses resulting directly from: A Goldman Sachs Affiliated QPAM's violation of ERISA's fiduciary duties, as applicable, and of the prohibited transaction provisions of ERISA and the Code, as applicable; a breach of contract by the QPAM; or any claim arising out of the failure of such Goldman Sachs Affiliated QPAM to qualify for the exemptive relief provided by PTE 84-14 as a result of a violation of Section I(g) of PTE 84-14, other than the Goldman Sachs Malaysia FCPA Conviction. This condition applies only to actual losses caused by the Goldman Sachs Affiliated QPAM's violations.
(3) Not to require (or otherwise cause) the Covered Plan to waive, limit, or qualify the liability of the Goldman Sachs Affiliated QPAM for violating ERISA or the Code or engaging in prohibited transactions;
(4) Not to restrict the ability of such Covered Plan to terminate or withdraw from its arrangement with the Goldman Sachs Affiliated QPAM with respect to any investment in a separately managed account or pooled fund subject to ERISA and managed by such QPAM, with the exception of reasonable restrictions, appropriately disclosed in advance, that are specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors. In connection with any such arrangements involving investments in pooled funds subject to ERISA entered into after the effective date of this exemption, the adverse consequences must relate to a lack of liquidity of the underlying assets, valuation issues, or regulatory reasons that prevent the fund from promptly redeeming an ERISA-covered plan's or IRA's investment, and such restrictions must be applicable to all such investors and be effective no longer than reasonably necessary to avoid the adverse consequences;
(5) Not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally recognized abusive investment practices or specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors, provided that such fees are applied consistently and in a like manner to all such investors; and
(6) Not to include exculpatory provisions disclaiming or otherwise limiting liability of the Goldman Sachs Affiliated QPAM for a violation of such agreement's terms. To the extent consistent with Section 410 of ERISA, however, this provision does not prohibit disclaimers for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of Goldman and its affiliates, or damages arising from acts outside the control of the Goldman Sachs Affiliated QPAM;
(7) Within four (4) months of the effective date of this five-year exemption, each Goldman Sachs Affiliated QPAM must provide a notice of its obligations under this Section I(j) to each Covered Plan. For Covered Plans that enter into a written asset or investment management agreement with a Goldman Sachs Affiliated QPAM on or after the effective date of this exemption, if granted, the Goldman Sachs Affiliated QPAM must agree to its obligations under this Section I(j) in an updated investment management agreement between the Goldman Sachs Affiliated QPAM and such clients, or other written contractual agreement. Notwithstanding the above, a Goldman Sachs Affiliated QPAM will not violate the condition solely because a Plan or IRA refuses to sign an updated investment management agreement.
(k) Within 60 days of the effective date of this five-year exemption, each Goldman Sachs Affiliated QPAM will provide a
(l) The Goldman Sachs Affiliated QPAMs must comply with each condition of PTE 84-14, as amended, with the sole exception of the violation of Section I(g) of PTE 84-14 that is attributable to the Goldman Sachs Malaysia FCPA Conviction. If, during the Exemption Period, an entity within the Goldman corporate structure is convicted of a crime described in Section I(g) of PTE 84-14 (other than the Goldman Sachs Malaysia FCPA Conviction), relief in this exemption, if granted, would terminate immediately;
(m)(1) Within 60 days of the effective date of this exemption, Goldman must designate a senior compliance officer (the Compliance Officer) who will be responsible for compliance with the Policies and Training requirements described herein. Notwithstanding the above, no person, including any person referenced in the Department of Justice's Statement of Facts that gave rise to the Plea Agreement, who knew of, or should have known of, or participated in, any misconduct described in the Statement of Facts, by any party, may be involved with the designation or responsibilities required by this condition, unless the person took active documented steps to stop the misconduct. The Compliance Officer must conduct a review of each twelve month period of the Exemption Period (the Exemption Review), to determine the adequacy and effectiveness of the implementation of the Policies and Training. With respect to the Compliance Officer, the following conditions must be met:
(i) The Compliance Officer must be a professional who has extensive experience with, and knowledge of, the regulation of financial services and products, including under ERISA and the Code; and
(ii) The Compliance Officer must have a direct reporting line within Goldmans' Audit Committee and a direct reporting line to the highest ranking corporate officer in charge of compliance for the applicable Goldman Sachs Affiliated QPAM;
(2) With respect to the Exemption Review, the following conditions must be met:
(i) The Exemption Review includes a review of the Goldman Sachs Affiliated QPAMs' compliance with and effectiveness of the Policies and Training and of the following: Any compliance matter related to the Policies or Training that was identified by, or reported to, the Compliance Officer or the Audit Committee, during the previous year; the most recent Audit Report issued pursuant to this exemption, if granted; any material change in the relevant business activities of the Goldman Sachs Affiliated QPAMs; and any change to ERISA, the Code, or regulations related to fiduciary duties and the prohibited transaction provisions that may be applicable to the activities of the Goldman Sachs Affiliated QPAMs;
(ii) The Compliance Officer prepares a written report for the Exemption Review (an Exemption Report) that (A) summarizes his or her material activities during the prior year; (B) sets forth any instance of noncompliance discovered during the prior year, and any related corrective action; (C) details any change to the Policies or Training to guard against any similar instance of noncompliance occurring again; and (D) makes recommendations, as necessary, for additional training, procedures, monitoring, or additional and/or changed processes or systems, and management's actions on such recommendations;
(iii) In the Exemption Report, the Compliance Officer must certify in writing that to the best of his or her knowledge at the time: (A) The report is accurate; (B) the Policies and Training are working in a manner which is reasonably designed to ensure that the Policies and Training requirements described herein are met; (C) any known instance of noncompliance during the prior year and any related correction taken to date have been identified in the Exemption Report; and (D) the Goldman Sachs Affiliated QPAMs have complied with the Policies and Training, and/or corrected (or are correcting) any known instances of noncompliance in accordance with Section I(h) above;
(iv) The Exemption Report must be provided to appropriate corporate officers of Goldman and Goldman Sachs Affiliated QPAM to which such report relates, and to the head of compliance and the general counsel (or their
(v) The first Exemption Review, including the Compliance Officer's written Exemption Report, must cover the twelve month period beginning on the date of the Goldman Sachs Malaysia FCPA Conviction. The next four Exemption Reviews and Exemption Reports must each cover a twelve month period that begins on the date that follows the end of a prior Exemption Review coverage period. Each Annual Review, including the Compliance Officer's written Annual Report, must be completed within three months following the end of the period to which it relates;
(n) Goldman imposes its internal procedures, controls, and protocols on Goldman Sachs Malaysia to reduce the likelihood of any recurrence of conduct that is the subject of the Goldman Sachs Malaysia FCPA Conviction;
(o) Goldman complies in all material respects with the requirements imposed by a U.S regulatory authority in connection with the Goldman Sachs Malaysia FCPA Conviction;
(p) Each Goldman Sachs Affiliated QPAM will maintain records necessary to demonstrate that the conditions of this exemption have been met for six years following the date of any transaction for which such Goldman Sachs Affiliated QPAM relies upon the relief in this exemption;
(q) During the Exemption Period, Goldman must: (1) Immediately disclose to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) with the U.S. Department of Justice, entered into by The Goldman Sachs Group, Inc. or any of its affiliates (as defined in Section VI(d) of PTE 84-14) in connection with conduct described in Section I(g) of PTE 84-14 or section 411 of ERISA; and (2) immediately provide the Department any information requested by the Department, as permitted by law, regarding the agreement and/or conduct and allegations that led to the agreement;
(r) Within 60 days of the effective date of the five-year exemption, each Goldman Sachs Affiliated QPAM, in its agreements with, or in other written disclosures provided to Covered Plans, will clearly and prominently inform Covered Plan clients of their right to obtain a copy of the Policies or a description (Summary Policies) which accurately summarizes key components of the Goldman Sachs Affiliated QPAM's written Policies developed in connection with this exemption. If the Policies are thereafter changed, each Covered Plan client must receive a new disclosure within six months following the end of the calendar year during which the Policies were changed.
(s) A Goldman Sachs Affiliated QPAM will not fail to meet the terms of this five-year exemption, if granted, solely because a different Goldman Sachs Affiliated QPAM fails to satisfy a condition for relief described in Sections I(c), (d), (h), (i), (j), (k), (l), (p) or (r); or if the independent auditor described in Section I(i) fails a provision of the exemption other than the requirement described in Section I(i)(11), provided that such failure did not result from any actions or inactions of Goldman.
(a) The term “Goldman Sachs Malaysia FCPA Conviction” means the judgment of conviction against Goldman Sachs Malaysia in connection with a U.S. plea by Goldman Sachs Malaysia to one count of conspiracy to commit offenses against the United States, in violation of Title 18, United States Code, Section 371, that is, to violate the anti-bribery provisions of the Foreign Corrupt Practices Act of 1977, as amended, see Title 15, United States Code, Sections 78dd-1 and 78dd-3.
(b) The term “Covered Plan” means a plan subject to Part IV of Title I of ERISA (an “ERISA-covered plan”) or a plan subject to section 4975 of the Code (an “IRA”), in each case, with respect to which a Goldman Sachs Affiliated QPAM relies on PTE 84-14, or with respect to which a Goldman Sachs Affiliated QPAM (or any Goldman Sachs affiliate) has expressly represented that the manager qualifies as a QPAM or relies on the QPAM class exemption (PTE 84-14). A Covered Plan does not include an ERISA-covered plan or IRA to the extent the Goldman Sachs Affiliated QPAM has expressly disclaimed reliance on QPAM status or PTE 84-14 in entering into a contract, arrangement, or agreement with the ERISA-covered plan or IRA.
(c) The term “Goldman” means The Goldman Sachs Group, Inc.
(d) The term “Goldman Sachs Affiliated QPAMs” means The Goldman Sachs Trust Company, N.A.; Goldman Sachs Bank USA; Goldman Sachs & Co. LLC; Goldman Sachs Asset Management, L.P.; Goldman Sachs Asset Management International; Goldman Sachs Hedge Fund Strategies LLC; GS Investment Strategies, LLC; GSAM Stable Value, LLC; The Ayco Company, L.P.; Aptitude Investment Management LP; Rocaton Investment Advisors, LLC; United Capital Financial Advisers, LLC; and PFE Advisors, Inc., and any future “affiliate” of Goldman (as defined in Part VI(d) of PTE 84-14) that qualifies as a “qualified professional asset manager” (as defined in Section VI(a) of PTE 84-14)
(e) The term “Goldman Sachs Related QPAMs” means any current or future “qualified professional asset manager” (as defined in Section VI(a) of PTE 84-14) that relies on the relief provided by PTE 84-14, and with respect to which Goldman Sachs Malaysia owns a direct or indirect five (5) percent or more interest, but with respect to which Goldman Sachs Malaysia is not an “affiliate” (as defined in section VI(d)(1) of PTE 84-14). The term “Goldman Sachs Related QPAMs” excludes Goldman Sachs Malaysia.
(f) The term “Goldman Sachs Malaysia” means Goldman Sachs (Malaysia) Sdn. Bhd.
(g) The term “Exemption Period” means the five-year period beginning on the date Goldman Sachs Malaysia is sentenced for one count of conspiracy to commit offenses against the United States, in violation of Title 18, United States Code, Section 371, that is, to violate the anti-bribery provisions of the Foreign Corrupt Practices Act of 1977, as amended, see Title 15, United States Code, Sections 78dd-1 and 78dd-3.
(h) The term “Plea Agreement” means the Plea Agreement entered into between the United States of America, by and through the United States Department of Justice, Criminal Division, Fraud Section and Money Laundering and Asset Recovery Section, and the United States Attorney's Office
(i) The term “Conviction Date” means the date that a judgment of conviction against Goldman Sachs (Malaysia) Sdn. Bhd., in Cr. No. 20-438 (MKB), is entered in the United States District Court for the Eastern District of New York.
Employment and Training Administration, Labor.
Notice.
Each year, the Department of Defense issues a Schedule of Remuneration used by states for UCX purposes. States must use the schedule to determine Federal military wages for UCX “first claims” only when the Federal Claims Control Center (FCCC) responds to a request for information indicating that there is no Copy 5 of the Certificate of Release or Discharge from Active Duty (DD Form 214) for an individual under the social security number provided. A response from the FCCC that indicates “no DD214 on file” will prompt the state to start the affidavit process and to use the attached schedule to calculate the Federal military wages for an unemployment insurance or UCX monetary determination. The schedule applies to UCX “first claims” filed beginning with the first day of the first week that begins on or after January 1, 2021. States must continue to use the 2020 schedule (or other appropriate schedule) for UCX “first claims” filed before the effective date of the revised schedule.
Notice.
The Department of Labor's (DOL) Employment and Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “YouthBuild Reporting System.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by March 5, 2021.
A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained free by contacting Stephanie Pena by telephone at (202) 693-3153 (this is not a toll-free number), TTY 1-877-889-5627 (this is not a toll-free number), or by email at
Contact Stephanie Pena by telephone at (202) 693-3153 (this is not a toll-free number) or by email at
DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the Office of Management and Budget (OMB) for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.
The YouthBuild legacy quarterly performance report (ETA-9136 and ETA-9138) includes aggregate and participant-level information on demographic characteristics, types of services received, placements, outcomes, and follow-up status. Specifically, these reports collect data on individuals who receive education, occupational skill training, leadership development services, and other services essential to preparing at-risk youth for in-demand occupations through YouthBuild programs. There are no changes proposed for ETA-9136 and ETA-9138 in this ICR, and ETA expects that these forms will sunset in the next few years as new grantees shift to a new reporting system associated with a different information collection. The Work Site Description and Housing Census (ETA-9143) form collects information about the proposed work sites for low-income or homeless individuals or families where YouthBuild participants receive training and participate in construction skills activities. This form also collects information annually on the number of housing units that grantees build or renovate each year, which allows ETA to demonstrate the annual increase in affordable housing supported by YouthBuild. ETA is proposing changes to the ETA-9143 form based on YouthBuild grantee feedback to clarify the information requested for collection and to provide improved instructions on the form.
The accuracy, reliability, and comparability of program reports submitted by grantees using Federal funds are fundamental elements of good public administration and are necessary tools for maintaining and demonstrating system integrity. The use of a standard set of data elements, definitions, and specifications at all levels of the workforce system helps improve the quality of performance information submitted to ETA. The Workforce Innovation and Opportunity Act (29 U.S.C. 3101) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, (
44 U.S.C. 3506(c)(2)(A).
Weeks of January 4, 11, 18, 25, February 1, 8, 2021.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public.
There are no meetings scheduled for the week of January 4, 2021.
There are no meetings scheduled for the week of January 11, 2021.
There are no meetings scheduled for the week of January 18, 2021.
There are no meetings scheduled for the week of January 25, 2021.
There are no meetings scheduled for the week of February 1, 2021.
There are no meetings scheduled for the week of February 8, 2021.
For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or by email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The January 6, 2021 comment due date applies to Docket Nos. MC2021-54 and CP2021-56; MC2021-55 and CP2021-57; MC2021-56 and CP2021-58; MC2021-57 and CP2021-59; MC2021-58 and CP2021-60.
The January 7, 2021 comment due date applies to Docket Nos. MC2021-59 and CP2021-61; MC2021-60 and CP2021-62; MC2021-61 and CP2021-63; MC2021-62 and CP2021-64; MC2021-63 and CP2021-65.
The January 8, 2021 comment due date applies to Docket Nos. MC2021-64 and CP2021-66; MC2021-65 and CP2021-67; MC2021-66 and CP2021-68.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add an International Priority Airmail, Commercial ePacket, Priority Mail Express International, Priority Mail International & First-Class Package International Service contract to the list of Negotiated Service Agreements in the Competitive Product List in the Mail Classification Schedule.
Christopher C. Meyerson, (202) 268-7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 28, 2020, it filed with the Postal Regulatory Commission a
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add an International Priority Airmail, International Surface Air Lift, Commercial ePacket, Priority Mail Express International, Priority Mail International & First-Class Package International Service contract to the list of Negotiated Service Agreements in the Competitive Product List in the Mail Classification Schedule.
Christopher C. Meyerson, (202) 268-7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on December 28, 2020, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Sections 312.03, 312.04 and 314.00 of the NYSE Listed Company Manual (“Manual”). 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.
Paragraphs (b) and (c) of Sections 312.03 of the Manual require listed companies to obtain shareholder approval prior to certain kinds of equity issuances. The Exchange believes that these requirements can make it unnecessarily difficult for listed companies to raise necessary capital in private placement transactions that are in the interests of the company and its shareholders. Consequently, the Exchange proposes to modify these provisions, bringing its shareholder approval requirements into closer alignment with those of Nasdaq and NYSE American,
Subject to an exception for early stage companies set forth therein, Section 312.03(b) of the Manual requires shareholder approval of certain issuances of common stock, or securities convertible into or exercisable for common stock, to:
• A director, officer or substantial security holder
• a subsidiary, affiliate, or other closely related person of a Related Party; or
• Any company or entity in which a Related Party has a substantial direct or indirect interest.
This prior shareholder approval is required if the number of shares of common stock to be issued, or if the number of shares of common stock into which the securities may be convertible or exercisable, exceeds either 1% of the number of shares of common stock or 1% of the voting power outstanding before the issuance. A limited exception to these shareholder approval requirements permits cash sales relating to no more than 5% of the number of shares of common stock or voting power outstanding that meet a Minimum Price test set forth in the rule (the “Minimum Price”).
Section 312.04(j) defines “Official Closing Price” as follows: “Official Closing Price” of the issuer's common stock means the official closing price on the Exchange as reported to the Consolidated Tape immediately preceding the signing of a binding agreement to issue the securities. For example, if the transaction is signed after the close of the regular session at 4:00 p.m. Eastern Standard Time on a Tuesday, then Tuesday's official closing price is used. If the transaction is signed at any time between the close of the regular session on Monday and the close of the regular session on Tuesday, then Monday's official closing price is used.
The Exchange proposes to amend Section 312.03(b) in several respects.
• The Exchange proposes to modify the class of persons with respect to which an issuance of common stock would require a listed company to seek shareholder approval. Specifically, Section 312.03(b) as amended would require prior shareholder approval for issuances of common stock to directors, officers, and substantial securityholders (“Related Party”) and would no longer require such approval for issuances to such Related Parties' subsidiaries, affiliates or other closely related persons or to entities in which a Related Party has a substantial interest (except where a Related Party has a 5% or greater interest in the counterparty, as described below). In making this change, the Exchange is harmonizing its approach to the regulation of issuances to related parties with that of Nasdaq and NYSE American, as both of those markets focus their shareholder approval requirements solely on the regulation of the Related Parties themselves and not on closely related persons of Related Parties.
• As proposed to be amended, Section 312.03(b) would require shareholder approval of cash sales to Related Parties (as such term is defined in Section 312.03(b)) only if the price is less than the Minimum Price. Accordingly, Section 312.03(b) would no longer require shareholder approval of issuances in a cash sale that meet the Minimum Price requirement to a Related Party where the number of shares of common stock to be issued, or the number of shares of common stock into which the securities may be convertible or exercisable, exceeds either 5% of the number of shares of common stock or 5% of the voting power outstanding before the issuance. However, cash sales to Related Parties that meet the Minimum Price requirement would be subject to the same limitations as cash sales to all other investors under the proposed amended Section 312.03(c), as described below. In addition, cash sales relating to more than 1% of the issuer's common stock or voting power prior to the issuance to a Related Party for prices below the Minimum Price will continue to be subject to shareholder approval under Section 312.03(b) (this requirement is not included in the Nasdaq or NYSE American rules).
• The Exchange proposes to require shareholder approval of any transaction or series of related transactions in which any Related Party has a 5% or greater interest (or such persons collectively have a 10% or greater interest), directly or indirectly, in the company or assets to be acquired or in the consideration to be paid in the transaction and the present or potential issuance of common stock, or securities convertible into common stock, could result in an increase in outstanding common shares of 5% or more. This proposed provision is substantively identical to the only limitation placed specifically on issuances to related parties in the Nasdaq and NYSE American rules. The Exchange would also continue to require shareholder approval of any sale of securities by a listed company to a Related Party in a transaction, or series of transactions, whose proceeds will be used to fund an acquisition of stock or assets of another company where such Related Party has a direct or indirect interest in the company or assets to be acquired or in the consideration to be paid for such acquisition.
• The Exchange proposes to delete from Section 312.03(b) two provisions that will no longer be relevant as they relate to transactions that benefit from exemptions from shareholder approval under current Section 312.03(b), but would be exempt from shareholder approval under the general application of Section 312.03(b) as proposed to be amended. These provisions relate to: (i) Cash sales meeting the Minimum Price test and relating to no more than 5% of the number of shares of common stock or 5% of the voting power outstanding before the issuance to a Related Party where the Related Party involved in the transaction is classified as such solely because such person is a substantial security holder; and (ii) the Early Stage Company exemption, to which the Exchange proposes to remove the reference from Section 312.04 as it will no longer be needed. For the same reason, the Exchange proposes to delete from Section 312.03(b) a sentence that provides that the Early Stage Company exemption is not applicable to a sale of securities by the listed company to any person subject to the provisions of Section 312.03(b) in a transaction, or series of transactions, whose proceeds will be used to fund an acquisition of stock or assets of another company where such person has a direct or indirect interest in the company or assets to be acquired or in the consideration to be paid for such acquisition.
The Exchange notes that Section 312.03(b) would continue to include text stating that any sale of stock to an employee, director or service provider is also subject to the equity compensation rules in Section 303A.08 of the Manual and stating that shareholder approval is required if any of the subparagraphs of Section 312.03 require such approval, notwithstanding that the transaction does not require approval under Section 312.03(b) or one or more of the other subparagraphs.
There would continue to be other significant protections for shareholders with respect to a company's sales of securities. Firstly, Section 314.00 of the Manual in its proposed amended form will provide that transactions with related parties, such as those in which a director, officer or substantial securityholder has an interest, must be reviewed and approved by the company's audit committee or another body of independent directors. Furthermore, there are other significant protections under other paragraphs of Section 312.03, including a requirement of shareholder approval for any sale for less than the Minimum Price relating to 20% or more of the issuer's outstanding
The Exchange believes that the continuation of the important limitations with respect to related party issuances as described above (including the review of such transactions under Section 314.00 and the continued application of the shareholder approval requirements with respect to equity compensation set forth in Section 303A.08) would continue to provide shareholders of NYSE listed companies with protections in relation to issuances to related parties (including Related Parties as such term is defined in Section 312.03(b) In particular, the Exchange notes that the continued shareholder approval requirement for cash sales to Related Parties relating to more than 1% of the company's outstanding common stock that do not meet the Minimum Price requirement is an important protection not provided by the Nasdaq or NYSE American rules. The proposed amendments would make the Exchange's rules for cash sales to related parties substantively identical to those of Nasdaq and NYSE American for issuances that meet the Minimum Price test and the Exchange believes that the long experience of those other markets in applying those substantially identical rules provides evidence that they provide an appropriate level of investor protection.
Section 312.03(c) of the Manual requires shareholder approval of any transaction relating to 20% or more of the company's outstanding common stock or 20% of the voting power outstanding before such issuance, but provides the following exceptions: (1) Any public offering for cash; (2) any bona fide private financing involving a cash sale of the company's securities that comply with the Minimum Price requirement. As set forth in Section 312.04(g), a “bona fide private financing” (“Bona Fide Private Financing”) refers to a sale in which either:
• A registered broker-dealer purchases the securities from the issuer with a view to the private sale of such securities to one or more purchasers; or
• the issuer sells the securities to multiple purchasers, and no one such purchaser, or group of related purchasers, acquires, or has the right to acquire upon exercise or conversion of the securities, more than 5% of the shares of the issuer's common stock or more than five percent of the issuer's voting power before the sale.
The Exchange proposes to replace the reference to “bona fide private financing” in Section 312.03(c) with “other financing (that is not a public offering for cash) in which the company is selling securities for cash.” This change would eliminate the 5% limit for any single purchaser participating in a transaction relying on the exemption.
The Exchange notes that the proposed amendments to Section 312.03(c) do not change the rule as it relates to issuances in non-cash transactions or in cash transactions for a price below the Minimum Price. Instead, in replacing the Bona Fide Private Financing exception with the revised exemption described in the immediately preceding paragraph, the proposed amendment would only remove a limitation in the Bona Fide Private Financing exception that limits the participation of any single investor in a Minimum Price cash sale of more than 5% of the shares or voting power. The Exchange believes that this change is consistent with the protection of investors because the Minimum Price requirement protects against a sale using the exception resulting in economic dilution. Further, the separately applicable requirements of Section 312.03(d) require that the shareholders approve any transaction that would result in a change of control.
The proposed amendments would make the Exchange's rules for cash sales of securities that meet the Minimum Price test substantively identical to those of Nasdaq and NYSE American and the Exchange believes that the long experience of those other markets in applying those substantially identical rules provides evidence that they provide an appropriate level of investor protection.
Section 312.03T was adopted to provide temporary relief from certain of the requirements of Section 312.03 during the COVID-19 pandemic. Section 312.03T was applicable by its terms through June 30, 2020. As that date has passed, the Exchange now proposes to delete Section 312.03T in its entirety, as it is no longer applicable.
In its current form, Section 314.00 provides that related party transactions normally include transactions between officers, directors, and principal shareholders and the company and that each related party transaction is to be reviewed and evaluated by an appropriate group within the listed company involved. The current rule further states that, while the Exchange does not specify who should review related party transactions, the Exchange believes that the Audit Committee or another comparable body might be considered as an appropriate forum for this task.
The Exchange proposes to amend the first paragraph of Section 314.00.
The Exchange will continue to review proxy statements and other SEC filings disclosing related party transactions and where such situations continue year after year, the Exchange will remind the listed company of its obligation, on a continuing basis, to evaluate each related party transaction and determine whether or not it should be permitted to continue.
• For purposes of Section 314.00, the term “related party transaction” refers to transactions required to be disclosed pursuant to Item 404 of Regulation S-K under the Securities Exchange Act. In the case of foreign private issuers, the term “related party transactions” refers to transactions required to be disclosed pursuant to Form 20-F, Item 7.B.
• Related party transactions under the rule as amended must be reviewed by either the company's audit committee or another independent body of the board of directors and the audit committee or such other body may prohibit such a transaction if it determines it to be
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed amendments to Section 312.03(b) are designed to protect the public interest and the interests of investors because there would continue to be other significant protections for shareholders with respect to sales of securities to related parties. Firstly, Section 314.00 of the Manual, as proposed to be amended, will provide that related party transactions, such as those in which a director, officer or substantial securityholder has an interest, are required to be reviewed and approved by the issuer's audit committee or another group of independent directors. Furthermore, there are other significant protections under other paragraphs of Section 312.03, including any sale relating to 20% or more of the issuer's common stock or voting power immediately preceding this issuance for less than the Minimum Price. This requirement means that any economically dilutive transaction would be subject to shareholder approval. The Exchange notes that Section 312.03(c) applies to any transaction or series of related transactions, which provides shareholders with further protection by ensuring that a company cannot avoid the shareholder approval requirement by separating an overall transaction into smaller separate transactions that would not individually require shareholder approval. In addition, any related party sale that gives rise to a change of control will be subject to shareholder approval under Section 312.03(d). The Exchange believes that the continuation of the important limitations with respect to related party issuances as described above (including the review of such transactions under Section 314.00 and the continued application of the shareholder approval requirements with respect to equity compensation set forth in Section 303A.08) would continue to provide shareholders of NYSE listed companies with protections in relation to issuances to related parties (including Related Parties as such term is defined in Section 312.03(b)). In particular, the Exchange notes that the continued shareholder approval requirement for cash sales to Related Parties that relate to more than 1% of the company's outstanding common stock or voting power and do not meet the Minimum Price requirement is an important protection not provided by the Nasdaq or NYSE American rules. The proposed amendments would make the Exchange's rules for cash sales to related parties substantively identical to those of Nasdaq and NYSE American for issuances that meet the Minimum Price test and the Exchange believes that the long experience of those other markets in applying those substantially identical rules provides evidence that they provide an appropriate level of investor protection.
The Exchange believes that the proposed amendments to Section 312.03(c) are also designed to protect the public interest and the interests of investors. The Exchange notes that the proposed amendments to Section 312.03(c) do not change the rule as it relates to issuances in non-cash transactions or to cash transactions for a price below the Minimum Price. The sole purpose of the amendment is to remove an arbitrary limitation in the Bona Fide Private Financing exception that limits the participation of any single investor in a Minimum Price cash sale to 5%. The Exchange believes that this change is consistent with the protection of investors because the Minimum Price requirement provides protection against economic dilution, while the separately applicable requirements of Section 312.03(d) provide that shareholders will have a vote on any transaction that would result in a change of control. The proposed amendments would also make the Exchange's rules for cash sales of securities that meet the Minimum Price test substantively identical to those of Nasdaq and NYSE American and the Exchange believes that the long experience of those other markets in applying those substantially identical rules provides evidence that they provide an appropriate level of investor protection.
The Exchange believes that the proposed amendments to Section 314.00 are also designed to protect the public interest and the interests of investors. By proposing to use the definition of a related party transaction in SEC disclosure rules, the Exchange is providing greater clarity to both issuers and investors as to when the rule must be applied. By proposing to require that transactions subject to the rule must be reviewed and approved by either the audit committee or another body of independent directors, the Exchange is making the requirement more explicit and preventing any listed issuer from giving that role to any group that is not entirely made up of independent directors.
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 changes will conform the shareholder approval requirements of the NYSE to those of Nasdaq and NYSE American in certain respects and therefore enhances competition among listing exchanges. As all listed companies will be subject to the same shareholder approval and related party transaction approval requirements, the proposal does not impose any burden on competition among listed issuers.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing with the Commission a proposed rule change to amend Exchange Rules 4.5 and 4.7, each a part of the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”),
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 purpose of this proposed rule change is to amend Exchange Rules 4.5 and 4.7, each a part of the Exchange's Compliance Rule, to be consistent with the Allocation Exemption. The Commission granted the relief conditioned upon the Participants' adoption of Compliance Rules that implement the alternative approach to reporting allocations to the Central Repository described in the Allocation Exemption (referred to as the “Allocation Alternative”).
Pursuant to Section 6.4(d)(ii)(A) of the CAT NMS Plan, each Participant must, through its Compliance Rule, require its Industry Members to record and report to the Central Repository, if the order is executed, in whole or in part: (1) An Allocation Report;
On August 27, 2020, the Participants submitted to the Commission a request for an exemption from certain allocation reporting requirements set forth in Sections 6.4(d)(ii)(A)(1) and (2) of the CAT NMS Plan (“Exemption Request”).
In addition, under the Allocation Alternative, an “Allocation” would be defined as: (1) The placement of shares/contracts into the same account for which an order was originally placed; or (2) the placement of shares/contracts into an account based on allocation instructions (
To implement the Allocation Alternative, the Participants requested exemptive relief from Section 6.4(d)(ii)(A)(1) of the CAT NMS Plan, to the extent that the provision requires each Participant to, through its Compliance Rule, require its Industry Members that are executing brokers, who do not perform Allocations, to record and report to the Central Repository, if the order is executed, in whole or in part, an Allocation Report. Under the Allocation Alternative, when an Industry Member other than an executing broker (
The Participants stated that granting exemptive relief from submitting Allocation Reports for executing brokers who do not perform an Allocation, and requiring the Industry Member other than the executing broker that is performing the Allocation to submit such Allocation Reports, is consistent with the basic approach taken by the Commission in adopting Rule 613 under the Exchange Act. Specifically, the Participants stated that they believe that the Commission sought to require each broker-dealer and exchange that touches an order to record the required data with respect to actions it takes on the order.
To implement the Allocation Alternative, the Participants also requested exemptive relief from Section 6.4(d)(ii)(A)(2) of the CAT NMS Plan, to the extent that the provision requires each Participant to, through its Compliance Rule, require its Industry Members to record and report to the Central Repository, if an order is executed, in whole or in part, the SRO-Assigned Market Participant Identifier of the prime broker, if applicable. Currently, under the CAT NMS Plan, an Industry Member is required to report the SRO-Assigned Market Participant Identifier of the clearing broker or prime broker in connection with the execution of an order, and such information would be part of the order's lifecycle, rather than in an Allocation Report that is not linked to the order's lifecycle.
The Participants stated that associating a prime broker with a specific execution, as is currently required by the CAT NMS Plan, does not reflect how the allocation process works in practice as allocations to a prime broker are done post-trade and are performed by the clearing broker of the executing broker. The Participants also stated that with the implementation of the Allocation Alternative, it would be duplicative for the executing broker to separately identify the prime broker for allocation purposes.
The Participants stated that if a particular customer only has one prime broker, the identity of the prime broker can be obtained from the customer and account information through the DVP accounts for that customer that contain the identity of the prime broker. The Participants further stated that Allocation Reports related to those executions would reflect that shares/contracts were allocated to the single
In cases where a customer maintains relationships with multiple prime brokers, the Participants asserted that the executing broker will not have information at the time of the trade as to which particular prime broker may be allocated all or part of the execution. Under the Allocation Alternative, the executing broker (if self-clearing) or its clearing firm would report individual Allocation Reports identifying the specific prime broker to which shares/contracts were allocated and then each prime broker would itself report an Allocation Report identifying the specific customer accounts where the shares/contracts were ultimately allocated. To determine the prime broker for a customer, a regulatory user would query the customer and account database using the customer's CCID to obtain all DVP accounts for the CCID at broker-dealers. The Participants state that when a customer maintains relationships with multiple prime brokers, the customer typically has a separate DVP account with each prime broker, and the identities of those prime brokers can be obtained from the customer and account information.
In the Exemption Request, the Participants included certain additional conditions for the requested relief. Currently, the definition of Allocation Report in the CAT NMS Plan only refers to shares. To implement the Allocation Alternative, the Participants proposed to require that all required elements of Allocation Reports apply to both shares and contracts, as applicable, for all Eligible Securities. Specifically, Participants would require the reporting of the following in each Allocation Report: (1) The FDID for the account receiving the allocation, including subaccounts; (2) the security that has been allocated; (3) the identifier of the firm reporting the allocation; (3) the price per share/contracts of shares/contracts allocated; (4) the side of shares/contracts allocated; (4) the number of shares/contracts allocated; and (5) the time of the allocation.
Furthermore, to implement the Allocation Alternative, the Participants proposed to require the following information on all Allocation Reports: (1) Allocation ID, which is the internal allocation identifier assigned to the allocation event by the Industry Member; (2) trade date; (3) settlement date; (4) IB/correspondent CRD Number (if applicable); (5) FDID of new order(s) (if available in the booking system);
On October 29, 2020, the Commission granted the exemptive relief requested in the Exemption Request. The Commission granted the relief conditioned upon the adoption of Compliance Rules that implement the reporting requirements of the Allocation Alternative. Accordingly, the Exchange proposes the following changes to its Compliance Rule to implement the reporting requirements of the Allocation Alternative.
The Exchange proposes to add a definition of “Allocation” as new paragraph (c) to Rule 4.5.
The Exchange proposes to amend the definition of “Allocation Report” set forth in Exchange Rule 4.5(c) to reflect the requirements of the Allocation Exemption. Exchange Rule 4.5(c) defines the term “Allocation Report” to mean:
The Exchange proposes to amend this definition in two ways: (1) Applying the requirements for Allocation Reports to contracts in addition to shares; and (2) requiring the reporting of additional elements for the Allocation Report.
The requirements for Allocation Reports apply only to shares, as the definition of “Allocation Report” in Rule 4.5(c) refers to shares, not contracts. In the Allocation Exemption, the Commission stated that applying the requirements for Allocation Reports to contracts in addition to shares is appropriate because CAT reporting requirements apply to both options and equities. Accordingly, the SEC stated that the Participants would be required to modify their Compliance Rules such that all required elements of Allocation Reports apply to both shares and contracts, as applicable, for all Eligible Securities. Therefore, the Exchange proposes to amend Rule 4.5(c) (to be renumbered as Rule 4.5(d)) to apply to contracts, as well as shares. Specifically, the Exchange proposes to add references to contracts to the definition of “Allocation Report” to the following phrases: “the Firm Designated ID for
The Commission also conditioned the Allocation Exemption on the Participants amending their Compliance Rules to require the ten additional elements in Allocation Reports described above. Accordingly, the Exchange proposes to require these additional elements in Allocation Reports. Specifically, the Exchange proposes to amend the definition of “Allocation Report” in Rule 4.5(c) (to be renumbered as Rule 4.5(d)) to include the following elements, in addition to those elements currently required under the CAT NMS Plan:
The Commission granted the Participants an exemption from the requirement that the Participants, through their Compliance Rule, require executing brokers that do not perform Allocations to submit Allocation Reports. The Commission stated that it understands that executing brokers that are not self-clearing do not perform allocations themselves, and such allocations are handled by prime and/or clearing brokers, and these executing brokers therefore do not possess the requisite information to provide Allocation Reports. Accordingly, the Exchange proposes to eliminate Rule 4.7(a)(2)(A)(i),
The Allocation Exemption requires the Participants to amend their Compliance Rules to require Industry Members to provide Allocation Reports to the Central Repository any time they perform Allocations to a client account, whether or not the Industry Member was the executing broker for the trades. Accordingly, the Commission conditioned the Allocation Exemption on the Participants adopting Compliance Rules that require prime and/or clearing brokers to submit Allocation Reports when such brokers perform allocations, in addition to requiring executing brokers that perform allocations to submit Allocation Reports. The Commission determined that such exemptive relief would improve efficiency and reduce the costs and burdens of reporting allocations for Industry Members because the reporting obligation would belong to the Industry Member with the requisite information, and executing brokers that do not have the information required on an Allocation Report would not have to develop the infrastructure and processes required to obtain, store and report the information. The Commission stated that this exemptive relief should not reduce the regulatory utility of the CAT because an Allocation Report would still be submitted for each executed trade allocated to a client account, which in certain circumstances could still result in multiple Allocation Reports,
In accordance with the Allocation Exemption, the Exchange proposes to add proposed Rule 4.7(a)(2)(F) to the Compliance Rule. Proposed Rule 4.7(a)(2)(F) would require Industry Members to record and report to the Central Repository “an Allocation Report any time the Industry Member performs an Allocation to a Client Account, whether or not the Industry Member was the executing broker for the trade.”
In the Allocation Exemption, the Commission also exempted the Participants from the requirement that they amend their Compliance Rules to require Industry Members to report Allocations for accounts other than client accounts. The Commission believes that allocations to client accounts, and not allocations to proprietary accounts or events such as step-outs and correspondent flips, provide regulators the necessary information to detect abuses in the allocation process because it would provide regulators with detailed information regarding the fulfillment of orders submitted by clients, while reducing reporting burdens on broker-dealers. For example, Allocation Reports would be required for allocations to registered investment advisor and money manager accounts. The Commission further believes that the proposed approach should facilitate regulators' ability to distinguish Allocation Reports relating to allocations to client accounts from other Allocation Reports because Allocations to accounts other than client accounts would have to be identified as such. This approach could reduce the time CAT Reporters expend to comply with CAT reporting requirements and lower costs by allowing broker dealers to use existing business practices.
To clarify that an Industry Member must report an Allocation Report solely for Allocations to a client account, proposed Rule 4.7(a)(2)(F) specifically references “Client Accounts,” as discussed above. In addition, the Exchange proposes to add a definition of “Client Account” as proposed Rule 4.5(l). Proposed Rule 4.5(l) would define a “Client Account” to mean “for the purposes of an Allocation and Allocation Report, any account or subaccount that is not owned or controlled by the Industry Member.”
The Exchange also proposes to amend Rule 4.7(a)(2)(A)(ii) to eliminate the requirement for executing brokers to record and report the SRO-Assigned Market Participant Identifier of the prime broker. Rule 4.7(a)(2)(A)(ii) states that each Industry Member is required to record and report to the Central Repository, if the order is executed, in whole or in part, the “SRO-Assigned Market Participant Identifier of the clearing broker or prime broker, if
As the Commission noted in the Allocation Exemption, exempting the Participants from the requirement that they, through their Compliance Rules, require executing brokers to provide the SRO-Assigned Market Participant Identifier of the prime broker is appropriate because, as stated by the Participants, allocations are done on a post-trade basis and the executing broker will not have the requisite information at the time of the trade. Because an executing broker, in certain circumstances, does not have this information at the time of the trade, this relief relieves executing brokers of the burdens and costs of developing infrastructure and processes to obtain this information in order to meet the contemporaneous reporting requirements of the CAT NMS Plan.
As the Commission noted in the Allocation Exemption, although executing brokers would no longer be required to provide the prime broker information, regulators will still be able to determine the prime broker(s) associated with orders through querying the customer and account information database. If an executing broker has only one prime broker, the identity of the prime broker can be obtained from the customer and account information associated with the executing broker. For customers with multiple prime brokers, the identity of the prime brokers can be obtained from the customer and account information which will list the prime broker, if there is one, that is associated with each account.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)(5) of the Act,
The Exchange believes that this proposal is consistent with the Act because it is consistent with, and implements, the Allocation Exemption, and is designed to assist the Exchange and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.”
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule changes are consistent with the Allocation Exemption, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. The Exchange also notes that the proposed rule changes will apply equally to all Industry Members. In addition, all national securities exchanges and FINRA are proposing this amendment to their Compliance Rules. Therefore, this is not a competitive rule filing, and, does not impose a burden on competition.
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
At any time within 60 days of the filing of this 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.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of December 2020. A copy of each application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
The Commission:
Shawn Davis, Assistant Director, at (202) 551-6413 or Chief Counsel's Office at (202) 551-6821; SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE, Washington, DC 20549-8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
2:00 p.m. on Wednesday, January 6, 2021.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
On November 5, 2020, Cboe BYX Exchange, Inc. (“CboeBYX”), Cboe BZX Exchange, Inc. (“CboeBZX”), Cboe EDGA Exchange, Inc. (“CboeEDGA”) and Cboe EDGX Exchange, Inc. (“CboeEDGX,” and collectively, the “Exchanges”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Outside of regular trading hours, the Exchanges' operate extra-hours sessions from 7:00 a.m. to 8:00 a.m. Eastern Time (“ET”),
The Exchanges have proposed to reconfigure their systems such that, when NYSE has halted, suspended, or paused trading in one of its listed securities and subsequently lifts the halt, suspension, or pause during an extra-hours session, the Exchanges would re-open their respective markets in that security automatically when those two conditions are present, thereby eliminating the need for manual intervention. The Exchanges are not proposing any changes to the conditions for re-opening their markets, only the mechanism for doing so. The new automated procedures would automatically resume trading after one second has passed following the Exchanges' receipt of the first NBBO following the resumption of trading after the halt, suspension, or pause. This change would allow each Exchange to avoid the need for its staff to monitor for resumption messages, and would allow members' orders to be automatically reflected in the market, while continuing to ensure that the Exchanges' re-opening is tied to the existence of a market in the security on one or more national securities exchanges.
If there is no available NBBO in the security, the proposed automated procedures would not resume trading on the Exchanges. However, each Exchange would retain the ability to manually resume trading at its discretion pursuant to an existing rule.
After careful review, the Commission finds that the proposed rule changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
As noted above, the Exchanges have proposed to reconfigure their systems such that, when NYSE has halted, suspended, or paused trading in one of its listed securities and subsequently
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to reflect a change in the time of calculation and publication of the Wilshire Gold Index applicable to shares of the Wilshire wShares Enhanced Gold Trust (“Trust”). Shares of the Trust have been approved by the Commission for listing and trading on the Exchange under NYSE Arca Rule 8.201-E.
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 Commission has approved a proposed rule change relating to listing and trading on the Exchange of shares (“Shares”) of the Wilshire wShares Enhanced Gold Trust (“Trust”) for listing and trading on the Exchange under NYSE Arca Rule 8.201-E (“Commodity-Based Trust Shares”).
According to the Registration Statement and the Prior Order, the investment objective of the Trust is for the Shares to closely reflect the Index, which will be published by Solactive AG (the Index Calculation Agent), less the Trust's liabilities and expenses. The Trust will have no assets other than (a) physical gold bullion (“Physical Gold”) in proportions that seek to closely replicate the Index and (b) cash.
The Prior Order stated that the Index value using the London Bullion Market Association (“LBMA”) Gold Price PM
The Exchange believes that modifying the representation regarding when the Index value using the LBMA Gold Price PM is published to reflect that such Index value would be published each business day by approximately 7:00 p.m. E.T. would have no impact on the Trust's shareholders. During the proposed two hour extension from approximately 5:00 p.m. E.T. to approximately 7:00 p.m. E.T., the value of the Trust's holdings and net asset value (“NAV”) will be available, which will provide investors and authorized participants (“APs”) with a basis to determine whether Shares during the
The proposed two-hour extension of the calculation and publication of the Index value will not impact investors trading Shares during the Exchange's Early Trading Session (normally 4:00 a.m. to 9:30 a.m. E.T.) or the Exchange's Core Trading Session (normally 9:30 a.m. to 4:00 p.m. E.T.) as such calculation and publication time will, consistent with the Prior Order, occur after such trading sessions. In addition, investors trading Shares during the Exchange's Late Trading Session (normally 4:00 p.m. to 8:00 p.m. E.T.) will not be impacted by such change, as the Trust's NAV will be determined as of 4:00 p.m., E.T. (or as soon thereafter as practicable) and then disseminated via market data feeds as well as posted on the Trust's website. Like the Index, the value of the Physical Gold held by the Trust for purposes of determining the Trust's NAV is determined by reference to the LBMA Gold Price PM for that day. Therefore, whether the Index value is calculated and published at 5:00 p.m. E.T. or 7:00 p.m. E.T., investors trading in the Exchange's Late Trading Session will trade based on the Trust's NAV determined as of 4:00 p.m. E.T. (or as soon thereafter as practicable).
The Exchange notes that the Prior Order stated that the Index value is calculated and published each business day at approximately 5:00 p.m. E.T. on the Trust's website.
The proposed change would not affect the Trust's requirement to provide investors with an updated Index value each day and would not alter any information that is provided to investors during the trading day.
The Sponsor represents that the proposed change described above will not impact investors. Except for the change noted above, all other representations made in the Prior Order remain unchanged.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. The Exchange believes that the proposed change to the time of Index value calculation and publication would have no impact on the Trust's shareholders. The Trust's ability to pursue its investment objective will not be impacted by the proposed change to provide for a later calculation and publication of an updated Index value for a particular business day.
The proposed change would provide investors with an updated Index value each day and would not alter any information that is provided to investors during the trading day. Like the approximately 5:00 p.m., E.T. time frame approved in the Prior Order, the Index would be calculated and published after the close of the Exchange's Core Trading Session and during the Exchange's Late Trading
The Sponsor represents that the proposed change described above will not impact investors. Except for the change noted above, all other representations made in the Prior Order remain unchanged.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act and will enhance competition among issues of gold-based Commodity-Based Trust Shares.
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 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.
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 proposed rule change
In its filing with the Commission, the clearing agency 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 clearing agency 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 rule change is to amend the Fee Guide to add a fee for the new ClaimConnect service at DTC.
ClaimConnect, an optional DTC service, enables Participants to bilaterally match and settle cash claim transactions at DTC.
With this proposed rule change, DTC is establishing a ClaimConnect matching fee of a $1.75 per side, per-matched claim, whether or not the claim is Affirmed or Auto-matched. In other words, both parties to a matched claim will be charged $1.75, such that DTC would collect $3.50 for each matched claim.
This per-side matching fee for claims processing will be new for Participants that use Asset Services products. In choosing this fee and fee structure, DTC considered various factors. First, DTC followed its pricing policy of setting fees at cost plus a low-margin markup. The “low-margin markup” is applied to recover development costs and operating expenses, and to accumulate capital sufficient to meet regulatory and economic requirements. In consideration of that policy, the aggregate amount of $3.50 per-matched claim will help facilitate a four-year return on investment for DTC's creation of ClaimConnect and help cover continued operating expenses for the service. Second, the per-side structure was chosen to allocate the cost evenly between a claim's two counterparties. Third, in order to align charges for the ClaimConnect service with Participants' actual usage of the service, the fee was structured as a per-usage fee (
To effectuate the ClaimConnect fee, the Corporate Action subsection of the Custody and Securities Processing section of the Fee Guide will be updated to include a ClaimConnect Matching Fee of $1.75, per each claim side after matching.
The ClaimConnect fee will be added to the 2021 Fee Guide and charged beginning January 1, 2021.
Section 17A(b)(3)(D) of the Act requires that DTC's Rules provide for the equitable allocation of reasonable dues, fees, and other charges among its Participants.
As described above, the ClaimConnect service is an optional service that was
DTC believes the fee is reasonable because, as described above, (i) it is consistent with DTC's cost plus low-margin markup pricing policy; (ii) it is expected to produce a four-year return on DTC's investment in developing ClaimConnect, compared to a higher fee that would produce a quicker return, while helping cover continued operating expenses for the service; (iii) it is structured so that both parties to a claim pay the same amount; (iv) it is structured to align charges for the service with actual usage of the service; and (v) it was set in consideration of a similar, existing fee (
DTC does not believe that the ClaimConnect fee will have any impact on competition.
As described above, DTC believes that the proposed fee is equitable, reasonable, and on par with fees for other DTC services (
Written comments relating to this proposed rule change have not been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
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.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 15, 2020, Cboe BZX Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“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”),
LTSE proposes a rule change to amend the Rule Series 11.600, the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”)
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Rule Series 11.600 to be consistent with the Allocation Exemption. The Commission granted the relief conditioned upon the Participants' adoption of Compliance Rules that implement the alternative approach to reporting allocations to the Central Repository described in the Allocation Exemption (referred to as the “Allocation Alternative”).
Pursuant to Section 6.4(d)(ii)(A) of the CAT NMS Plan, each Participant must, through its Compliance Rule, require its Industry Members to record and report to the Central Repository, if the order is executed, in whole or in part: (1) An Allocation Report;
On August 27, 2020, the Participants submitted to the Commission a request for an exemption from certain allocation reporting requirements set forth in Sections 6.4(d)(ii)(A)(1) and (2) of the CAT NMS Plan (“Exemption Request”).
In addition, under the Allocation Alternative, an “Allocation” would be defined as: (1) The placement of shares/contracts into the same account for which an order was originally placed; or (2) the placement of shares/contracts into an account based on allocation
To implement the Allocation Alternative, the Participants requested exemptive relief from Section 6.4(d)(ii)(A)(1) of the CAT NMS Plan, to the extent that the provision requires each Participant to, through its Compliance Rule, require its Industry Members that are executing brokers, who do not perform Allocations, to record and report to the Central Repository, if the order is executed, in whole or in part, an Allocation Report. Under the Allocation Alternative, when an Industry Member other than an executing broker (
The Participants stated that granting exemptive relief from submitting Allocation Reports for executing brokers who do not perform an Allocation, and requiring the Industry Member other than the executing broker that is performing the Allocation to submit such Allocation Reports, is consistent with the basic approach taken by the Commission in adopting Rule 613 under the Act. Specifically, the Participants stated that they believe that the Commission sought to require each broker-dealer and exchange that touches an order to record the required data with respect to actions it takes on the order.
To implement the Allocation Alternative, the Participants also requested exemptive relief from Section 6.4(d)(ii)(A)(2) of the CAT NMS Plan, to the extent that the provision requires each Participant to, through its Compliance Rule, require its Industry Members to record and report to the Central Repository, if an order is executed, in whole or in part, the SRO-Assigned Market Participant Identifier of the prime broker, if applicable. Currently, under the CAT NMS Plan, an Industry Member is required to report the SRO-Assigned Market Participant Identifier of the clearing broker or prime broker in connection with the execution of an order, and such information would be part of the order's lifecycle, rather than in an Allocation Report that is not linked to the order's lifecycle.
The Participants stated that associating a prime broker with a specific execution, as is currently required by the CAT NMS Plan, does not reflect how the allocation process works in practice as allocations to a prime broker are done post-trade and are performed by the clearing broker of the executing broker. The Participants also stated that with the implementation of the Allocation Alternative, it would be duplicative for the executing broker to separately identify the prime broker for allocation purposes.
The Participants stated that if a particular customer only has one prime broker, the identity of the prime broker can be obtained from the customer and account information through the DVP accounts for that customer that contain the identity of the prime broker. The Participants further stated that Allocation Reports related to those executions would reflect that shares/contracts were allocated to the single prime broker. The Participants believe that there is no loss of information through the implementation of the Allocation Alternative compared to what is required in the CAT NMS Plan and that this approach does not decrease the regulatory utility of the CAT for single prime broker circumstances.
In cases where a customer maintains relationships with multiple prime brokers, the Participants asserted that the executing broker will not have information at the time of the trade as to which particular prime broker may be allocated all or part of the execution. Under the Allocation Alternative, the executing broker (if self-clearing) or its clearing firm would report individual Allocation Reports identifying the specific prime broker to which shares/contracts were allocated and then each prime broker would itself report an Allocation Report identifying the specific customer accounts where the shares/contracts were ultimately allocated. To determine the prime broker for a customer, a regulatory user would query the customer and account database using the customer's CCID to obtain all DVP accounts for the CCID at broker-dealers. The Participants state that when a customer maintains relationships with multiple prime brokers, the customer typically has a separate DVP account with each prime broker, and the identities of those prime brokers can be obtained from the customer and account information.
In the Exemption Request, the Participants included certain additional conditions for the requested relief. Currently, the definition of Allocation Report in the CAT NMS Plan only refers to shares. To implement the Allocation Alternative, the Participants proposed to require that all required elements of Allocation Reports apply to both shares and contracts, as applicable, for all Eligible Securities. Specifically, Participants would require the reporting of the following in each Allocation Report: (1) The FDID for the account receiving the allocation, including subaccounts; (2) the security that has been allocated; (3) the identifier of the firm reporting the allocation; (3) the price per share/contracts of shares/contracts allocated; (4) the side of shares/contracts allocated; (4) the number of shares/contracts allocated; and (5) the time of the allocation.
Furthermore, to implement the Allocation Alternative, the Participants proposed to require the following information on all Allocation Reports: (1) Allocation ID, which is the internal allocation identifier assigned to the allocation event by the Industry Member; (2) trade date; (3) settlement date; (4) IB/correspondent CRD Number (if applicable); (5) FDID of new order(s) (if available in the booking system);
On October 29, 2020, the Commission granted the exemptive relief requested in the Exemption Request. The Commission granted the relief conditioned upon the adoption of Compliance Rules that implement the reporting requirements of the Allocation Alternative. Accordingly, the Exchange proposes the following changes to its Compliance Rule to implement the reporting requirements of the Allocation Alternative.
The Exchange proposes to add a definition of “Allocation” as new paragraph (c) to Rule 11.610.
The Exchange proposes to amend the definition of “Allocation Report” set forth in Exchange Rule 11.610(c) to reflect the requirements of the Allocation Exemption. Exchange Rule 11.610(c) defines the term “Allocation Report” to mean:
The Exchange proposes to amend this definition in two ways: (1) Applying the requirements for Allocation Reports to contracts in addition to shares; and (2) requiring the reporting of additional elements for the Allocation Report.
The requirements for Allocation Reports apply only to shares, as the definition of “Allocation Report” in Rule 11.610(c) refers to shares, not contracts. In the Allocation Exemption, the Commission stated that applying the requirements for Allocation Reports to contracts in addition to shares is appropriate because CAT reporting requirements apply to both options and equities. Accordingly, the SEC stated that the Participants would be required to modify their Compliance Rules such that all required elements of Allocation Reports apply to both shares and contracts, as applicable, for all Eligible Securities. Therefore, the Exchange proposes to amend Rule 11.610(c) (to be renumbered as Rule 11.610(d)) to apply to contracts, as well as shares. Specifically, the Exchange proposes to add references to contracts to the definition of “Allocation Report” to the following phrases: “the Firm Designated ID for any account(s), including subaccount(s), to which executed shares/contracts are allocated,” “the price per share/contract of shares/contracts allocated,” “the side of shares/contracts allocated,” and “the number of shares/contracts allocated to each account.”
The Commission also conditioned the Allocation Exemption on the Participants amending their Compliance Rules to require the ten additional elements in Allocation Reports described above. Accordingly, the Exchange proposes to require these additional elements in Allocation Reports. Specifically, the Exchange proposes to amend the definition of “Allocation Report” in Rule 11.610(c) (to be renumbered as Rule 11.610(d)) to include the following elements, in addition to those elements currently required under the CAT NMS Plan:
The Commission granted the Participants an exemption from the requirement that the Participants, through their Compliance Rule, require executing brokers that do not perform Allocations to submit Allocation Reports. The Commission stated that it understands that executing brokers that are not self-clearing do not perform allocations themselves, and such allocations are handled by prime and/or clearing brokers, and these executing brokers therefore do not possess the requisite information to provide Allocation Reports. Accordingly, the Exchange proposes to eliminate Rule 11.630(a)(2)(A)(i),
The Allocation Exemption requires the Participants to amend their Compliance Rules to require Industry Members to provide Allocation Reports to the Central Repository any time they perform Allocations to a client account, whether or not the Industry Member was the executing broker for the trades. Accordingly, the Commission conditioned the Allocation Exemption on the Participants adopting Compliance Rules that require prime and/or clearing brokers to submit Allocation Reports when such brokers perform allocations, in addition to requiring executing brokers that perform allocations to submit Allocation Reports. The Commission determined that such exemptive relief would improve efficiency and reduce the costs and burdens of reporting allocations for Industry Members because the reporting obligation would belong to the Industry Member with the requisite information, and executing brokers that do not have the information required on an Allocation Report would not have to develop the infrastructure and processes required to obtain, store and report the information. The Commission stated that this exemptive relief should not reduce the regulatory utility of the CAT because an Allocation Report would still be submitted for each executed trade allocated to a client account, which in certain circumstances could still result in multiple Allocation Reports,
In accordance with the Allocation Exemption, the Exchange proposes to add proposed Rule 11.630(a)(2)(F) to the Compliance Rule. Proposed Rule 11.630(a)(2)(F) would require Industry Members to record and report to the Central Repository “an Allocation Report any time the Industry Member performs an Allocation to a Client Account, whether or not the Industry Member was the executing broker for the trade.”
In the Allocation Exemption, the Commission also exempted the Participants from the requirement that they amend their Compliance Rules to require Industry Members to report Allocations for accounts other than client accounts. The Commission believes that allocations to client accounts, and not allocations to proprietary accounts or events such as step-outs and correspondent flips, provide regulators the necessary information to detect abuses in the allocation process because it would provide regulators with detailed information regarding the fulfillment of orders submitted by clients, while reducing reporting burdens on broker-dealers. For example, Allocation Reports would be required for allocations to registered investment advisor and money manager accounts. The Commission further believes that the proposed approach should facilitate regulators' ability to distinguish Allocation Reports relating to allocations to client accounts from other Allocation Reports because Allocations to accounts other than client accounts would have to be identified as such. This approach could reduce the time CAT Reporters expend to comply with CAT reporting requirements and lower costs by allowing broker-dealers to use existing business practices.
To clarify that an Industry Member must report an Allocation Report solely for Allocations to a client account, proposed Rule 11.630(a)(2)(F) specifically references “Client Accounts,” as discussed above. In addition, the Exchange proposes to add a definition of “Client Account” as proposed Rule 11.610(l). Proposed Rule 11.610(l) would define a “Client Account” to mean “for the purposes of an Allocation and Allocation Report, any account or subaccount that is not owned or controlled by the Industry Member.”
The Exchange also proposes to amend Rule 11.630(a)(2)(A)(ii) to eliminate the requirement for executing brokers to record and report the SRO-Assigned Market Participant Identifier of the prime broker. Rule 11.630(a)(2)(A)(ii) states that each Industry Member is required to record and report to the Central Repository, if the order is executed, in whole or in part, the “SRO-Assigned Market Participant Identifier of the clearing broker or prime broker, if applicable.” The Exchange proposes to delete the phrase “or prime broker” from this provision. Accordingly, each Industry Member that is an executing broker would no longer be required to report the SRO-Assigned Market Participant Identifier of the prime broker.
As the Commission noted in the Allocation Exemption, exempting the Participants from the requirement that they, through their Compliance Rules, require executing brokers to provide the SRO-Assigned Market Participant Identifier of the prime broker is appropriate because, as stated by the Participants, allocations are done on a post-trade basis and the executing broker will not have the requisite information at the time of the trade. Because an executing broker, in certain circumstances, does not have this information at the time of the trade, this relief relieves executing brokers of the burdens and costs of developing infrastructure and processes to obtain this information in order to meet the contemporaneous reporting requirements of the CAT NMS Plan.
As the Commission noted in the Allocation Exemption, although executing brokers would no longer be required to provide the prime broker information, regulators will still be able to determine the prime broker(s) associated with orders through querying the customer and account information
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6(b)(5) of the Act,
The Exchange believes that this proposal is consistent with the Act because it is consistent with, and implements, the Allocation Exemption, and is designed to assist the Exchange and its Industry Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Plan “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.”
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule changes are consistent with the Allocation Exemption, and are designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. The Exchange also notes that the proposed rule changes will apply equally to all Industry Members. In addition, all national securities exchanges and FINRA are proposing this amendment to their Compliance Rules. Therefore, this is not a competitive rule filing and does not impose a burden on competition.
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the proposed amendments is for ICE Clear Europe to modify its CDS Procedures (the “CDS Procedures” or the “Procedures”) to update the requirements for a Clearing Member to be approved to be a CDS Committee-Eligible Clearing Member for purposes of the CDS Default Committee, as well as certain other updates and clarifications, and to modify its CDS Default Management Policy (the “CDS Default Management Policy” or “Policy”) to make corresponding updates to the requirements for a Clearing Member to be eligible to serve on the CDS Default Committee, as well as to provide more detail with respect to review and testing of its default procedures, remove appendices and make certain other updates and clarifications to be consistent with other ICE Clear Europe policies.
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.
ICE Clear Europe is proposing to amend its CDS Procedures as to the following: (i) The requirements for a Clearing Member to be approved to be a CDS Committee-Eligible Clearing Member, (ii) the courses of action for the Clearing House if a CDS Committee-Eligible Clearing Member is unable to take part in the CDS Default Committee for the Relevant CDS Default Committee Period for which it is due to take part, (iii) the confidentiality obligations of CDS Default Committee Members and CDS Default Committee Participants and the limitations on liability applicable to such persons, (iv) timing requirements with respect to the submission of CDS Trade Particulars and (v) various drafting clarifications and improvements. ICE Clear Europe is also proposing to update the CDS Default Management Policy which would provide further detail with respect to the requirements for a Clearing Member to be Committee-Eligible for purposes of serving on the CDS Default Committee, and to make various drafting clarifications and improvements, as consistent with the proposed updates to the Procedures.
The amendments to the Procedures would clarify that the term “CDS Committee-Eligible Clearing Members” must be approved in accordance with paragraph 5.2 of the Procedures and continue to meet the criteria of such Paragraph. As described below, paragraph 5.2, as proposed to be amended, would specify in detail the requirements for a Clearing Member to be approved to be a CDS Committee-Eligible Clearing Member.
The amendments would revise paragraph 4.4 of the Procedures, which describes the timing requirements for submitting CDS Trade Particulars, to clarify that with respect to CDS Trade Particulars submitted after 6:00 p.m. on a Business Day or on a day that is not a Business Day, unless a revocation right exists and is exercised or unless otherwise stated in circular, among other existing exceptions, such CDS Trade Particulars would be deemed to have been submitted at 8:00 a.m. on the following Business Day. Furthermore, the Procedures would provide that if the Trade Date specified in the CDS Trade Particulars is not a Business Day, then the relevant CDS Trade Particulars would be rejected. This reflects current Clearing House practice.
The amendments to the Procedures in paragraph 5 would update the requirements for a Clearing Member to be approved to be a CDS Committee-Eligible Clearing Member. Pursuant to paragraph 5.2, as proposed to be amended, the Clearing Member would need to meet the following conditions in order to be eligible: (a) In the event that it has one or more Affiliates that are CDS Clearing Members, it has the longest period of membership of the Clearing House among such Affiliates; (b) it has a London-based CDS trading desk; and (c) it is deemed appropriate to be a CDS Default Committee Member by the Clearing House at its discretion. The Clearing House would maintain a list of all CDS Committee-Eligible Clearing Members. The procedure for maintaining the CDS Default Committee Participant List (including adding CDS Clearing Members to, removing CDS Clearing Members from or changing the order of Clearing Members on the CDS Default Committee Participant List) would be determined from time to time by the Clearing House at its discretion. (Certain such matters would be addressed in further detail in the Policy, as discussed below.) CDS Clearing Members would be able to provide information of relevance to the Clearing House with respect to their own inclusion or omission or order on the list, but such information would not be binding on the Clearing House. Additionally, the Procedures would state that ICE Clear Europe may also share the CDS Default Committee Participant List with any other clearing organization.
Amendments to paragraph 5.3 would add that if a CDS Committee-Eligible Clearing Member considers that it is unable to take part in the CDS Default Committee for the Relevant CDS Default Committee Period for which it is due to take part, it may request to postpone its participation for that period. ICE Clear Europe could, at its discretion, approve such request and, if so, the following events would take place: (a) That CDS Committee-Eligible Clearing Member would be listed so as to take part in the
Paragraph 5.4 would be amended to add that if a CDS Clearing Member becomes a defaulter or is suspended or receives a termination notice with respect to its Clearing Membership, it would be removed from the CDS Default Committee Participant List. Paragraphs 5.4 and 5.5 would be amended to clarify that the CDS Default Committee Participant List would be amended to take into account any Clearing Member that becomes (or resumes being) a CDS Committee-Eligible Clearing Member or is removed from being a CDS Default Committee Participant because the Clearing House determines that such Clearing Member has a conflict or lacks impartiality.
The amendments in paragraph 5.6 would also provide that the Clearing House would give notice that, since CDS Default Committee Members and CDS Default Committee Participants act as part of the governance of ICE Clear Europe, such CDS Default Committee Members and CDS Default Committee Participants would take the benefit of all exclusions and limitations of liability available to the Clearing House under the Rules or Applicable Laws. The change is intended to make the exclusions and limitations on liability for such persons consistent with those generally applicable to Clearing House governance process.
The amendments in paragraph 5.8 would provide that CDS Clearing Members agree and acknowledge that each CDS Default Committee Members and CDS Default Committee Participant (each a “Covered Party”) would be subject to the provisions of Rule 106 (regarding confidentiality of information received and permitted disclosures) as if it were the Clearing House. Furthermore, each CDS Clearing Member would be required to ensure that each such Covered Party nominated by it would not use any Confidential Material for its own benefit or the benefit of any of its Affiliates and, if so requested by the Clearing House, would execute any documentation specified by the Clearing House acknowledging the same. The procedures that would apply in the event a Covered Party is served with or otherwise subject to legal process have been removed as unnecessary in light of the referenced provisions of Rule 106. Paragraph 5.9 would be amended to clarify that each CDS Clearing Member agrees that each Covered Party would be responsible for its own costs associated with its service in such position.
By way of general drafting clarifications and improvements, the amendments to the Policy would remove Appendices A and B, which contain various forms of notice and examples, as well as references thereto. In ICE Clear Europe's view, these appendices do not need to be included in the Policy and, to the extent they remain relevant, forms of notice can be maintained by the Clearing House separately. Certain terminology would be updated throughout the Policy as follows: (i) The term, Employee, would be updated to Eligible Employee; and (ii) the terms, Defaulting Clearing Member or Defaulting Member, would be updated to defaulter in certain instances in order to avoid repetition and aid with readability. Certain provisions relating to the Clearing House ceasing to clear new trades for a Defaulting Clearing Member would be moved and reorganized.
Consistent with the changes described above to the CDS Procedures, the Policy would be amended to provide that a Clearing Member would only be defined as Committee-Eligible, hereby permitting such Clearing Member to be a CDS Default Committee Participant, if such Clearing Member (i) is deemed appropriate by the Clearing House, (ii) is the primary clearing entity of an affiliate group, and (iii) has a London based trading desk. The Policy would also clarify that the Clearing House maintains a list of all CDS Committee-Eligible Clearing Members and that the relevant term for the committee (“Relevant CDS Default Committee Period”) is six calendar months or until the end of any active Default event.
In addition, the Policy would provide that in the event that a CDS Default Committee Participant is unable to fulfill its upcoming rotation obligation for any reason including serving in the CDS Default Committee of another clearing house, such CDS Default Committee Participant would have the option to request to postpone their Relevant CDS Default Committee for a Relevant CDS Default Committee Period. If the Clearing House finds the reason for postponement satisfactory, the CDS Default Committee Participant would be substituted for a CDS Committee-Eligible Clearing Member from the next three members on the CDS Default Committee Participant List. Prior to commencement of a rotation, CDS Default Committee Members would be required to have signed all documentation required by the Clearing House (including but not limited to a Seconded Trader Agreement), and the Clearing House would use reasonable efforts to ensure that such requirement is enforced.
The amendments would also clarify that CDS Default Committee Members would be responsible for assisting in executing any CDS transactions (with respect to Rules 902 or 903 in CDS only) on behalf of the Clearing House only if needed. Under the Committee Activation Procedures section, the procedure for use of an alternate CDS Default Committee Member contact would be revised to refer generally to a situation where the designated primary representative cannot be reached in a reasonable amount of time, and remove specific examples of reasons a member could not be reached.
The amendments would clarify that upon arrival at the ICE Clear Europe offices, each CDS Default Committee Member would be assigned a PC with the ICE Clear Europe risk reports concerning the defaulter's portfolio and a third-party data provider application. References to how the CDS Default Committee Member would be able to login to the PC and view certain information sent to ICE Clear Europe by the non-defaulting Clearing Members would be removed as unnecessary. The amendments would also clarify that CDS Default Committee Members would only execute the hedging and liquidating transactions that the Head of Clearing Risk and the team deem necessary.
The amendments would remove the requirement that seconded traders sign an additional confidentiality agreement pertaining to their role within a given member default (as ICE Clear Europe believes the existing single secondment agreement is sufficient). Instead, the Policy would provide that CDS Default Committee Members would be reminded of ongoing confidentiality
The amendments would provide that details of the auction and relevant position data will be made available through the ICE Default Management System, consistent with the ICE Clear Europe auction procedures. The amendments would also clarify that following the close of an auction for sub-portfolio, the Clearing House would publish the new trades to be booked to the winning bidders through the ICE Default Management System. The Clearing House would no longer notify the point of contact for the winning bidders verbally. The change is intended to conform to the ICE Clear Europe auction procedures.
The amendments would provide additional detail with respect to default management testing. Specifically, pursuant to the amendments, the Policy would state that the Clearing House would test and review its default procedures at least quarterly and perform simulation exercises at least annually. The default test would be conducted in coordination with Clearing Members by engaging all the internal and external stakeholders that would be involved in the default management process (for example, the Clearing Risk Department, ICE Clear Europe Senior Management Team, CDS Default Committee Members, regulators, etc.). Each default test would be planned in accordance with the ICE Clear Europe Multi-Years Default Plan, which would list several different default scenarios that would need to be tested by the Clearing House on a regular basis. The ICE Clear Europe Senior Management Team would be responsible for approving the scope of the annual default test by choosing different scenarios outlined in the Plan. The Plan and changes to it would need to be approved by the Executive Risk Committee.
ICE Clear Europe believes that the proposed amendments to the CDS Default Management Policy and the CDS Procedures are consistent with the requirements of Section 17A of the Act
The proposed changes to the CDS Procedures and CDS Default Management Policy are designed to strengthen ICE Clear Europe's tools to manage Clearing Member defaults with respect to CDS contracts. The CDS Default Committee, which relies on seconded representatives of Clearing Members, is a key aspect of the Clearing House's procedures for addressing Clearing Member defaults, including by facilitating the ability of the Clearing House to hedge or liquidate positions of the defaulter. The amendments would update and clarify the requirements for a Clearing Member to be eligible to serve on the CDS Default Committee as well as clarify the procedures to be used by the CDS Default Committee if such Clearing Member is unable to fulfill its upcoming rotation obligation. The clarifications and other changes to the Policy and Procedures enhance readability and ensure that the Policy and Procedures remain clear and up-to-date. Through better managing risks in default scenarios and promoting market stability, the proposed amendments promote the stability of the clearing house and the prompt and accurate clearance and settlement of cleared contracts. The enhanced risk management is therefore also generally consistent with the protection of investors and the public interest in the safe operation of the Clearing House. (ICE Clear Europe would not expect the amendments to affect the safeguarding of securities and funds in ICE Clear Europe's custody or control or for which it is responsible.) Accordingly, the amendments satisfy the requirements of Section 17A(b)(3)(F).
In addition, ICE Clear Europe believes the amendments satisfy Rule 17Ad-22(e)(13),
Rule 17Ad-22(e)(3)(i)
ICE Clear Europe does not believe the proposed amendments would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The amendments are being adopted to update and clarify the ICE Clear Europe CDS Default Management Policy and ICE Clear Europe CDS Procedures and will apply to all CDS Clearing Members. ICE Clear Europe does not expect that the proposed changes will adversely affect
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 written comments received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
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-2020-018 and should be submitted on or before January 25, 2021.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
60-Day notice; request for comments
The Small Business Administration (SBA) is publishing this notice to solicit additional public comments on the information collection described below, particularly SBA Form 3509 “Loan Necessity Questionnaire (For-Profit Borrowers)” and SBA Form 3510, “Loan Necessity Questionnaire (Non-Profit Borrowers).” Comments in response to this second public comment notice will be evaluated in conjunction with comments received in response to previous notices published on July 14, 2020, and October 26, 2020. After such evaluation, SBA will submit any resulting amendments to the information collection to the Office of Management and Budget (OMB) for approval.
Submit comments on or before March 5, 2021.
Comments should refer to the information collection by title or OMB Control Number (3245-0407) and must be submitted by the deadline above to:
Adrienne Grierson, Program Manager, Office of Financial Program Operations, 202-205-6573
Section 1102 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law 116-136, authorized SBA to guarantee loans made by banks or other financial institutions under a temporary program titled the “Paycheck Protection Program” (PPP). These loans are available to eligible small businesses, certain non-profit organizations, veterans' organizations, Tribal business concerns, independent contractors, and self-employed individuals adversely impacted by the COVID-19 Emergency. Subject to certain limitations, proceeds of a PPP loan may be used for payroll costs, costs related to the continuation of group health care benefits during periods of paid sick, medical or family leave, and insurance premiums, mortgage interest payments, rent payments, utility payments, interest payments on other debt incurred prior to February 15, 2020, and to refinance an eligible SBA Economic Injury Disaster Loan. Under section 1106(b) of the CARES Act, a PPP
In order to make the financial assistance available as expeditiously as possible after the PPP was authorized, on April 6, 2020, SBA obtained emergency approval, including waiver of the 60-day and 30-day public comment notices, to collect the information necessary to process applications for the program. SBA amended the emergency approved information collection on several occasions as the need to quickly implement other aspects of the PPP (
At the time SBA published the 60-day notice, the Agency had not yet developed Form 3508S, a “PPP Loan Forgiveness Application”; Form 3509, “Loan Necessity Questionnaire (For-Profit Borrowers)”; and SBA Form 3510, “Loan Necessity Questionnaire (Non-Profit Borrowers)”; therefore, they were not referenced in a public comment notice until the 30-day notice.
Borrowers that received a PPP loan of $50,000 or less may use Form 3508S to apply for forgiveness of the loan (unless the borrower, together with its affiliates, received PPP loans totaling $2 million or greater). This form was developed to streamline the process for borrowers with very small loans. Forms 3509 and 3510 are designed to collect additional information from non-profit or for-profit borrowers that together with their affiliates received PPP loans of $2 million or more. The information will be collected during SBA's review of these loans, which includes an assessment of the borrowers' good-faith certifications that due to the economic uncertainty their PPP loan requests were necessary to support ongoing operations. As part of their response to the questionnaire, borrowers may include a statement regarding the circumstances that provided the basis for their good-faith loan necessity certification.
SBA received multiple comments in response to the notices, particularly the 30-day notice. Generally, commenters focused almost exclusively on SBA Form 3509 and SBA Form 3510. Commenters expressed concern that the affected public had not been given adequate notice to review or comment on these two forms. Accordingly, SBA is publishing this notice to provide 60 days for the public to review the PPP information collection, particularly these two forms.
SBA invites the public to submit comments, including specific and detailed suggestions on ways to improve the collection and reduce the burden on respondents. Commenters should also address (i) whether the information collection is necessary for the proper performance of SBA's functions, including whether it has any practical utility; (ii) the accuracy of the estimated burdens; (iii) ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) the use of automated collection techniques or other forms of information technology to minimize the information collection burden on those who are required to respond.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to March 5, 2021.
You may submit comments by the following method:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, may be sent to Natalie Donahue, Chief of Evaluation, Bureau of Educational and Cultural Affairs, who may be reached at (202) 632-6193 or
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions.
• 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 Career Connections program is managed by the Bureau of Educational and Cultural Affairs (ECA) Office of Alumni Affairs OAA. Started in 2019, the Career Connections program brings together American alumni (18-35 years old) of U.S. Government-sponsored exchange programs with expert career coaches, professionals from diverse fields, and international leaders to help alumni market their international exchange experiences. Delivered as two-day seminars across the country, the Career Connections program provides invaluable networking opportunities for U.S. alumni with leaders in their communities with activities including: Resume-building, developing a personal brand, translating skills gained through the exchange experience, developing an online presence, and networking to develop connections with fellow alumni and expert speakers alike.
ECA's Evaluation Division will undertake an internal evaluation of the Career Connections program. The purpose of this evaluation is to inform the next iteration of the award with participant-driven recommendations on how to strengthen the Career Connections program. The Evaluation Division will survey participants of Career Connections participants along with a small sample of alumni that have not participated in seminars, as well as conduct key-informant interviews with alumni and seminar presenters.
As existing project monitoring data does not cover the topics being investigated sufficiently, it is necessary to collect information directly from program alumni to fully understand how the Career Connections program can be strengthened and what the immediate outcomes for participants are. While alumni who have participated in the Career Connections program will receive an online survey, a small number will also be invited to participate in individual interviews to explore key issues in greater depth. The survey will also be sent to a small sample of alumni that have not participated in Career Connections seminars to understand why they haven't participated and how they could be enticed to in the future. Finally, as ECA wishes to understand best practices in professional development training, a small group of seminar presenters will be invited to participate in individual interviews to discuss what they feel could be strengthened.
Notice.
This notice contains the text of the report required by the Global Magnitsky Human Rights Accountability Act, as submitted by the Secretary of State.
Bob Viglietta, Email:
On December 10, 2020, the Secretary of State approved the following report pursuant to the Global Magnitsky
Pursuant to Section 1264 of the Act, and in accordance with E.O. 13818, the Secretary of State, in consultation with the Secretary of the Treasury, submits this report to detail the Administration's implementation of the Act in 2020.
In 2020, the United States took significant action under the Global Magnitsky sanctions program (“Global Magnitsky”). As of December 10, 2020, the United States has designated 243 foreign persons (individuals and entities) pursuant to E.O. 13818. This sanctions program, which targets serious human rights abusers, corrupt actors, and their enablers, represents the best of the United States' values by taking impactful steps to protect and promote human rights and combat corruption around the world. Through the Act and E.O. 13818, the United States has sought to disrupt and deter serious human rights abuse and corruption abroad; promote accountability for those who act with impunity; and protect, promote, and enforce longstanding international norms alongside our partners and allies.
As the President outlined in his National Security Strategy (NSS), liberty, free enterprise, equal justice under the law, and the dignity of every human life are values that represent who we are as a people. Further, the NSS states we support with our words and actions those who live under oppressive regimes and seek freedom, individual dignity, and the rule of law. The NSS outlines a commitment to combat global corruption that facilitates transnational crime and terrorism and undermines economic growth. Through Global Magnitsky, the Administration is taking action to execute the President's vision as described in the NSS.
Actions taken in 2020 continue to demonstrate the reach, flexibility, and broad scope of the Global Magnitsky authorities. The United States responded to serious human rights abuses and corruption globally, addressing some of the most egregious behavior this tool can attempt to disrupt and deter. These actions targeted, among other things, serious human rights abusers affecting millions of members of Muslim minority groups in northwest China's Xinjiang province; corrupt actors in South Sudan involved in draining the country of critical resources; and Ugandan officials engaged in an adoption scam that victimized Ugandan-born children. These designations clearly demonstrate the resolve of the Administration to leverage this important tool, when appropriate, to target individuals and entities engaging in specified conduct.
When considering economic sanctions under Global Magnitsky, the United States prioritizes actions that are expected to produce a tangible and significant impact on the sanctioned persons and their affiliates and prompt changes in behavior or disrupt the activities of malign actors. Persons sanctioned pursuant to this authority appear on the Office of Foreign Assets Control's (OFAC) List of Specially Designated Nationals and Blocked Persons (SDN List). As a result of these actions, all property and interests in property of the sanctioned persons that are in the United States or in the possession or control of U.S. persons, are blocked and must be reported to OFAC. Unless authorized by a general or specific license issued by OFAC or otherwise exempt, OFAC's regulations generally prohibit all transactions by U.S. persons or within (or transiting) the United States that involve any property or interests in property of designated or otherwise blocked persons. The prohibitions include the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person or the receipt of any contribution or provision of funds, goods or services from any such person.
The Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, imposed financial sanctions on the following persons pursuant to E.O. 13818:
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Although no visa restrictions were imposed under the Act during 2020, persons designated pursuant to E.O. 13818 shall be subject to the visa restrictions articulated in section 2, unless an exception applies. Section 2 provides that the entry of persons designated under section 1 of the order is suspended pursuant to Presidential Proclamation 8693. In 2020, the State Department also applied, when appropriate, visa restrictions on foreign persons involved in significant corruption or gross violation of human rights under other authorities, reported to Congress through other means. As appropriate, the Department of State will take additional action to impose visa restrictions on those responsible for certain human rights violations and significant corruption pursuant to other authorities, including Presidential Proclamations 7750 and 8697, and Section 7031(c) of the FY2020 Department of State, Foreign Operations, and Related Programs, as carried forward by the FY2021 Continuing Appropriations Act, 2021. In addition, section 212(a)(3)(E) of the Immigration and Nationality Act renders aliens ineligible for visas if a consular officer has reason to believe that they participated in acts of genocide, torture or extrajudicial killings.
In 2020, the Administration continued its successful outreach campaign to international partners regarding the expansion of domestic and multilateral anticorruption and human rights sanctions regimes. Following support by the Departments of State and the Treasury over the course of 2018-2019 to deliver expertise on the underpinnings of the Global Magnitsky sanctions program, the United Kingdom established a Global Human Rights (GHR) sanctions regime pursuant to its Sanctions and Anti-Money Laundering Act 2018 on July 6, 2020. In February 2020, the Departments of State and the Treasury formed a technical delegation to brief Australian partners at the invitation of Parliament, which initiated an inquiry into whether Australia should adopt a human rights-based sanctions regime. The Administration also welcomed the European Union's adoption of its global human rights sanctions framework on December 7, 2020. Over the last year, the Administration has worked closely with the Canadian and British governments in pursuing coordinated actions against human rights abusers and corrupt actors. Throughout this and future outreach, the Administration has identified champions, partners, and potential spoilers of the objectives established by Congress within the Act. The Departments of State and the Treasury have, over the last year, shared information, coordinated messaging, and provided technical assistance to this end. The Administration will continue to seek out additional allies and partners to jointly leverage all tools at our disposal to deny access to the U.S. and international financial systems to all those who engage in serious human rights abuses and corruption.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to March 5, 2021.
You may submit comments by the following method:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, may be sent to Natalie Donahue, Chief of Evaluation, Bureau of Educational and Cultural Affairs, 2200 C Street NW, Washington, DC 20037 who may be reached at (202) 632-6193 or
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of 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.
TechGirls enables students aged 15-17 to gain exposure to a range of careers in science, technology, engineering, and mathematics (STEM) through a month-long summer scholarship program in the United States. The program includes programming bootcamp, leadership skills development, job shadow with women in STEM fields, and a home stay with U.S. families. In addition to exposure to career and educational pathways, participants gain understanding of the United States and its culture and create a network of STEM-focused alumnae upon their return home. The authority for the program is the Mutual Educational and Cultural Exchange Act of 1961, as amended (22 U.S.C. 2451
In order to assess the efficacy and impact of TechGirls, the U.S. Department of State's Bureau of Educational and Cultural Affairs (ECA) intends to conduct an evaluation of the program, which will include collection of data from program alumnae between 2012 and 2019, program staff, host families in the United States, and job shadow hosts. As the TechGirls program has been running for almost 10 years, ECA is conducting this evaluation to determine the extent to which the program is achieving its long-term goals. In order to do so, ECA has contracted Dexis Consulting Group to conduct surveys with alumnae and surveys with their host families, program staff, and job shadow hosts.
As baseline information is limited to initial profiles, it is necessary to collect information directly from program alumnae to assess the outcomes of the TechGirls experience, particularly in the areas of educational and career trajectories and networking with others. Additional perspectives will be sought from the participants' host families and job shadow hosts. All of these groups will receive online surveys.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of proposed regulatory guidance; request for comments.
FMCSA is proposing to revise the regulatory guidance concerning recording time operating a commercial motor vehicle as a “yard move.” This guidance applies to all commercial motor vehicle (CMV) drivers required to record their hours of service. The Agency requests public comments on the proposed guidance, which includes examples of properties that are and are not “yards.” Movements of CMVs in “yards” would be considered “yard moves” and could be recorded as on-duty not driving time rather than driving time.
Comments are due by February 3, 2021.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2020-0118 using any of the following methods:
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Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to www.regulations.gov, including any personal information included in a comment. Please see the
Mr. Bill Mahorney, Chief, Enforcement Division, FMCSA, 202-493-0001,
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2020-0118), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
FMCSA will consider all comments and material received during the comment period and may change this notice based on your comments.
FMCSA will consider all comments and material received during the comment period and may make changes based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
The Federal Motor Carrier Safety Regulations require most drivers of commercial motor vehicles (CMVs) to document their hours of service (HOS) on records of duty status (RODS), identifying one of four duty status options: (1) On-duty not driving, (2) driving, (3) sleeper berth, and (4) off-duty (49 CFR 395.8). Drivers are required to document their duty status on their RODS irrespective of the method used to record the driver's HOS (
The minimum performance and design standards for ELDs in the Agency's December 16, 2015, final rule, “Electronic Logging Devices and Hours of Service Supporting Documents” (80 FR 78292), require manufacturers to include two special driving categories: Authorized personal use (“personal conveyance”) and “yard moves.” These categories may be used by drivers at the motor carrier's discretion (49 CFR 395.28). FMCSA stated in its Supplemental Notice of Proposed Rulemaking that the intent of the “yard move” category was to capture time “where the CMV may be in motion but a driver is not necessarily in a `driving' duty status” (79 FR 17656, 17668, March 28, 2014). Some commenters asked that the term “yard move” be defined. Commenters generally viewed “yard moves” as an on-duty not driving activity occurring on private property.
The Agency declined to define the term “yard move” in its final rule, noting that “yard moves” relate broadly to the HOS rules, not just to CMV operations using ELDs. The final rule, however, provides that ELDs will record “yard moves” as on-duty not driving time (49 CFR part 395, subpart B, appendix A, section 4.4.1.1(b)).
FMCSA published revised regulatory guidance concerning operating a CMV as a “personal conveyance” on June 7, 2018 (83 FR 26377). On February 28, 2020, FMCSA updated its guidance on “yard moves” in the U.S. Department of Transportation's guidance portal (85 FR 12663, March 3, 2020).
The Federal Highway Administration, FMCSA's predecessor agency, issued guidance on “yard moves” in a compilation of regulatory guidance published on April 4, 1997 (49 CFR 395.2, Question 9, 62 FR 16370, 16422). The 1997 guidance stated that a driver who jockeys CMVs in the yard (private property) on weekends should record that time as on-duty (driving) time. The 1997 guidance is no longer in effect. FMCSA's revised 2020 guidance provides that the time jockeying CMVs in the yard is not driving time. The driver should record that time as on-duty (not driving) time.
The 2020 updated guidance is consistent with the principle in the ELD rule that time spent performing “yard moves” should be recorded as on-duty not driving time. Because “yard moves” occur on private property within the confines of a yard and not on a public road, this time does not constitute “driving time” within the meaning of 49 CFR 395.2. The updated guidance is available on the Agency's website in the guidance portal at
FMCSA also published guidance in the guidance portal on February 28, 2020, that distinguishes between movements of the CMV that may be considered as off-duty “personal conveyance” and movements that are on-duty “yard moves.” This guidance is available on the Agency's website in the guidance portal at
An on-duty yard move, such as moving the vehicle a short distance while waiting to load, would not qualify as personal conveyance.
FMCSA proposes to clarify when a driver may record time performing “yard moves” as on-duty not driving time by providing examples of properties that qualify as yards. Therefore, the movement of a CMV on these properties would qualify as a “yard move” and be recorded as on-duty not driving time.
FMCSA proposes to replace Question 9 to 49 CFR 395.2 at
This guidance, if finalized, lacks the force and effect of law and is not meant to bind the public in any way. This guidance document is intended only to provide clarity to the public regarding the Agency's interpretation of its existing regulations.
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1. An intermodal yard or port facility.
2. A motor carrier's place of business.
3. A shipper's privately-owned parking lot.
4. A public road, but only if and while public access to the road is restricted through traffic control measures such as lights, gates, flaggers or other means. For example, if a driver must operate on a public road briefly to reach different parts of a private property, the movement may be considered a yard move if public access is restricted during the move.
(b) Examples of properties that do not qualify as yards, include, but are not limited to:
1. A public road without the traffic control measures in paragraph (a)(4) above.
2. Public rest areas.
In accordance with section 5203(a)(2)(A) and (a)(3) of the Fixing America's Surface Transportation (FAST) Act, Public Law 114-94, 129 Stat. 1312, 1535 (Dec. 4, 2015), 49 CFR part 5, subpart C, and Executive Order 13891, the proposed regulatory guidance will be posted on FMCSA's website in the guidance portal,
Refer to the
1. Would defining “yard moves” in the Agency's regulations provide necessary clarification and therefore benefit carriers and drivers?
2. Are there other properties or situations where drivers may be in a “yard move” status that should be included as examples in this guidance?
3. Would adding examples of “yard moves” be beneficial for this guidance (
4. How should “yard” be defined for the purposes of this guidance?
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Goodyear Tire & Rubber Company (Goodyear) has determined that certain Eagle F1 Asymmetric 5 tires do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
Send comments on or before February 3, 2021.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
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• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petitions are granted or denied, notice of the decisions will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Goodyear filed a noncompliance report dated December 10, 2019, pursuant to 49 CFR part 573,
This notice of receipt of Goodyear's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any Agency decision or other exercise of judgment concerning the merits of the petition.
In support of the petition, Goodyear submitted the following reasoning:
1. Goodyear believes this noncompliance is inconsequential to motor vehicle safety because these tires were manufactured as designed and meet or exceed all applicable FMVSS. All of the sidewall markings related to tire service (load capacity, corresponding inflation pressure, etc.) are correct. Goodyear believes the mislabeling of these tires is not a safety concern and has no impact on the use of the tires or on the repair and recycling industries. Goodyear states that the affected tire mold has already been corrected and all future production will have the correct number of plies shown on the tire sidewalls.
2. Goodyear states that NHTSA has previously granted petitions for the same noncompliance related to tire construction information on tires because of surveys that show most consumers do not base tire purchases on tire construction information found on the tire related to the number of plies in the sidewall.
Goodyear concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that Goodyear no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after Goodyear notified them that the subject noncompliance existed.
National Highway Traffic Safety Administration, Department of Transportation (DOT).
Receipt of petition.
This document announces the National Highway Traffic Safety Administration (NHTSA) receipt of a petition for a decision that model year (MY) 1997 Jeep Wrangler multi-purpose vehicles (MPVs) that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS), are eligible for importation into the United States because they are substantially similar to vehicles that were originally manufactured for sale in the United States and that were certified by their manufacturer as complying with the safety standards (the U.S.-certified version of the 1997 Jeep Wrangler MPVs) and are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is February 3, 2021.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
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• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard along with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Robert Mazurowski, Office of Vehicle Safety Compliance, NHTSA (202-366-1012).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same MY as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice of each petition that it receives in the
Wallace Environmental Testing Laboratories, Inc. (WETL), (Registered Importer R-90-005), of Houston, Texas has petitioned NHTSA to decide whether nonconforming 1997 Jeep Wrangler MPVs are eligible for importation into the United States. The vehicles which Wallace Environmental Testing Laboratories, Inc. believes are substantially similar are MY 1997 Jeep Wrangler MPVs sold in the United States and certified by their manufacturer as conforming to all applicable FMVSS.
The petitioner claims that it compared non-U.S. certified MY 1997 Jeep Wrangler MPVs to their U.S. certified counterparts, and found the vehicles to be substantially similar with respect to compliance with most FMVSS.
Wallace Environmental Testing Laboratories, Inc. submitted information with its petition intended to demonstrate that non-U.S. certified MY 1997 Jeep Wrangler MPVs, as originally manufactured, conform to many applicable FMVSS in the same manner as their U.S.-certified counterparts, or are capable of being readily altered to conform to those standards. Specifically, the petitioner claims that the non-U.S. certified MY 1997 Jeep Wrangler MPVs, as originally manufactured, conform to: FMVSS Nos. 102,
The petitioner also contends that the subject non-U.S. certified vehicles are capable of being readily altered to meet the following FMVSS, in the manner indicated:
FMVSS No. 101,
The petitioner additionally states that all vehicles will be inspected prior to importation for compliance with the Theft Prevention Standard per 49 CFR part 541. The petitioner further states a vehicle identification plate must be affixed to the vehicle, near the left windshield pillar, to meet the requirements of 49 CFR part 565, as well as, a reference and certification label added to the left front door post area to meet the requirements of 49 CFR part 567.
49 U.S.C. 30141(a)(1)(A), (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Porsche Cars North America, Inc. (Porsche), has determined that certain model year (MY) 2008-2019 Porsche Cayenne and Macan motor vehicles do not comply with Federal motor vehicle safety standard (FMVSS) 110,
Kerrin Bressant, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-1110, facsimile (202) 366-5930.
Porsche has determined that certain MY 2008-2019 Porsche Cayenne and Macan motor vehicles do not fully comply with paragraphs S4.4.2(a) and S4.4.2(c) of FMVSS No. 110,
Notice of receipt of Porsche's petition was published with a 30-day public comment period, on October 15, 2019, in the
Approximately 230,212 of the following MY 2008-2019 Porsche Cayenne and Macan motor vehicles, manufactured between June 1, 2007, and September 21, 2018, are potentially involved:
Porsche explains that the noncompliance is that the subject vehicles are equipped with rims that do not contain the required rim markings as specified in paragraph S4.4.2 of
Paragraphs S4.4.2(a) and S4.4.2(c) of FMVSS 110, include the requirements relevant to this petition. In section S4.4.2(a), each rim or, at the option of the manufacturer in the case of a single-piece wheel, each wheel disc shall be marked with the designation that indicates the source of the rim's published nominal dimensions. Specifically, the noncompliant rims should have been marked with the letter “E” indicating the European Tire and Rim Technical Organization as the source of nominal dimensions. Section S4.4.2(c) requires each wheel disk to be marked with the symbol “DOT,” constituting a certification of compliance with all applicable FMVSS.
Porsche described the subject noncompliance and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, Porsche submitted the following reasoning:
1. With respect to FMVSS No. 110, paragraph S4.4.2(c), the DOT marking signifies that the manufacturer of the rim has certified that the rim complies with all applicable FMVSSs. Porsche asserts that because the DOT marking is a “certification,” it is a violation of 49 U.S.C. 30115 (“Certification”), which does not require notification or remedy. Porsche asserts that this is consistent with NHTSA's prior decision on petitions for the same issue. (
2. With respect to FMVSS No. 110, paragraph S4.4.2(a), Porsche believes that the omission of the designation symbol “E” will not prevent the proper matching of tires and rims because sufficient information about rim size is available from other markings on the rim and the corresponding owner's manual instructions. More specifically, Porsche states, the rims are marked correctly with the size designation; the correct tire size information is listed on the Tire and Loading Information placard, and the tire size is marked on the tire sidewall. The vehicles' Certification label also contains the correct tire and rim sizes. Porsche indicates that, importantly, the omitted marking does not affect the ability to identify the rims in the event of a recall and is not likely to have any effect on motor vehicle safety. Porsche asserts that this is again consistent with NHTSA's prior decision on petitions for the same. (
3. The tire and rim of the affected spare wheels are properly matched and are appropriate for the load-carrying characteristics of the subject vehicle. Porsche asserts that the incorrect association marking has no effect on the performance of the tire/rim combination.
4. The subject tire/rim assembly meets paragraph S4.4.1(b) rapid air loss requirement of FMVSS No. 110. All other applicable requirements of FMVSS Nos. 109 and 110 have been met.
5. Lastly, Porsche is unaware of any accidents, injuries, or customer complaints related to the omitted markings.
Porsche concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
Porsche's complete petition and all supporting documents are available by logging onto the Federal Docket Management System (FDMS) website at
NHTSA received one comment from the general public. While the Agency takes great interest in the public's concerns and appreciates the commenter's feedback, the comment does not address the purpose of this particular petition.
The intent of the labeling requirements in paragraphs 4.4.2(a) and S4.4.2(c) of FMVSS No. 110 is to provide safe operation of vehicles by ensuring that vehicles are equipped with rims of appropriate size and type designation mounted with compatible tires of appropriate size and load rating. The purpose of the “DOT” marking is to certify compliance with all applicable standards. The “DOT” certification is also itself a requirement of the standard, 49 CFR 571.110, S.4.4.2(c). However, NHTSA finds that the noncompliance with the “DOT” marking requirement is inconsequential in this situation, given Porsche's representation that the vehicles comply with the standard, other than as discussed herein, and given that the vehicles have a vehicle-level certification of compliance.
Furthermore, while manufacturers are required to include the designation symbol required by S4.4.2(a), its omission does not prevent the proper matching of tires and rims in this unique situation because sufficient information about rim size is available from other markings on the rims, as well as information available from the certification label required by 49 CFR part 567 and the vehicle placard (tire information label) required by FMVSS No. 110 that are present on the affected vehicles. In addition, the omitted marking does not affect the ability to identify the rims in the event of recall and is not likely to have a consequential effect on motor vehicle safety.
In consideration of the foregoing, NHTSA has decided that Porsche has met its burden of persuasion that the failure to mark the wheels with the letter “E” as the source of wheel nominal dimensions, as required by paragraph S4.4.2(a), and the symbol “DOT” for recognizing certification to all applicable FMVSSs, are inconsequential to motor vehicle safety. Accordingly, Porsche's petition is granted, and it is exempted from providing the notification of noncompliance that is required by 49 U.S.C. 30118, and from remedying the noncompliance, as required by 49 U.S.C. 30120.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that Porsche no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Porsche notified them that the subject noncompliance existed.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2420; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; Assistant Director for Licensing, tel.: 202-622-2480; or Assistant Director for Regulatory Affairs, tel.: 202-622-4855.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On October 2, 2020, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
Departmental Offices, Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before February 3, 2020 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Molly Stasko by emailing
44 U.S.C. 3501
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App 2., that the Veterans and Community Oversight and Engagement Board will meet virtually on January 28, 2021. The meeting session will begin and end as follows:
The meetings are open to the public. Members of the public can attend the meeting via teleconference (800) 767-1750 access code 94323#.
The Board was established by the West Los Angeles Leasing Act of 2016 on September 29, 2016. The purpose of the Board is to provide advice and make recommendations to the Secretary of Veterans Affairs (SECVA) on: Identifying the goals of the community and Veteran partnership; improving services and outcomes for Veterans, members of the Armed Forces, and the families of such Veterans and members; and on the implementation of the Draft Master Plan approved by the Secretary on January 28, 2016, and on the creation and implementation of any successor master plans.
On January 28, the agenda will include opening remarks from the Committee Chair and the Executive Sponsor. The Advisory Committee Management Office will present, Federal Advisory Committee Act 101 training. There will be a general update from Veterans Administration Greater Los Angeles Healthcare System (VAGLAHS) on COVID-19 response, Draft Master Plan Timeline Update, preliminary breakdown for the housing planned IAW the Master Plan, and Strategies to overcome CERs Staffing shortage. The West Los Angeles
Individuals wishing to share information with the Committee should contact Mr. Chihung Szeto (Alternate Designated Federal Official) at
Any member of the public seeking additional information should contact Mr. Eugene W. Skinner Jr. at (202) 631-7645 or at
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), are reclassifying the June sucker (
This rule is effective February 3, 2021.
This final rule, supporting documents we used in preparing this rule, and public comments we received are available on the internet at
Yvette Converse, Field Supervisor, telephone: 801-975-3330. Direct all questions or requests for additional information to: JUNE SUCKER QUESTIONS, U.S. Fish and Wildlife Service, Utah Ecological Services Field Office, 2369 Orton Circle, Suite 50, West Valley City, UT 84119. Persons who use a TDD may call the Federal Relay Service at 800-877-8339.
This final rule recognizes that based on the best available science, June sucker no longer meets the definition of an endangered species, but will remain protected as a threatened species under the Act. This progress towards recovery is a result of conservation efforts implemented by stakeholders. Collaborative conservation efforts have reduced the intensity of threats to the species and improved its population numbers. The 4(d) rule will accommodate recovery activities such as non-native control efforts, habitat restoration, monitoring, research, stocking, and refuge maintenance.
On March 31, 1986, we published in the
On November 13, 2001, we published in the
On November 26, 2019, we published in the
It is our intent to discuss only those topics directly related to downlisting June sucker in this rule. The citations represent only the sources required to support this action or to provide context for it, and are not the sum total of all literature pertaining to the species. For more information on the description, biology, ecology, and habitat of the species, please refer to the final listing rule published in the
In our analysis, we identify the species' ecological requirements for survival and reproduction using the concepts of resiliency, redundancy, and representation (the 3Rs). Resiliency is the ability of a species to withstand environmental and demographic stochastic events (the natural range of favorable and unfavorable conditions). It is associated with population size, growth rate, and habitat quality. Redundancy is the ability of a species to
The June sucker, a unique lake sucker named for the month in which it spawns, was first collected and described by David S. Jordan in 1878, in Utah Lake, Utah County, Utah (Jordan 1878, entire). However, taxonomic questions regarding hybridization of the June sucker and co-occurring Utah sucker (
The two species likely evolved together in Utah Lake. During the 1930s, a severe drought stressed the sucker populations in Utah Lake, increasing the incidence of June and Utah sucker hybridization (Miller and Smith 1981, p. 7). After this hybridization event, as sucker populations increased in abundance, the new genes that occurred in both the June sucker and Utah sucker populations resulted in hybrid characteristics within both populations (Evans 1997, p. 8). It is likely that the two species may have hybridized at multiple points in the past, in response to environmental bottlenecks (Evans 1997, pp. 9-12). As a result of the hybridization event in the 1930s, two subspecies of June sucker were originally identified—
The June sucker has a large, robust body; a wide, rounded head; and a hump on the snout (Scoppettone and Vinyard 1991, p. 1). Adults are 17-24 inches (in) (43.2-61.0 centimeters (cm)) in length (Scoppettone and Vinyard 1991, p. 1; Belk 1998, p. 2). Lake suckers are mid-water planktivores (plankton feeders). The June sucker is a long-lived species, living to 40 years or more (Scoppettone and Vinyard 1991, p. 3; Belk 1998, p. 6). In the wild, June suckers reach reproductive maturity at 5-10 years of age. They exhibit rapid growth for the first 3-5 years, with intermediate growth rates between ages 8-10, and a further reduced growth rate after age 10. Growth between sexes does not differ within the first 10 years (Scoppettone and Vinyard 1991, p. 9).
The June sucker is native and endemic to Utah Lake and its tributaries, which are the primary spawning habitat for the species. The June sucker is not found outside of its native range except in two populations established for conservation purposes. A refuge population was created as part of the JSRIP stocking program to enhance and secure the species' population in Utah Lake at the Fisheries Experiment Station (FES) hatchery in Logan, Utah (Service 2015, entire). An additional population was established in Red Butte Reservoir, Salt Lake County, Utah, in 2004 and is now self-sustaining (Utah Division of Wildlife Resources (UDWR) 2010, pp. 4-5). These additional populations have aided in retaining ecologic and genetic diversity in June sucker, which in turn aids the species in adapting to changing environmental conditions (
Utah Lake is a remnant of ancient Lake Bonneville, and is one of the largest natural freshwater lakes in the western United States. It covers an area of approximately 150 square miles (mi
Utah Lake is located in a sedimentary drainage basin dominated by erosive soils with high salt concentrations. Utah Lake had a sediment filling rate of about 0.03 in (1 millimeter (mm)) per year over the past 10,000 years; this rate more than doubled with the urbanization of Utah Valley (Brimhall and Merritt 1981, pp. 3-5). Faults under the lake appear to be lowering the lake bed at about the same rate as sediment is filling it (Brimhall and Merritt 1981, pp. 10-11). Inputs of nutrient-rich sediments combined with the lake's high evaporation rate cause high levels of sediment loading, high soluble salt concentrations, and high nutrient levels as a baseline condition (Brimhall and Merritt 1981, p. 11).
Shallow lakes, such as Utah Lake, are typically characterized as having one of two ecological states: A clear water state or a turbid water state (Scheffer 1998, p. 10). The clear water state is often dominated by rooted aquatic macrophytes (aquatic plants) that can greatly reduce turbidity by securing bottom sediments (Carpenter and Lodge 1986, p. 4; Madsen
Historically, Utah Lake existed in a clear water state dominated by rooted aquatic vegetation, as shown in sediment cores extracted from Utah Lake (Macharia and Power 2011, p. 3). Sediment cores reveal a shift in the state of the lake shortly after European settlement of Utah Valley to an algae-dominated, turbid condition, lacking macrophytic vegetation that serves as refugial habitat for June sucker (Brimhill and Merritt 1981, p. 16; Scheffer 1998, p. 6; Hickman and Thurin 2007, p. 8; Macharia and Power 2011, p. 5). This shift is believed to be a result of excessive nutrient input, management-induced fluctuations in lake levels, and the introduction of common carp (
The extent of ideal riverine habitat available for spawning adults and developing larval June sucker was more abundant historically than it is currently. Prior to settlement of Utah Valley, spawning tributaries, such as the Provo, Spanish Fork, and American Fork Rivers, and Hobble Creek, contained large deltas with braided, slow, meandering channels and aquatic vegetation that provided suitable spawning and larval rearing habitat (Olsen
Since European colonization of Utah Valley, changes to the tributaries have decreased the available habitat for June sucker spawning and rearing, although recent restoration projects have improved conditions in the Provo River and Hobble Creek. The Provo River contains many natural characteristics that support the majority of the June sucker spawning run and also play an important role in contributing to the recovery of the species. The Provo River is the largest tributary to the lake in terms of annual flow, width, and watershed area (Stamp
June suckers are highly mobile and can cover large portions of their range in a short period of time (Radant and Sakaguchi 1981, p. 7; Buelow 2006, p. 4; Landom
During pre-spawn staging, in April and May, June suckers congregate in large numbers near the mouths of the Provo River, Hobble Creek, Spanish Fork River, and American Fork River (Radant and Hickman 1984, p. 3; Buelow
Most spawning is completed within 5-8 days. Post-spawning suckers congregate near the mouth of Provo Bay, which could be a response to the high food productivity that remains in the bay until the fall (Radant and Shirley 1987, p. 13; Buelow 2006, p. 8). Zooplankton densities are greater in Provo Bay than in other lake areas (Kreitzer
June sucker spawning habitat consists of moderately deep runs and riffles in slow to moderate current with a substrate composed of 4-8 in (100-200 mm) coarse gravel or small cobble that is free of silt and algae. Deeper pools adjacent to spawning areas may provide important resting or staging areas (Stamp
Under natural conditions, June sucker larvae drift downstream and rear in shallow vegetated habitats near tributary mouths in Utah Lake (Modde and Muirhead 1990, pp. 7-8; Crowl and Thomas 1997, p. 11; Keleher
However, effects from nonnative common carp, altered tributary flows, lake water level management, nutrient loading, poor water quality, and river channelization have reduced the amount of shallow, warm, and complex vegetated aquatic habitat for rearing at the tributary mouths and Utah Lake interface. This reduction in rearing habitat has reduced survival of June suckers during the early life stages (Modde and Muirhead 1990, p. 9; Olsen
Early accounts indicate that Utah Lake supported an enormous population of June suckers (Heckmann
Hundreds of tons of suckers also died when Utah Lake was nearly emptied during a 1932-1935 drought (Tanner 1936, p. 3). After the drought, June sucker populations gradually increased again, but due to the combined impacts of ongoing drought, overexploitation, and habitat destruction, the population did not return to its historical level (Heckmann
By the time the species was listed under the Act (16 U.S.C. 1531
Due to the immediate threat of June sucker extinction at the time of listing, the UDWR began raising populations in hatcheries and at secure refuge sites. These efforts resulted in the stocking of June suckers into Utah Lake to boost population numbers beginning in the 1990s and continuing through the present day (UDWR 2018b, p. 3). As of 2017, more than 800,000 captive-bred June suckers have been stocked in Utah Lake (UDWR 2017b, p. 6). Stocking is planned to continue until the wild population is self-sustaining, which will be determined by population viability analysis (JSRIP 2018, p. 10).
Approximately 3,500 June suckers were spawning annually in Utah Lake tributaries as of 2016 (Conner and Landom 2018, p. 2). This represents at least a ten-fold increase in spawning fish from when the recovery plan was finalized in 1999 (Conner and Landom 2018, p. 2). The vast majority of fish detected spawning in Utah Lake tributaries are stocked fish that have become naturalized (survived for multiple years until reaching breeding age) (UDWR 2018c, p. 7). For all spawning tributaries combined, the spawning population size for both sexes substantially increased from 2008 to 2016, and the total known spawning population size grew by 22 percent. These figures represent a minimum number of confirmed spawning June
The actual population of wild June suckers in Utah Lake is likely greater than 3,500, because this number represents only the spawning adults. However, we did not attempt to extrapolate a total population estimate from the adult spawning data because monitoring efforts in tributaries were not consistent across all years, data were not available for one year due to high flows, and the percentage and origin of untagged fish in Utah Lake is not yet clear (Conner and Landom 2018, p. 4). Stocked June suckers are tagged with a passive integrated transponder (PIT). Untagged fish may be stocked fish that lost their PIT tag or the result of reproduction (
Monitoring of June suckers in the lower Provo River during the 2018 spawning period captured a significant portion of fish that were not PIT tagged (UDWR 2018, p. 3). The natural geochemical markers (signatures) in the otoliths (ear bones) and fin rays of collected, unmarked June suckers show that 39 percent (12 of 31) of these fish likely originated from the FES hatchery; 42 percent from Red Butte reservoir, other rearing facilities, or inconclusive; and 19 percent (6 of 31) had signatures indicating they originated in Utah Lake (Wolff and Johnson 2013, p. 9), meaning they were likely recruited naturally into Utah Lake. These results indicate that successful natural reproduction and recruitment are occurring, although the exact location and conditions that contributed to this successful natural recruitment are not known. Additional analysis of June suckers of unknown origin is planned within the next several years to determine the level of natural recruitment occurring in Utah Lake. Regardless of origin, capture of untagged fish indicates there is an unknown number of spawning June suckers that were not accounted for in the spawning population estimate.
The year-to-year survival rate of fish stocked into Utah Lake varies significantly depending on a number of factors, including length of fish at stock (which correlates to age) and time of year stocked (Goldsmith
Year-to-year survival rates for spawning June suckers ranged from 65 to 95 percent depending on the tributary and the year (Goldsmith
In summary, the viability of June sucker in its native range--as indicated by its representation, resiliency, and redundancy—has improved significantly since the time of listing, largely due to the efforts of the JSRIP (see Recovery, below). Stocking of June suckers, a program designed to maximize representation through genetic diversity, has been very successful at increasing the number of fish in Utah Lake. Stocked individuals are behaving as wild fish by migrating to new habitats, surviving many years, and participating in spawning activities. The JSRIP stocking program is planning to continue until the June sucker reaches self-sustaining population levels, with a focus on stocking 2-year-old fish over 12 in (300 mm) long to increase their chances of survival. The spawning population has increased at least ten-fold since 1999; there is evidence of high year-to-year survival rates and long-term survival for spawning individuals; and the spawning population is increasing at a high rate, improving the resiliency of the wild population. The stocking program and maintenance of two additional populations (the refuge population at FES hatchery and the introduced population at Red Butte Reservoir) also provide redundancy to the wild population. In 2020-2021, a study is underway to improve our understanding of the degree of natural recruitment of June sucker in Utah Lake and the origin of untagged June suckers. This information will, combined with future monitoring, yield a population estimate and help inform future stocking rates and management decisions for the purposes of further bolstering the species' representation, resiliency, and redundancy to achieve full recovery.
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List.
Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species, or to delist a species, is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan.
We finalized a recovery plan for June sucker in 1999, which included recovery actions and recovery criteria for downlisting and delisting of June sucker. These criteria lack specific metrics and will be updated in a forthcoming revised recovery plan for the species. However, they are still relevant to the evaluation of recovery, and we discuss them in this document as one way to evaluate the change in status of June sucker.
Since 2002, the JSRIP has funded, implemented, and overseen recovery actions for the conservation of June sucker in accordance with the guidance provided by the recovery plan, including using adaptive management techniques to address new stressors as they arose. These recovery actions include: (1) Acquiring and managing water flows, (2) restoring habitat, (3) removing carp, and (4) augmenting the wild June sucker population. These efforts, and how they relate to the recovery criteria, are described in the following paragraphs.
The first downlisting criterion requires that Provo River flows essential for June sucker spawning and recruitment are protected (Service 2011, p. 5). We consider this criterion to have been met. The JSRIP provides annual recommendations for river flows to support June suckers on the Provo River and Hobble Creek based on the known biology of the species and the historical flow levels to the CUWCD and other water-managing bodies. The JSRIP has also acquired water totaling over 21,000 acre-ft (25,903,080 cubic m (m
The amount of water delivered to supplement flows in the Provo River and Hobble Creek and the timing of those deliveries are determined annually through a cooperative process involving multiple agencies. In 1996, the June Sucker Flow Work Group (Flow Work Group) was formed by the USBR, DOI Central Utah Project Completion Act (CUPCA) Office, Provo River Water Users Association, Provo River Water Commissioner, CUWCD, UDWR, the Service, Provo City Public Works, and the URMCC. These agencies initially worked together to adjust reservoir releases to mimic a Provo River spring runoff hydrograph and improve June sucker spawning success. Since 2002, this process has been overseen by the JSRIP.
As recovery-specific water was acquired, the role of the Flow Work Group expanded to provide a forum for determining the optimal delivery pattern of supplemental flows. Based on existing conditions for a given year (
In 2004, the CUWCD, in cooperation with the Service and other members of the Flow Work Group, agreed on operational scenarios that mimic dry, moderate, and wet year flow patterns for the Provo River (CUWCD
In 2009, ecosystem-based flow recommendations were developed for Hobble Creek in the Lower Hobble Creek Ecosystem Flow Recommendations Report (Stamp
The second downlisting criterion for June sucker requires that spawning and brood-rearing habitat in the Provo River and Utah Lake be enhanced or established to provide for the continued existence of all life stages (Service 1999, p. 4). We consider this criterion to have been met. Habitat restoration projects occurred on the Provo River and Hobble Creek, and habitat quality was enhanced in Utah Lake as a result of nonnative
Modifications of the Fort Field diversion structure on the Provo River, located within critical habitat, were completed in October 2009. This modification made an additional 1.2 mi (1.9 km) of spawning habitat available for the June sucker, permitting fish passage farther upstream in the historical range (URMCC 2009, pp. 8-9; JSRIP 2008, p. 12). During the 2010 spawning season, June suckers were observed in the Provo River upstream of the modified Fort Field Diversion structure (UDWR 2011, pp. 7-8). In cooperation with the JSRIP, the CUWCD and URMCC are working with other diverters on the Provo River to evaluate further diversion structure removal or modification.
The JSRIP is also implementing a large-scale stream channel and delta restoration project for the lower Provo River and its interface with Utah Lake, called the Provo River Delta Restoration Project (PRDRP). This project will restore, enhance, and create habitat conditions in the lower Provo River for spawning, hatching, larval transport, rearing, and recruitment of the June sucker to the adult life stage, thus increasing the species' resiliency (Olson
Shortly after formation of the JSRIP, and based on delisting criteria identified in the 1999 June Sucker Recovery Plan (Service 1999, pp. 5-6), several Utah Lake tributaries were evaluated for the purpose of establishing a second spawning run of June sucker in addition to the Provo River spawning run (Stamp
In 2008, the lower 0.5 mi (0.8 km) of Hobble Creek was relocated and reconstructed on land purchased by the JSRIP to provide June sucker spawning habitat, a more naturally functioning stream channel, and suitable nursery habitat for young suckers. The JSRIP partnered with the Utah Transit Authority to implement the habitat restoration project on the purchased property (DOI 2008, p. 14). The project re-created a functioning delta at the interface between Hobble Creek and Utah Lake, and allowed the reestablishment of a June sucker spawning run. The restoration resulted in more active river processes and includes numerous seasonally inundated off-channel ponds, which serve as larval nursery and rearing habitat to increase larval fish growth and survival (DOI 2008, p. 22).
In 2009, June suckers spawned in the restored Hobble Creek, with verified larval production (Landom and Crowl 2010, pp. 1-12), and in 2010, juvenile June suckers (from 2009 spawning) were found in ponds within the Hobble Creek restoration area (Landress 2011, p. 4). Due to the success of the restoration, additional reaches of Hobble Creek have been selected for habitat enhancements to increase the amount of available spawning habitat. For example, approximately 1 mi (1.6 km) upstream of the lower Hobble Creek restoration area, the East Hobble Creek Restoration Project was completed to enhance the stream channel by increasing floodplain width, sinuosity, and floodplain connectivity; modify or remove diversion structures; and provide additional stream flows for Hobble Creek (JSRIP 2016b, p. 17). An age-1 June sucker was observed in this area in January 2018, indicating that June suckers are using this area for rearing (Fonken 2018, pers. comm.).
Improving water quality in Utah Lake is also an important part of enhancing June sucker habitat. In the interest of supporting June sucker recovery through increased water quality, the Utah Division of Water Quality (UDWQ) became a member of the JSRIP in 2017 (JSRIP 2017). As part of the State's commitment to water quality management and improvement in Utah Lake, UDWQ formed a science panel composed of independent experts and representatives of all stakeholder agencies for the express purpose of furthering scientific understanding of the conditions in Utah Lake and creating a comprehensive plan for improvement. This plan will support June sucker recovery by including recommendations for actions and threshold limits of nutrients and other anthropogenic inputs for the benefit of June sucker specifically and the Utah Lake ecosystem as a whole (UDWQ 2017, entire).
The third downlisting criterion requires that nonnative species that present a threat to the continued existence of June sucker are reduced or eliminated from Utah Lake. We consider this criterion met, but ongoing. The common carp was identified as the nonnative species having the greatest adverse impact on June sucker habitat and resiliency, due to the large-scale changes in water quality and macrophytic vegetation caused by these fish (see
In 2009, a mechanical removal program was instituted to remove common carp from Utah Lake. Between 2009 and 2017, over 13,000 tons (11,750 metric tons) of common carp were removed from the lake (UDWR 2017c, p. 2). This removal resulted in a decline of the common carp population. Catch-per-unit effort of common carp has decreased over the past 4 years, while average weight of individual common carp has increased, thus indicating a trend of reduction in common carp density in Utah Lake (Gaeta and Landom 2017, p. 7).
In 2015, after 6 years of common carp removal, native macrophytes were observed in Utah Lake vegetation monitoring studies for the first time (Landom 2016, pers. comm.). As of 2017, multiple sites in the lake have native littoral vegetation, including sites with increasing complexity supporting more than four native macrophytic species at one site (Dillingham 2018, entire). Sites with more complex
The common carp removal program in Utah Lake has a positive impact on habitat quality, which may be contributing to natural recruitment and survival rates for the June sucker (Gaeta and Landom 2017, p. 8; see
The fourth and final downlisting criterion in the June sucker recovery plan is that an increasing, self-sustaining spawning run of wild June sucker resulting in significant recruitment over 10 years has been reestablished in the Provo River. We consider this criterion to be ongoing. This criterion does not define “significant” recruitment. Although the spawning population of June sucker is increasing, annual stocking continues in order to maintain the population. An augmentation plan for the June sucker set a goal, for the purposes of meeting the recovery criterion of a self-sustaining population, of stocking 2.8 million individuals into Utah Lake (Service and URMCC 1998, entire). The goal was based on early studies of June sucker survival and the production capabilities of the facilities. As of 2017, more than 800,000 captive-bred June sucker have been stocked in Utah Lake from the various rearing locations, and a long-term, continued stocking strategy based on the most up-to-date research on stocking success and survival rates is under development (JSRIP 2008, p. 8; UDWR 2017b, p. 6).
Although the June sucker has not yet met this downlisting criterion identified in the 1999 recovery plan, we find that the population increases and trends achieved thus far (see
Overall, recovery actions have addressed many of the threats and stressors affecting the June sucker. The JSRIP has been effective in collaborating to implement a stocking program, increase June sucker spawning locations, acquire and manage water flows, remove nonnative common carp, and develop and conduct habitat restorations that target all life stages of June sucker. Studies are planned to improve understanding of the effects of other threats and stressors, including lake water quality and the impact of other invasive species on the June sucker. The JSRIP continues to be active and committed to full recovery of the June sucker.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”
The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.
We must consider these same five factors in downlisting a species from endangered to threatened. Under our regulations at 50 CFR 424.11(c)-(e), we may downlist a species if, after a review of the species' status, the best available scientific and commercial data indicate that the species no longer meets the definition of an endangered species, but that it meets the definition of a threatened species.
For the purposes of this analysis, we evaluate whether or not the June sucker meets the Act's definition of an “endangered species” or a “threatened species,” based on the best scientific and commercial information available. We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that directly affect individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—with regard to those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species and then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats with regard to those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the Act's definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations
It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.
In our determination, we correlate the threats acting on the species to the factors in section 4(a)(1) of the Act.
The following analysis examines factors currently affecting the June sucker or that are likely to affect it within the foreseeable future. For each factor, we examine the threats at the time of listing in 1986 (or if not present at the time of listing, the status of the threat when first detected), the downlisting criterion pertinent to the threat, what conservation actions have been taken to meet the downlisting criteria or otherwise mitigate the threat, the current status of the threat, and its likely future impact on June sucker. We also consider stressors not originally considered at the time of listing, most notably climate change.
Loss and alteration of spawning and rearing habitat were major factors leading to the listing of the June sucker (51 FR 10851; March 31, 1986) and continue to pose a threat to the species' overall resiliency and its recovery. Suitable spawning and rearing habitat in Utah Lake and its tributaries declined due to water development, habitat modification, introduction of common carp, and urbanization, but has improved since listing due to recovery actions taken by the JSRIP.
Water development and substantial habitat modifications have occurred in the Utah Lake drainage since the mid-1800s. These changes include the reduction in riverine flows (including the Provo River) from numerous water diversions, various water storage projects, channelization, and additional lake and in-stream alterations (Radant
In 1849, settlers founded Fort Utah along the Provo River and began modifying the waters of Utah Lake and its main tributaries (USBR 1989, p. 3). In 1872, a low dam was placed across the lake outflow to the Jordan River, changing the function of Utah Lake into a storage reservoir (CUWCD 2004, p. 2). By the early 1900s, a pumping plant was constructed at the outflow to allow the lake to be lowered below the outlet elevation; this structure has since been modified and enlarged (Andersen
As a storage reservoir, the surface elevation of Utah Lake fluctuates widely. Prior to the influence of water development projects, annual fluctuations averaged 2.1 ft (0.6 m) per year. For approximately 50 years, under the influence of water development projects, water levels fluctuated an average of 3.5 ft (1.0 m) annually prior to the completion of the Central Utah Project. The Central Utah Project was the largest water resources development program in Utah, distributing portions of Utah's share of Colorado River water. After its completion, annual lake fluctuations averaged 2.5 ft (0.8 m) (Hickman and Thurin 2007, p. 20). Fluctuation in surface elevation of Utah Lake (particularly while the Central Utah Project was under construction) is one of the possible factors that contributed to the marked degradation of shoreline habitat and aquatic vegetation in the lake and to a decline in June sucker refugial habitat from predators (Hickman and Thurin 2007, p. 23).
The long history of water management in the Provo River, including river alterations, dredging, and channelization efforts, has modified the historical braided and complex delta into a single trapezoidal channel (Radant
Similar to the Provo River, Hobble Creek and other tributaries of significance (Spanish Fork River and American Fork River) have been extensively modified by human activities. The hydrological regimes are altered by multiple dams and diversions, and the stream channels have been straightened and dredged into incised trapezoidal canals (Stamp
Located south of Provo Bay, the Spanish Fork River is the second largest stream inflow to Utah Lake, but the majority of the discharge is diverted during the irrigation season (June through September; Psomas 2007, p. 12). Adult and larval June suckers occur in the Spanish Fork River (UDWR 2006, p. 2; 2007, p. 2; 2008a, p. 3; 2009a, p. 4; 2010b, p. 2); however, the seasonally inadequate flows, poor June sucker rearing habitat at the Utah Lake interface, low water clarity, diversion structures, and miles of levees along the channel are obstacles to successful recruitment (Stamp
Recovery actions for the June sucker to address impacts from water development and habitat modification have included water acquisition, water flow management, and habitat restoration (see Recovery, above). The availability of quality spawning habitat will improve species resiliency, and multiple spawning tributaries will improve species redundancy. The positive trend in spawning population numbers, increased number of June suckers, and observations of young-of-year and age-1 June suckers in the wild indicate that water acquisition, water flow management, and habitat restoration have had a positive impact on June sucker reproduction (JSRIP 2018, p. 1; see
Historically, Utah Lake had a rich array of rooted aquatic vegetation, which provided nursery and rearing habitat for young June suckers (Heckmann
Rapid urbanization on the floodplains of Utah Lake tributaries stimulated extensive flood and erosion control activities in lake tributaries and reduced available land for the natural meandering of the historical river channels (Stamp
Among the potential impacts from continued urbanization near Utah Lake is the potential for the construction of bridges or other transportation crossings. One example is the Utah Crossing project, a causeway across Utah Lake proposed in 2009 (Service 2009, entire). An updated application for the project to proceed has not been filed with Utah's Department of Transportation; however, as development continues on the western side of Utah Lake, the potential need for some type of crossing may increase.
A large-scale project to dredge Utah Lake, remove invasive species, and build habitable islands for private development was proposed in 2017, and is under early stages of planning and review at the State level (ULRP 2018, entire). This project has not received any approval or necessary permits at the State or Federal level. We do not expect this Utah Lake Restoration Project or the Utah Crossing project to move forward or impact the June sucker in the next 5-10 years. All development projects on Utah Lake are subject to Federal and State laws, and require consultation with the Service prior to beginning work. However, such projects could potentially impact the June sucker by increasing habitat for predatory fish and restricting June sucker movement in Utah Lake (Service 2009, entire). Additional impacts to water quality due to the runoff from new structures could also pose a threat to the June sucker (Service 2009, entire). The UDWQ is partnering with the Utah Lake Commission and other stakeholders to research and provide recommendations to improve water quality and address impacts of urbanization and other factors that may negatively impact future water quality (UDWQ 2017, entire).
Utah Lake is hypereutrophic, characterized by frequent algal blooms and high turbidity (Merritt 2004, p. 14; Psomas 2007, p. 12). The increased turbidity, decreased water quality, and historical change in the plant community from macrophyte-dominated to algae-dominated (see
High turbidity decreases the feeding ability of many species of planktivorous fish (Brett and Groot 1963, pp. 5-6; Vinyard and O'Brien 1976, p. 3), and can result in a lack of access to sufficient food for rearing juveniles. Thus, elevated turbidity levels may decrease feeding efficiency of June suckers by limiting their ability to visually prey on preferred plankton food types.
Utah Lake is listed on Utah's 2016 section 303(d) list for exceedance of State criteria for total phosphorus and TDS concentrations (UDWQ 2018, p. 3-7). The majority of the total phosphorus load to Utah Lake is from point sources. Although Utah Lake has naturally elevated salinity levels compared to other intermountain freshwater lakes, the concentrations are substantially higher today than they were before human development (Psomas 2007, p. 8). Within Utah Lake, natural salinity levels are due in part to high evaporation rates, which are a function of the lake's large surface-area-to-depth ratio and drainage basin characteristics. Evaporation naturally removes about 50 percent of the total volume of water that flows into the lake, resulting in a doubling of the mean salt concentration in water passing through the lake (Fuhriman
In addition, several natural mineral springs near the shores of Utah Lake contribute dissolved salts, although the magnitude and effect of these sources has not been quantitatively evaluated (Hatton 1932, p. 2). Evaporative losses continue to be the main driver of salinity concentrations in Utah Lake. However, settlement and development of the Utah Lake basin since the 1800s led to increases in irrigation return flows containing dissolved salts, which likely exacerbated natural salinity concentrations within Utah Lake (Sanchez 1904, p. 1). Despite the human influences on inflows, in recent years, salinity levels in Utah Lake have not
The effects of increased salinity concentrations on the various life stages of June suckers are unknown. Egg size, hatching success, and mean total length of larvae decreased as salinity levels increased for another lake sucker that occurs in Nevada, the cui-ui (
Natural nutrient loading to the lake is high due to the nutrient- and sediment-rich watershed surrounding the lake (Fuhriman
Although there is a significant amount of research indicating that algal blooms can be harmful to many types of fish, we do not have direct evidence regarding the degree or manner in which they impact June suckers in Utah Lake (Psomas 2007, p. 14; Crowl 2015, entire). No fish kills were documented during recent bloom events, but post-stocking monitoring of June sucker has noted that, during algal blooms, fish movement decreased measurably (Goldsmith
The average Utah Lake TDS concentration is about 900 parts per million (ppm)/milligrams per liter (mg/L), but large variations occur, depending on the water year (Hickman and Thurin 2007, p. 9). There is no evidence of direct mortality to June suckers due to higher salinity levels, but it is possible that increased salinity, when combined with increased nutrient input and turbidity, may negatively affect June suckers by reducing zooplankton and refugial habitat abundance as described above. Further study of June sucker responses during high salinity events is needed to better understand this relationship.
Water quality concerns in Utah Lake are being addressed through a large-scale study and the formation of a steering committee and science panel to develop recommendations for Utah Lake water quality for the benefit of June sucker (UDWQ 2017, entire).
Prior to 1986, the year in which we listed the June sucker, riverine water quality was heavily impacted by water withdrawal, agricultural and municipal effluents, and habitat modification. The water withdrawals reduced the ability of the rivers to effectively transport sediments and other materials from the river channel. Furthermore, withdrawals influenced temperature, dissolved oxygen, and pollutant and nutrient concentrations (Stamp
Artificially high temperatures may also occur in streams where flow regime alterations and channelization have limited the recruitment of woody riparian vegetation, thereby reducing the amount of streamside shading (Stamp
The Provo River is listed on Utah's 2016 section 303(d) list for impairments harmful to cold-water aquatic life. Additionally, water quality is poor in the river's lower reaches during summer low-flow periods due to low dissolved oxygen levels and elevated temperatures (Stamp
Hobble Creek is not on the Utah section 303(d) list as an impaired waterbody. However, there are indications that total phosphorus and temperature may be problematic in Hobble Creek during certain times of the year (Stamp
The predicted increase in global average temperatures is expected to negatively affect water quality in shallow lakes (Mooij
In Utah, an increase in the intensity of naturally occurring future droughts and unprecedented warming are
As changes to water availability and timing occur in the future, the JSRIP will need to coordinate reservoir operations to ensure timely releases. If runoff and upstream reservoir volumes are insufficient, peak and base flows desired in spawning tributaries will be reduced. This, in turn, would negatively impact the early season attractant flows needed by spawning adults, and potentially limit flows needed by larval suckers to move into downstream rearing habitats. As previously described, the JSRIP partnership has acquired 13,000 acre-ft (16,035,240 m
Water development and habitat modification, common carp, urbanization, and water quality are threats to the June sucker. Additionally, potential increased temperatures and decreased precipitation caused by climate change may impact water quality. However, since the time of listing in 1986, the JSRIP partnership has implemented the following recovery actions: (1) 13,000 acre-ft of permanent water for instream flows are secured to benefit the June sucker; (2) a mechanism for annually recommending and providing flows for June sucker spawning was implemented; (3) the common carp population was suppressed, resulting in measurable habitat improvement in Utah Lake; (4) the impacts of urbanization are being considered through active research and planning; (5) a landscape-scale stream channel and delta restoration for the Provo River is being implemented; and (6) future water quality and availability are actively being studied and prioritized by the JSRIP, UDWQ, and the Utah Lake Commission (see Recovery, above). We find that the severity of these threats has decreased since the time of listing; adaptive management of these threats is ongoing, and increased resiliency and redundancy are evident as indicated by increasing survival rates and overall population numbers.
Commercial fishing, including fishing for June suckers, was historically an important use of Utah Lake (Heckman
Neither disease nor the presence of parasites were considered threats to the June sucker at the time of listing (51 FR 10851; March 31, 1986). Although parasites likely exist in June sucker habitat, there is no evidence that June suckers at the individual or population levels are compromised by the presence of parasites. Fish health inspections are regularly conducted on June suckers at the FES hatchery and in Red Butte Reservoir, and no known pathogens have been detected (JSRIP 2018c, entire). At this time, the best available information does not indicate that the presence of parasites or disease negatively affects the June sucker.
Predation by nonnative fishes poses a threat to the successful recruitment of young suckers into the spawning adult life stage (Radant and Hickman 1984, p. 6) and was a major factor for listing the June sucker as endangered (51 FR 10851; March 31, 1986). The introduction of predatory nonnative fishes significantly altered the native Utah Lake fish assemblage. Historically, Bonneville cutthroat trout (
Predation by nonnative fishes primarily targets the early life stages of June suckers. Adult June suckers are larger than the gape size of the average predatory fish and, therefore, are significantly less vulnerable. At the time of listing, the effects of predation were exacerbated by the lack of vegetated refuge habitat within Utah Lake.
White bass may have the highest potential to limit recruitment of young suckers into the spawning adult population (SWCA 2002, p. 132; Landom
The recent illegal introduction of northern pike in Utah Lake raises concerns similar to white bass. Northern pike predominantly feed on juvenile fish; predation on adults is less than 1 percent (Reynolds and Gaeta 2017, p. 12). Thus far, the number of northern pike in the lake has not measurably increased, and active removal efforts continue to suppress populations (Reynolds and Gaeta 2017, p. 13). However, a northern pike population model shows potential for a high degree of population increase with potential for a high negative impact on the June sucker population by the year 2040 (Gaeta
While predation from nonnative species remains a threat, spawning populations of June suckers and the number of untagged fish (
In addition to nonnative predatory fishes, avian predation on June suckers has been documented and primarily occurs when stocked June suckers are first released into the lake (Goldsmith
Under this factor, we examine the stressors identified within the other factors as ameliorated or exacerbated by any existing regulatory mechanisms or conservation efforts. Section 4(b)(1)(A) of the Act requires that the Service take into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect endangered or threatened species. We consider relevant Federal, State, and Tribal laws, regulations, and other such binding legal mechanisms that may ameliorate or exacerbate any of the threats we describe in threat analyses under the other four factors or otherwise enhance the species' conservation. Our consideration of these mechanisms is described below.
As a listed species, the primary regulatory mechanism for protection of the June sucker is through section 9(a) of the Act, as administered by the Service, which broadly prohibits import, export, take (
The Act will continue to provide protection to the June sucker after downlisting to threatened status, for as long as it remains on the List. The June sucker and its habitat will also continue to receive consideration and protection through the other regulatory mechanisms discussed below.
The NEPA requires Federal agencies to evaluate the potential effects of their proposed actions on the quality of the human environment and requires the preparation of an EIS whenever projects may result in significant impacts. Federal agencies must identify adverse environmental impacts of their proposed actions and develop alternatives that undergo the scrutiny of other public and private organizations as a part of their decision-making process. However, impacts may still occur under NEPA, and the implementation of conservation measures is largely voluntary. Actions evaluated under NEPA only affect the June sucker if they address potential impacts to the species or its habitat.
The Fish and Wildlife Coordination Act (16 U.S.C. 661
Section 101(a) of the Federal Water Pollution Control Act (
The Clean Water Act requires every State to establish and maintain water quality standards designed to protect, restore, and preserve water quality in the State. However, Utah Lake has failed to meet water quality standards due to exceedance of total phosphorus and TDS concentrations (Psomas 2007, p. 11), and it is listed as a section 303(d) “impaired” water (Utah Lake Commission 2018, p. 7). Poor water quality in Utah Lake could alter food availability for the June sucker and contribute to increases in harmful algal bloom events and toxin concentrations from those events, which could increase the risk of large-scale June sucker mortality events. To meet Clean Water Act requirements, the UDWQ and the Utah Lake Commission are studying water quality in Utah Lake. They have a steering committee and science panel for the purposes of providing recommendations to improve water quality standards in Utah Lake (Utah Lake Commission 2018, entire).
June suckers receive some protections at the State level. Under Utah Administrative Code R657-14-8, June suckers may not be harvested, and if caught must be immediately returned alive and unharmed to the water from which they were taken.
When this rule is effective (see
The June sucker faces threats primarily from degraded habitat and water quality, water availability, predation from nonnative species, and urbanization. Furthermore, existing regulatory mechanisms do not adequately address these threats. The June sucker also faces a future threat of climate change, which may exacerbate other existing threats. These factors may act cumulatively on the species. For example, urbanization can result in increased pressure on existing water resources as well as degraded water quality, which, when combined with rising temperatures and decreased rainfall, can result in less available water, increased water temperatures, and decreased habitat quality. These factors can cause reduced availability of food for the June sucker, decreased reproductive success, and increased mortality.
However, since the time of listing (51 FR 10851; March 31, 1986), all of the identified threats to the June sucker have either improved measurably or are being adaptively managed according to the best available scientific information for the benefit of the June sucker (see Recovery, above). Conservation measures, including establishing refuge populations, stocking of June suckers in Utah Lake, habitat restoration projects on spawning tributaries, and nonnative fish removal, have resulted in increased numbers of June suckers in the lake, evidence of wild reproduction, and improved habitat within the lake and its tributaries. As a result, resiliency, redundancy, and representation have all improved. Continued research and monitoring provide an avenue to respond to new and evolving threats, such as the effects of climate change, to recovery progress. The existence of refuge populations ensures that, should a stochastic event or extreme combination of existing threats greatly impact the population in Utah Lake, the June sucker would not become extinct.
This resilience to the cumulative threats is due largely to the actions of an active, committed, and well-funded recovery partnership. The JSRIP is the driving force behind the reduction in threats, habitat improvement, and population augmentation, and the JSRIP is able to adaptively manage new stressors as they arise. The improvement of conditions and success of the JSRIP can be measured via the increased number of spawning June suckers, the positive population trend, and the high level of year-to-year survival.
In the proposed rule published in the
In accordance with our joint policy on peer review published on July 1, 1994 (59 FR 34270) and our August 22, 2016, memorandum (USFWS 2016, entire) updating and clarifying the role of peer review of listing actions under the Act, we solicited expert opinion from three knowledgeable individuals with scientific expertise and familiarity with the June sucker, its habitat, its biological needs and potential threats, or principles of conservation biology. The purpose of peer review is to ensure that our listing and reclassification determinations are based on scientifically sound data, assumptions, and analyses. We received responses from two peer reviewers.
We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the proposed downlisting of the June sucker. The peer reviewers provided additional information, clarifications, and suggestions to improve the final rule, which we include in this rule or address in the responses to comments below. One peer reviewer favored the downlisting of the June sucker and provided only small, technical edits to the document. The other peer reviewer also provided technical edits and suggestions. This reviewer also expressed concern that there was not enough detail in the proposed rule to determine whether June sucker meets the definition of a threatened species, and stated that many of the known threats should be more thoroughly mitigated before downlisting should be considered. Substantive comments from this reviewer are addressed below, and minor editorial comments were resolved in the text of the rule itself.
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The legal standard for downlisting is whether the species meets the definition of a “threatened species” that is, it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Due to an exceptional track record and proven recovery measures, we are assured that the commitment of our partners and the JSRIP will continue, recovery actions and responses to threats will be implemented, and the existing agreements mean that June sucker is no longer currently in danger of extinction through all or a significant portion of its range. The reviewer's comments regarding downlisting criteria more closely represent the definition of full recovery and delisting than for downlisting the species to threatened status.
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We received 19 letters from the public that provided comments on our November 26, 2019, proposed rule (84 FR 65080). Twelve of the commenters expressed their explicit support for the proposed downlisting, and three expressed their opposition to it. Four commenters either did not explicitly state their position or expressed general concerns that threats should be addressed if the June sucker is to be downlisted. Relevant and substantive public comments that have not been addressed through changes to the text are addressed in the following summary.
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As explained above under Summary of Comments and Recommendations, we made several changes in this final rule in response to public comments we received on our November 26, 2019, proposed rule (84 FR 65080). The primary changes are to add exceptions to the prohibitions on take in the 4(d) rule for recreational fisheries management and for education and outreach. See “Recreational Fisheries Management” and “Education and Outreach,” under
Additionally, in response to a peer-review comment, in this final rule, we do not attempt to extrapolate the number of recorded spawning June suckers into a full population estimate; we have removed all references to a population estimate in this document and clarified the nature of the numbers provided. We also cite more recent information (published since the November 26, 2019, publication of the proposed rule), where it is relevant, in this final rule.
Finally, we made nonsubstantive, editorial changes, such as to explain a cross-reference to other regulations, to the text of the 4(d) rule to improve its clarity.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
As required by the Act, we considered the five factors in assessing whether the June sucker is an endangered or threatened species throughout all of its range. We carefully examined the best scientific and commercial information available regarding the past, present, and future threats faced by the June sucker. We reviewed the information available in our files and other available published and unpublished information, and we consulted with recognized experts and State agencies. We evaluated the changes in resiliency, redundancy, and representation for the June sucker since the time of listing (51 FR 10851; March 31, 1986).
June sucker resiliency has improved since the time of listing, with an increase in the wild spawning population of at least ten-fold, a positive population trend, and increases in both the quality and quantity of habitat. We project that these conditions will continue to improve based on plans to continue successful management actions and implement new projects, such as the PRDRP and the Utah Water Quality Study. Redundancy in June sucker is assured by the existence of two new populations, including the refuge population maintained at FES hatchery and an additional naturally self-sustaining population in Red Butte Reservoir, as well as the presence of water flows in at least two spawning tributaries each year (Provo River and Hobble Creek), with up to five spawning tributaries available in good water years. Prior to the June sucker's listing, there were no refuge populations, and in low water years, there might be no available spawning tributaries with water throughout the summer. Representation for the June sucker exists in the form of genetic diversity in the breeding and stocking program, which has preserved a high degree of genetic variation in the fish stocked in Utah Lake since listing. Based on these elements, we find that overall viability for the June sucker has improved since the time of listing.
Factor B is not considered a threat to the June sucker due to the fact that harvest and collection of the species are strictly regulated and very limited. June suckers are affected by loss and degradation of habitat (Factor A), predation (Factor C), and other effects of human activities, including climate change (Factor E). Existing regulatory mechanisms outside of the Act (Factor D) do not address all the identified threats to the June sucker, as indicated by the fact that these threats continue to affect the species throughout its range. However, recovery actions have significantly improved viability of the June sucker and reduced the immediacy of these threats.
After evaluating threats to the species and assessing the cumulative effects of the threats under the section 4(a)(1) factors, we find that the threats of loss and degradation of habitat (Factor A), predation (Factor C), and other effects of human activities including climate change (Factor E) are still acting on the June sucker. Existing regulatory mechanisms outside of the Act (Factor D) do not address all the identified threats to the June sucker, as indicated by the fact that these threats continue to affect the species throughout its range, although with less intensity than at the time of listing (51 FR 10851; March 31,
Based solely on biological factors, we consider 25 years to be the foreseeable future within which we can reasonably determine that the future threats and the June sucker's response to those threats is likely. This time period includes multiple generations of the species and allows adequate time for impacts from conservation efforts or changes in threats to be indicated through population response.
The foreseeable future for the individual threats vary. Management and recovery progress of the population and its threats are overseen by the JSRIP. The charter of this program states that the purpose of the JSRIP is to recover the June sucker to the point at which it no longer requires protections under the Act, and to do so based on recovery guidance provided by the Service using the best available scientific and biological information in an adaptive management approach. Because the JSRIP is committed to achieving recovery and the partners have committed to continued funding, threats to the June sucker will continue to be adaptively managed by the JSRIP until such time as we find it no longer requires protections under the Act. For at least as long as the species remains listed, the JSRIP will continue to manage June sucker threats and population health and trends in an adaptive way, ensuring that the species is extremely unlikely to go extinct. The Service will then rely on management actions that have been put in place by the JSRIP, and other factors such as a population viability analysis, habitat improvements, and future long-term agreements, when delisting is being considered. This long-term management (
Although population numbers have increased and the intensity of the identified threats have decreased, our analysis indicates that, because of the remaining threats and stressors, the species meets the Act's definition of a threatened species. Thus, after assessing the best available information, we conclude that the June sucker is not currently in danger of extinction, but is still likely to become endangered within the foreseeable future throughout all of its range.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in
Following the court's holding in
The June sucker is a narrow endemic that functions as a single, contiguous population and occurs within a small area that includes one lake and associated tributaries. Thus, there is no biologically meaningful way to break this limited range into portions, and the threats that the species faces affect the species throughout its entire range. This means that no portions of the species' range have a different status from its rangewide status. Therefore, no portion of the species' range can provide a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts' holdings in
Our review of the best available scientific and commercial information indicates that the June sucker does not meet the definition of an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act, but does meet the definition of a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act. Therefore, we are downlisting the June sucker in the List of Endangered and Threatened Wildlife from endangered to threatened.
It is our policy, as published in the
Section 4(d) of the Act contains two sentences. The first sentence states that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see
Exercising this authority under section 4(d), we have developed a species-specific 4(d) rule that is designed to address the June sucker's specific threats and conservation needs. Although the statute does not require us to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the June sucker. As discussed under Summary of Factors Affecting the Species, we conclude that the June sucker is no longer at risk of extinction, but is still likely to become so in the foreseeable future, primarily due to the identified threats of water development, habitat degradation, and the introduction of nonnative species. The provisions of this 4(d) rule promote conservation of the June sucker by encouraging management of the Utah Lake system in ways that meet the conservation needs of the June sucker while taking into consideration the stakeholders' needs. The provisions in this rule are some of many regulatory tools that we will use to promote the conservation of the June sucker.
This 4(d) rule provides for the conservation of the June sucker by prohibiting the following activities, with certain exceptions (discussed below): Importing or exporting; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; and selling or offering for sale in interstate or foreign commerce. In addition, anyone taking, attempting to take, or otherwise possessing a June sucker, or parts thereof, in violation of section 9 of the Act will be subject to a penalty under section 11 of the Act, with certain exceptions (discussed below). Under section 7 of the Act, Federal agencies must continue to ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of the June sucker.
Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Allowing incidental and intentional take in certain cases, such as for the purposes of scientific inquiry, monitoring, or to improve habitat or water availability and quality, would help preserve a species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors.
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve the June sucker that may result in otherwise prohibited take without additional authorization.
As discussed above under Summary of Factors Affecting the Species, nonnative species, water development, and habitat degradation affect the status of the June sucker. A range of conservation activities, therefore, have the potential to benefit the June sucker, including nonnative fish removal, habitat restoration projects, monitoring of June sucker, management of recreational fisheries, June sucker research projects, educational and outreach efforts, and maintenance of June sucker refuges and stocking programs. Accordingly, this 4(d) rule addresses activities to facilitate conservation and management of the June sucker where they currently occur and may occur in the future by excepting them from the Act's take prohibition under certain specific conditions. These activities are intended to increase management flexibility and encourage support for the conservation and habitat improvement of the June sucker. Under this 4(d) rule, take will continue to be prohibited, except for actions allowed in this 4(d) rule, provided the actions are approved by the Service, in coordination with any existing designated recovery program (
• Incidental take resulting from activities intended to reduce or eliminate nonnative fish, including, but not limited to, common carp, northern pike, and white bass, from Utah Lake or its tributaries.
• Incidental take resulting from habitat restoration projects or projects that allow for the increase of instream flows in Utah Lake tributaries, such as diversion removals.
• Incidental take resulting from monitoring of June sucker in Utah Lake and its tributaries.
• Incidental take resulting from monitoring and management of recreational sportfish populations in Utah Lake and its tributaries.
• Incidental and direct take resulting from research projects to study factors affecting June sucker or its habitat for the purposes of providing management recommendations or improved condition of June sucker.
• Incidental and direct take resulting from educational or outreach efforts to increase public awareness, engagement, and support for June sucker recovery efforts.
• Incidental and direct take resulting from maintaining June sucker refuges and stocking population, and from moving June sucker for the purposes of stocking them in Utah Lake.
These forms of allowable take are explained in more detail below. For all forms of allowable take, reasonable care must be practiced to minimize the impacts from the actions. Reasonable care means limiting the impacts to June sucker individuals and populations by complying with all applicable Federal, State, and Tribal regulations for the activity in question; using methods and techniques that result in the least harm, injury, or death, as feasible; undertaking activities at the least impactful times (
Incidental take is allowed where it results from activities intended to reduce or eliminate nonnative fish, including, but not limited to, common carp, northern pike, and white bass, from Utah Lake or its tributaries. Control of nonnative fish is vital for the continued recovery of June sucker. Control of nonnative fish is primarily conducted with mechanical removal via commercial seine netting and, to a limited extent, through angling (for northern pike). Other methods, including the use of genetically modified nonnative fish and electrofishing to reduce existing populations, may be implemented in the future.
This 4(d) rule defines nonnative fish removal as any action with the primary or secondary purpose (such as the introduction of genetically engineered nonnative fish as part of an elimination strategy) of removing nonnative fish from Utah Lake and its tributaries that compete with, predate upon, or degrade the habitat of the June sucker. These removal methods must be approved by the Service in writing (by letter or email), in coordination with an existing designated recovery program (
Incidental take resulting from habitat restoration projects or projects that increase instream flows in Utah Lake tributaries is allowed under this 4(d) rule. Habitat restoration projects are needed to provide additional spawning and rearing habitat and refugia for June sucker. Improvements in the ability to obtain and deliver water to any of the known spawning tributaries will allow for improved spawning conditions, entrainment of June sucker larvae for development, and periodic high flows providing scouring of spawning habitats. This 4(d) rule defines habitat restoration or water delivery improvement projects as any action with the primary or secondary purpose of improving habitat conditions in Utah Lake and its tributaries or improving water delivery and available instream flows in spawning tributaries. These projects must be approved by the Service in writing, in coordination with any existing designated recovery program, for that purpose. Examples of planned or suggested projects where incidental take is allowed to occur include the Provo River Delta Restoration Project and the removal of water diversion structures from the Provo River and Hobble Creek.
This 4(d) rule allows incidental take associated with any method used to detect June suckers in the wild for the purposes of better understanding population numbers, trends, or response to stressors that is not intended to be destructive, but that may unintentionally cause harm or death. Monitoring of June suckers is vital to understanding the population dynamics, health, and trends; for measuring the success of the stocking program; for evaluating impacts from threats; and for evaluating recovery actions that address threats to the species. With the use of PIT tag technology, monitoring is becoming less disruptive to the June sucker. However, many monitoring methods, including the initial PIT tagging of individuals, may accidentally harm fish or result in death. In addition to PIT tag readers, methods that may be used to detect June suckers in the wild include trammel netting, spotlighting, minnow trapping, trap netting, gill-netting, electrofishing, and seining. Any monitoring activities not conducted by the State or under the State's section 6 permit must be approved by the Service in writing and be conducted in coordination with any existing designated recovery program.
Recreational fisheries monitoring actions conducted by the State are allowed to cause incidental take of June suckers through this 4(d) rule, provided that, whenever possible, June suckers that are caught alive as part of recreational fisheries are returned to their source as quickly as possible. These activities do not include fishing or other recreational activities conducted by private individuals but only those conducted by the State to manage fisheries in Utah Lake. Covered activities are those that do not occur in June sucker spawning habitat during the season of use or rearing habitat at any time of year, and are designed to count or capture recreational sport fish only. According to the interagency “Policy for Conserving Species Listed or Proposed for Listing Under the Endangered Species Act While Providing and Enhancing Recreational Fisheries
This 4(d) rule defines June sucker research allowed to cause take as any activity undertaken for the purposes of increasing our understanding of June sucker biology, ecology, or recovery needs under the auspices of UDWR, a recognized academic institution, or a qualified scientific contractor and approved by the Service in writing, in coordination with any existing designated recovery program, as a necessary and productive study for June sucker recovery. Additional research is needed on June sucker biology, ecology, habitat needs, predators, and response to threats in order to improve the species' status and provide recommendations for population management, habitat improvement, and threat reduction. Research may involve capture of June suckers using methods described above, or a variety of other activities to study water quality, nonnative fishes, lake and riverine ecosystems, tributary flows, habitat, or other factors affecting June suckers that may impact individual fish inadvertently. In some cases, lethal sampling of June suckers for research purposes may be necessary and appropriate.
This 4(d) rule defines June sucker educational and outreach actions allowed to cause take as any activity undertaken for the purposes of increasing public awareness of June sucker biology, ecology, or recovery needs and their positive effects on Utah Lake and its tributaries (
Education and outreach are a vital part of June sucker recovery progress. Public awareness of June sucker biology and ecology helps foster support for the recovery program's activities in and around Utah Lake. Increasing the prevailing understanding of how recovery activities for June suckers improve the health, function, beauty, and quality of Utah Lake for sport fishers, recreationists, and the surrounding community will strengthen support for continued conservation of the fish. It will also serve to counteract common and incorrect narratives that the protection of the June sucker is responsible for preventing positive activities and development in and around Utah Lake. This is particularly important during the upcoming PRDRP construction, in order to tie the recovery of the fish to meaningful improvements in ecological conditions and amenities for the public at Utah Lake.
This 4(d) rule defines June sucker stocking and refuge maintenance as any activity undertaken for the long-term maintenance of the June sucker at facilities outside of Utah Lake and its tributaries or for the production of June suckers for stocking in Utah Lake. Take could occur from necessary facility maintenance or water management, including at Red Butte Reservoir and its downstream drainages. Any breeding, stocking, or refuge program must be approved by the Service in writing, in coordination with any existing designated recovery program. Any June sucker breeding program shall be in compliance with all applicable regulations and best hatchery and fishery management practices as described in the American Fisheries Society's Fish Hatchery Management (Wedemeyer 2002).
Maintaining refuge populations and stocking the June sucker in Utah Lake is an integral part of June sucker recovery. The process of breeding, rearing, growing, maintaining, and stocking June suckers may result in take at all life stages, but the benefits to the species far outweigh any losses. At the present time, one facility (FES hatchery) breeds the June sucker for stocking in Utah Lake; this facility also functions as the designated refuge population for June sucker. In addition to the hatchery, FES uses offsite ponds as a grow-out facility to allow fish to reach a larger size before they are stocked in Utah Lake because this significantly increases survival upon release (Burgad
Nothing in this 4(d) rule changes in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or our ability to enter into partnerships for the management and protection of the June sucker. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between us and other Federal agencies, where appropriate.
We have determined that environmental assessments and EISs, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994, (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal
A complete list of all references cited in this final rule is available at
The primary authors of this final rule are staff members of the Service's Regions 5 and 7 and the Utah Ecological Services Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we hereby amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(cc) June sucker (
(1)
(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.
(2)
(i) Conduct activities as authorized by an existing permit under § 17.32.
(ii) Conduct activities as authorized by a permit issued prior to February 3, 2021 under § 17.22 for the duration of the permit.
(iii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife.
(iv) Take, as set forth at § 17.31(b).
(v) Take June suckers while carrying out the following legally conducted activities in accordance with this paragraph (cc)(2)(iv):
(A)
(
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(B)
(
(
(
(
(
(
(
(vi) Possess and engage in other acts with unlawfully taken endangered wildlife, as set forth at § 17.21(d)(2).
(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.