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U.S. Citizenship and Immigration Services, Department of Homeland Security and Office of the Secretary, Department of Labor.
Direct final rule; withdrawal.
Due to the receipt of a significant adverse comment, the Department of Homeland Security and the Department of Labor (Departments) are jointly withdrawing the January 4, 2021, direct final rule (DFR) that would have extended 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 made 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.
As of February 2, 2021, the direct final rule published at 86 FR 1 on January 4, 2021, is withdrawn.
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.
In the DFR, the Departments stated that if a significant adverse comment was submitted by January 19, 2021, the Departments would publish a timely withdrawal in 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.
Board of Governors of the Federal Reserve System (Board).
Final rule.
The Board is adopting a final rule (final rule) to tailor the requirements in the Board's capital plan rule (capital plan rule) based on risk. Specifically, as indicated in the Board's October 2019 rulemaking that updated the prudential framework for large bank holding companies and U.S. intermediate holding companies of foreign banking organizations (tailoring framework), the final rule modifies the capital planning, regulatory reporting, and stress capital buffer requirements for firms subject to “Category IV” standards under that framework. To be consistent with recent changes to the Board's stress testing rules, the final rule makes other changes to the Board's stress testing rules, Stress Testing Policy Statement, and regulatory reporting requirements, such as the assumptions relating to business plan changes and capital actions and the publication of company-run stress test results for savings and loan holding companies. The final rule also applies the capital planning and stress capital buffer requirements to covered saving and loan holding companies subject to Category II, Category III, and Category IV standards under the tailoring framework.
The final rule is effective April 5, 2021.
Constance Horsley, Deputy Associate Director, (202) 452-5239, Mark Handzlik, Manager (202) 475-6316, Sean Healey, Lead Financial Institution Policy Analyst, (202) 912-4611, Hillel Kipnis, Senior Financial Institution Policy Analyst II, (202) 452-2924, John Simone, Senior Financial Institution Policy Analyst II, (202) 245-4256, Brendan Rowan, Senior Financial
Stress testing is a core element of the Board's regulatory framework and supervisory program for large firms. Stress testing enables the Board to assess whether large firms have sufficient capital to absorb potential losses and continue lending under severely adverse conditions. Experience has demonstrated that rigorous stress testing—together with stronger capital requirements implemented in the Board's capital rule—have significantly improved the resilience of the U.S. banking system.
The Board implemented its capital plan rule to require large firms to develop and maintain capital plans supported by robust processes for assessing their capital adequacy, in 2011.
In March 2020, the Board adopted a final rule (stress capital buffer rule) to integrate its capital plan rule and regulatory capital rule through the establishment of a stress capital buffer requirement, creating a single, risk-sensitive framework for large banking organizations.
The stress capital buffer rule included several changes to the assumptions embedded in the supervisory stress test, notably removing the assumption that firms make all planned common distributions and excluding material business plan changes from the stress capital buffer requirement calculation. Previously, under the Comprehensive Capital Analysis and Review (CCAR), the Board assumed that a firm would continue to make all planned dividends and share repurchases under stress, and therefore required firms to pre-fund nine quarters of planned dividends and share repurchases. Under the stress capital buffer rule, the Board no longer assumes that a firm would continue to make all planned dividends and share repurchases under stress. The stress capital buffer requirement includes four-quarters of planned dividends in a firm's capital buffer requirements; therefore, firms are subject to a pre-funding requirement of four quarters of planned dividends. This approach recognizes the capital rule's automatic limitations on capital distributions while continuing to promote forward-looking capital planning and mitigate pro-cyclicality.
Prior to the implementation of the stress capital buffer rule, the impact of expected material changes to a firm's business plan were incorporated into a firm's CCAR results. In order to simplify the stress test framework and to reduce burden, material business plan changes are not included in the stress capital buffer requirement. Instead, material changes to a firm's business plan resulting from a merger or acquisition are incorporated into a firm's capital and risk-weighted assets upon consummation of the transaction.
In October 2019, the Board issued a final rule that established a revised framework for applying prudential standards to large firms to align prudential standards more closely to a large firm's risk profile (tailoring rule).
The tailoring rule made two changes to the stress testing rules for firms subject to Category IV standards. First, the tailoring rule removed the requirement for firms subject to Category IV standards to conduct and publicly disclose the results of company-run stress tests as defined in the Board's stress testing rules. Second, the tailoring rule changed the frequency of the supervisory stress test for firms subject to Category IV standards from annual to biennial.
As a part of the tailoring rule, covered savings and loan holding companies were made subject to the Board's supervisory stress test and company-run stress test requirements in the same manner as comparable bank holding companies. In the tailoring rule, the Board indicated that it would apply capital planning requirements to savings and loan holding companies as part of a separate notice.
On October 7, 2020, the Board issued a proposed rule (proposed rule or proposal) that would have modified the Board's capital planning and stress capital buffer requirements to be more consistent with the tailoring framework.
The proposal included changes to the Board's supervisory stress test and the company-run stress test rules.
The proposal also solicited comment on several topics, including the Federal Reserve's guidance on capital planning, a definition of “common stock dividend” for purposes of the capital plan rule, and the application of capital planning and stress capital buffer requirements to savings and loan holding companies.
The Board received thirteen comment letters from banking organizations, public interest groups, trade associations, and individuals. While many commenters were supportive of the proposal, some commenters opposed or requested additional clarification on parts of the proposed rule, including the changes related to capital planning requirements, the calculation and timing of the stress capital buffer requirement, and regulatory reporting changes for firms subject to Category IV requirements. In addition, commenters provided input on the Board's capital planning guidance, a definition of a common stock dividend for purposes of the capital plan rule, and the application of capital planning and stress capital buffer requirements to savings and loan holding companies. The Board's responses to the comments are provided in the discussion of the final rule. The Board also received several comments on issues not related to the proposal, which are not addressed below as they are outside the scope of this rulemaking.
Consistent with the proposal, the final rule revises the capital planning requirements for firms subject to Category IV standards to better align such requirements with the risk profiles of these firms. Specifically, the final rule removes the requirement for firms subject to Category IV standards to provide projections in a firm's capital plan under the supervisory scenarios and the requirement to submit FR Y-14A schedules associated with company-run stress test results. The final rule also replaces the use of “large and noncomplex bank holding company” with the definition of a firm subject to Category IV standards.
The final rule requires the stress test portion of the stress capital buffer requirement of a firm subject to Category IV standards to be updated in a manner consistent with the frequency of the supervisory stress test. The stress test portion of such a firm's stress capital buffer requirement will not be updated in a year in which it does not participate in the supervisory stress test. The final rule allows such a firm to elect to opt-in to a stress test in a year in which the firm would not generally be subject to the supervisory stress test and to receive an updated stress capital buffer requirement in that year.
The final rule adopts the proposed changes to the Board's supervisory stress test and the company-run stress test rules, which clarify the assumptions firms and the Federal Reserve should make regarding the effects of material business plan changes in their stress test results and require certain savings and loan holding companies to publicly disclose their stress tests results.
The final rule also applies capital planning and stress capital buffer requirements to covered saving and loan holding companies subject to Category II, Category III, or Category IV standards under the tailoring framework.
Consistent with section 401(e) of EGRRCPA, the tailoring rule adjusted the frequency of supervisory stress testing for firms subject to Category IV standards to every other year and eliminated the requirement to conduct and publicly disclose the results of a company-run stress test under the scenarios provided by the Board. These adjustments reflected the lower risk profile of a firm subject to Category IV standards relative to firms subject to Category I, II, or III standards. The final rule tailors the requirements in the capital plan rule that currently apply to Category IV firms, as discussed below.
The proposal would have updated the terminology in the capital plan rule to conform to the terminology used in the tailoring rule by removing the term “large and noncomplex bank holding company” and replacing it with the definition of a firm subject to Category IV standards. No comments were received on this change and the final rule adopts it as proposed. Given the effective date of this final rule, the definition of “large and noncomplex bank holding company” will be changed on the FR Y-14 reports beginning with the December 31, 2020, as of date.
Under the proposal, firms subject to Category IV standards generally would not have been required to calculate estimates of projected revenues, losses, reserves, or pro forma capital levels (effectively a form of stress testing) using scenarios provided by the Board. However, under certain circumstances, based on the macroeconomic outlook or based on the firm's risk profile, financial condition, or corporate structure, the proposal would have allowed the Board to require a firm subject to Category IV standards to submit a capital plan under scenarios provided by the Board. No comments were received on the removal of the general requirement for firms subject to Category IV standards to calculate stress test results under scenarios provided by the Board, or on the stipulation that the Board may require firms to make such calculations in particular circumstances. The final rule adopts these changes as proposed.
The proposal would have updated regulatory reporting requirements to reflect the tailoring rule's elimination of the company-run stress test requirement for a firm subject to Category IV standards. Specifically, under the proposal such firms would no longer have been required to submit to the Federal Reserve forward-looking projections in the granular form prescribed by the FR Y-14A, Schedule A—Summary, Schedule B—Scenario, Schedule F—Business Plan Changes, and Appendix A—Supporting Documentation.
A commenter on the proposal noted that the Federal Reserve did not articulate the public benefits of removing the reporting requirements for firms subject to Category IV standards. Removing these reporting requirements is necessary to effectuate the elimination of the company-run stress test requirement for these firms adopted in the tailoring rule. As discussed in the tailoring rule, eliminating the company-run stress test requirement for firms subject to Category IV standards is consistent with the statutory provisions and appropriate for these firms' risk profile. These reporting schedules are not publicly available, so the adjustments to the reporting requirements do not affect the information in the public domain. This revision comes into effect beginning with the 2021 capital planning cycle.
The proposal would have added four line items to FR Y-14A, Schedule C—Regulatory Capital Instruments, to provide the information needed to determine whether planned capital distributions included in a firm's capital plan are consistent with any effective capital distribution limitations that would apply under the firm's projections in the Internal baseline scenario, as required by the capital plan rule.
While the final rule does not require firms subject to Category IV standards to include certain elements in their capital plans, all banking organizations, regardless of size and complexity, are expected to have the capacity to analyze the potential impact of adverse outcomes on their financial condition, including on capital.
Firms subject to Category IV standards are currently subject to supervisory stress testing on a two-year cycle. To align with the stress testing cycle for firms subject to Category IV standards, the proposal would have required the portion of the stress capital buffer requirement that is calculated as the decline in a firm's CET1 capital ratio to be calculated every other year. During a year in which a firm subject to Category IV standards does not undergo a supervisory stress test, the firm would have received an updated stress capital buffer requirement that reflects the firm's updated planned common stock dividends.
A commenter objected to the proposed frequency of adjustments for the calculation of the decline in CET1 capital ratios for purposes of stress capital buffer requirement for firms subject to Category IV standards. This commenter argued that a biennial frequency would adversely affect comparability across firms subject to the stress capital buffer requirement and cause their stress capital buffer requirements to rely on outdated information. As stated in the proposal, these adjustments align with the requirement under EGRRCPA to apply supervisory stress testing on a “periodic” basis to firms with $100 billion to $250 billion in assets, and the revisions to the supervisory stress test under the tailoring rule that changed the stress testing cycle for firms subject to Category IV standards from annual to biennial.
The proposal would have allowed a firm subject to Category IV standards to elect to participate in the supervisory stress test in a year in which the firm would not normally be subject to the supervisory stress test. A firm that makes such an election would be a full participant in that year's supervisory stress test, including being subject to the disclosure requirements related to the firm's supervisory stress test results, and would receive an updated stress capital buffer requirement.
Commenters generally supported the opt-in election set forth in the proposal and stated that the flexibility provided under this approach is appropriate for the risk profile of firms subject to Category IV standards. By contrast, one commenter argued that the opt-in election could undermine the credibility of the stress testing framework and cause concern regarding banking organizations that choose not to participate (that is, firms that choose not to participate may be perceived as being in weaker condition).
The final rule allows firms subject to Category IV standards to request an updated stress capital buffer requirement in a year in which it would not generally be subject to the supervisory stress test. A firm's decision to request such an update could stem from various factors, such as recent significant changes to the firm's risk profile or corporate structure. The approach in the final rule reduces burden as a general matter while also providing flexibility for firm-specific requests.
The proposal would have required a firm subject to Category IV standards to provide written notice of its election to the Board and appropriate Federal Reserve Bank by December 31 of the year preceding the year in which it seeks to opt in to the supervisory stress test. For purposes of the 2021 supervisory stress test, the proposal included transitional procedures such that a firm subject to Category IV standards would have had until February 15, 2021, to provide written notice of its opt-in election to the Board and appropriate Federal Reserve Bank.
A number of commenters argued that the proposal's December 31 cut-off date for the opt-in notification is too early and requested that the final rule provide a mid-March deadline for a firm subject to Category IV standards to notify the Board and the appropriate Federal Reserve Bank in writing of its opt-in election for that year's supervisory stress test. Additionally, these commenters argued that the February 15 deadline is too early for the 2021 stress test cycle and requested more time to make their opt-in election.
In response to these comments, the final rule requires firms subject to Category IV standards to provide prior written notice of their opt-in election to the Board and the appropriate Federal Reserve Bank by January 15 of any year in which they are not required to participate in the supervisory stress test, rather than the earlier December 31 deadline. The January 15 date will provide these firms with more time to better understand their year-end financial results. The Board is also selecting this date because it generally precedes the announcement of stress test scenarios. Under the final rule, for purposes of the 2021 stress testing cycle, firms subject to Category IV standards have until April 5, 2021, to provide prior written notice of their opt-in
Commenters requested clarity on whether there would be required disclosure of the stress capital buffer requirement for a firm subject to Category IV standards that did not participate in the supervisory stress test. One of these commenters supported mandatory disclosure of such a firm's stress capital buffer requirement, regardless of opt-in or mandatory participation in the supervisory stress test for any given year.
For all firms subject to the capital plan rule, the stress capital buffer requirement will be updated and publicly disclosed on an annual basis. During a year in which a firm subject to Category IV standards is not generally subject to the supervisory stress test, this firm will receive an updated stress capital buffer requirement that reflects the firm's updated planned common stock dividends.
As discussed in the proposal and allowed under the current capital plan rule, the Board retains the ability to require a firm to resubmit its capital plan if, among other reasons, the Board determines that there has been or will likely be a material change in the firm's risk profile, financial condition, or corporate structure, or if changes to financial market conditions or the macroeconomic outlook require the use of updated scenarios. If a firm resubmits its capital plan, the Board may recalculate its stress capital buffer requirement and may use a new severely adverse scenario. These requirements help ensure that a firm's stress capital buffer requirement remains commensurate with its risk profile.
For purposes of the supervisory stress test, the Board does not incorporate the impact of expected changes to a firm's business plan that are likely to have a material impact on the firm's capital adequacy and funding profile (material business plan changes) in the balance sheet, risk-weighted asset, and capital projections. In order to ensure alignment in the assumptions in the supervisory and company-run stress tests, the proposal would have clarified that the Board and firms would exclude the impacts of unconsummated material business plan changes in the supervisory and company-run stress tests conducted pursuant to the Dodd-Frank Act. As this assumption would be reflected in the stress test rules, the proposal would have removed the corresponding section from the Stress Testing Policy Statement. No comments were received on these aspects of the proposal, and the final rule adopts them as proposed.
Under the final rule, each firm will continue to be required to include in its capital plan a discussion of any expected changes to the firm's business plan that are likely to have a material impact on the firm's capital adequacy or liquidity. Each firm will also continue to be required to incorporate impacts of material business plan changes in projections of income and capital levels under all scenarios required for purposes of capital planning. This requirement helps to ensure that a firm appropriately understands the impact of changes to its business on the firm's forward-looking capital position. If a material business plan change resulted in or would result in a material change in a firm's risk profile, the firm would still be required to resubmit its capital plan.
The proposal would have updated the FR Y-14 reporting requirements for firms with total consolidated assets of at least $100 billion to conform with changes made to the stress test rules.
Consistent with the proposal and as described above, the final rule no longer requires firms subject to Category IV standards to submit FR Y-14A schedules associated with company-run stress test results. These schedules include FR Y-14A, Schedule A, Schedule B, Schedule F, and Appendix A.
In order to reflect the exclusion of material business plan changes in company-run stress test projections while also ensuring firms incorporate impacts of material business plan changes in projections of income and capital levels required for purposes of capital planning, the proposal would create two sub-schedules for all items on FR Y-14A, Schedule A and Schedule C: One where a firm would not incorporate the effects of material business plan changes and one where a firm would incorporate the effects of business plan changes, consistent with prior FR Y-14A reporting requirements.
Firms would report projections on the “DFAST” sub-schedule under the scenarios provided by the Federal Reserve, and firms would report projections on the “CCAR” sub-schedule under expected conditions and under a range of scenarios, including the supervisory severely adverse scenario provided by the Federal Reserve and at least one baseline scenario and one stress scenario generated by the firms. Given the changes made to FR Y-14A, Schedule A, firms subject to Category I, II, or III standards would no longer be required to submit the supervisory baseline scenario for FR Y-14A, Schedule F—Business Plan Changes. As noted in sections of the proposal and this final rule on the Paperwork Reduction Act, firms are required to report FR Y-14A, Schedule F, under the Internal baseline and supervisory severely adverse scenarios.
A commenter opposed the proposed reporting changes as they would increase the reporting burden for firms subject to Category I, II, or III standards, and instead suggested that the Board add scenarios to the FR Y-14A, Schedule F—Business Plan Changes. Although the changes in the proposal would modestly increase reporting requirements for firms subject to Category I, II, or III standards that include material business plan changes in their capital plan submission, projections both inclusive and exclusive of material business plan changes are necessary for the Federal Reserve to monitor that a firm appropriately plans for changes to its business for purposes of capital planning. In addition, the proposed reporting changes ensure
In addition, several commenters requested clarification about whether the proposed FR Y-14A reporting requirements include all or only material business plan changes. Under the final rule, firms should exclude the effects of material business plan changes from the “DFAST” sub-schedule of FR Y-14A, Schedule A—Summary, and the “SCB” sub-schedule of Schedule C—Regulatory Capital Instruments. Firms should include only material business plan changes in FR Y-14A, Schedule F—Business Plan Changes.
These revisions to the FR Y-14A will be effective as of the FR Y-14A submission due on April 5, 2021.
The Board currently assesses the condition, performance, and activities of savings and loan holding companies on a consolidated basis in the same manner that the Board assesses the condition, performance, and activities of bank holding companies, taking into account any unique characteristics of savings and loan holding companies and the requirements of the Home Owners' Loan Act.
The proposal solicited comment on whether to apply capital planning and stress capital buffer requirements to covered savings and loan holding companies subject to Category II, III, or IV standards. In particular, the Board solicited comment on the advantages and disadvantages of applying these requirements to large covered savings and loan holding companies in the same manner as they apply to large bank holding companies, whether any adjustments to those requirements should be made for covered savings and loan holding companies, what other approaches to applying capital planning requirements to covered savings and loan holding companies the Board should consider, and whether the current transition period in the capital plan rule for large bank holding companies would be appropriate for covered savings and loan holding companies. The Board received two comments on this element of the proposal. Commenters suggested that the Board provide covered savings and loan holding companies the option to comply with capital planning and stress capital buffer requirements, particularly for those covered savings and loan holding companies that are subject to less risk. To the extent compliance is mandatory, commenters asserted that the Board should tailor the requirements to a covered savings and loan holding company's risk profile and provide an extended transition period for covered savings and loan holding companies to come into compliance with such requirements.
For the reasons set forth below, the Board is applying the capital planning and stress capital buffer requirements to covered savings and loan holding companies subject to Category II, III, or IV standards in the same manner as they apply to large bank holding companies subject to Category II, III, or IV standards.
Capital is central to a firm's ability to absorb unexpected losses and continue to lend to creditworthy businesses and consumers. The Board's capital planning requirements for large bank holding companies help to ensure that these firms have robust systems and processes that incorporate forward-looking projections of revenue and losses to monitor and maintain their internal capital adequacy. The stress capital buffer requirement helps ensure that a firm can meet its obligations to creditors and other counterparties, as well as continue to serve as a financial intermediary through periods of financial and economic stress. As the Board noted in its final tailoring rule, covered savings and loan holding companies engage in many of the same activities and face similar risks as bank holding companies. Accordingly, the final rule applies capital planning and stress capital buffer requirements to covered savings and loan holding companies subject to Category II, III, or IV standards in the same manner as they apply to large bank holding companies subject to Category II, III, or IV standards.
While commenters recommended that the Board permit a covered savings and loan holding company to opt out of these requirements because they have different risk profiles than similarly sized bank holding companies, the final rule does not include such an option because these requirements will promote the safety and soundness of a covered savings and loan holding company by ensuring that a covered savings and loan holding company is required to maintain capital commensurate with its risk profile and activities. Moreover, the capital planning and stress testing requirements that apply to bank holding companies do not provide for such an opt-out election.
One commenter asserted that capital planning requirements should be appropriately tailored to the risk profile of covered savings and loan holding companies, including that these firms
Further, like the capital planning requirements for large bank holding companies, the Board will not have the ability to issue a qualitative objection to a covered savings and loan holding company's capital plan; rather, it will conduct a robust qualitative review of covered savings and loan holding companies' capital planning practices during the traditional supervisory process. Finally, reporting requirements on the FR Y-14A are also tailored, as certain firms are not required to complete certain schedules based on their size and complexity (
A commenter also asserted that the Board should provide a transition period until at least the 2024 capital planning cycle for covered and savings and loan holding companies to come into compliance with capital planning and stress capital buffer requirements, and should provide feedback on firms' initial capital plans on a confidential basis without the initial submission being evaluated under the Federal Reserve's LFI ratings framework. The commenter asserted that such a transition would provide the firm with additional time to understand the Federal Reserve's supervisory expectations prior to receiving public feedback.
Under the tailoring final rules, covered savings and loan holding companies were required to comply with stress testing requirements on the first day of the ninth quarter following the effective date of the final rule. A firm that was subject to the requirements on the date of the tailoring final rule would be required to comply with stress testing requirements for the 2022 stress test cycle. In addition, a firm would be required to file its first FR Y-14A submission on April 5, 2022. To align the stress testing requirements with the capital planning requirements, the capital plan rule applicable to covered savings and loan holding companies would have the same transition provision as the rule applicable to bank holding companies. Specifically, a firm that becomes subject to the rule on or before September 30 of a calendar year must comply with the rule on January 1 of the next calendar year and a firm that becomes subject to the rule after September 30 of a calendar year must comply with the requirements beginning on January 1 of the second calendar year after it meets the relevant threshold. A covered savings and loan holding company will not receive a stress capital buffer requirement until the first year the Board conducts a supervisory stress test of the firm.
Moreover, the Federal Reserve generally does not provide firms with public feedback on their capital plans. However, the initial submission will provide the Federal Reserve with information about the firm's capital planning practices that will be considered as part of the firm's rating evaluation.
The Board also proposed to revise the FR Y-14A report to require covered savings and loan holding companies subject to Category II or III standards to submit FR Y-14A, Schedule A—Summary, Schedule B—Scenario, Schedule E—Operational Risk, and Schedule F—Business Plan Changes, as these schedules are needed for the company-run and supervisory stress tests and for capital planning supervision. In the proposal, the Board asked whether it should revise the regulatory reporting requirements for covered savings and loan holding companies if they were to become subject to the capital plan rule. Given that the Board is applying capital planning and stress capital buffer requirements to savings and loan holding companies, the Board is also requiring covered savings and loan holding companies subject to Category II, III, or IV standards to submit FR Y-14A, Schedule C—Regulatory Capital Instruments, as this schedule is essential for monitoring compliance with the capital plan rule. Requiring covered savings and loan holding companies to submit this information would better align the FR Y-14A reporting requirements for firms with similar risk characteristics.
As a part of the tailoring rule, covered savings and loan holding companies were made subject to the Board's supervisory stress test and company-run stress test requirements in the same manner as bank holding companies. Currently, the capital action assumptions in the stress test rules for covered savings and loan holding companies are different than those for bank holding companies because they were not included in the stress capital buffer rule, in which the Board updated the distribution assumptions for bank holding companies. The proposal would have amended the stress test rules for covered savings and loan holding companies so the capital distribution assumptions for covered savings and loan holding companies would match the assumptions for bank holding companies.
The proposal also would have addressed an omission in the Board's company-run stress test requirements to ensure that all savings and loan holding companies with more than $250 billion in assets are required to publicly disclose the results of their stress tests, similar to the requirement for bank holding companies. This would have ensured the requirements are consistent with the Dodd-Frank Act.
No comments were received on these aspects of the proposal, and the final rule adopts them as proposed.
As a part of the proposal, the Board sought comment on a definition for common stock dividends in the capital plan rule. The proposal noted that the definition of common stock dividend could be aligned with the definition on the FR Y-9C or could include payments of cash to parent organizations irrespective of whether the amount paid is debited from the firm's retained earnings.
Some commenters, particularly foreign banking organizations, opposed a definition of dividends for the capital
The Board is not at this time adopting a definition of dividends for the capital plan rule. The FR Y-14A defines dividends by referencing the definition of dividend in the Glossary to the FR Y-9C instructions. That definition provides, among other things, that cash dividends are “payments of cash to shareholders in proportion to the number of shares they own.” Firms should continue to use this definition when reporting the FR Y-14A.
The Board will continue to monitor firm behavior on the classification of capital actions and the timing of those actions over the capital plan projection horizon. Using this information, the Board will continue to consider whether a definition of dividends for the capital plan rule is required in order to provide comparable treatment to all firms subject to the requirements.
The regulatory reporting aspects of the final rule include additional compliance burden on firms subject to Category I through III standards, but a reduction in compliance burden on firms subject to Category IV standards.
Covered savings and loan holding companies have not been subject to supervisory stress testing requirements to date. One covered savings and loan holding company would become subject to the requirements based on third quarter 2020 data, and this firm is currently constrained by its leverage requirement. It is estimated that this firm's stress capital buffer would need to be over 2.75 times the median of firms' 2020 stress capital buffers for there to be an increase in its capital requirements.
The Board has issued guidance related to sound capital planning practices that has been tailored based on the size, scope of operations, activities, and systemic importance of a firm. In the proposal, the Board requested comment on all aspects of its guidance on capital planning for firms of all sizes, consistent with its ongoing practice of reviewing its policies to ensure that they are having their intended effect. The Board's key capital planning guidance includes supervision and regulation (SR) letters, “Federal Reserve Supervisory Assessment of Capital Planning and Positions for LISCC Firms and Large and Complex Firms” (SR 15-18),
The Board received numerous comments on its capital planning guidance. The Board will address these comments separately.
Certain provisions of the final rule contain “collections of information” within the meaning of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). The Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Board reviewed the final rule under the authority delegated to the Board by OMB.
The proposed rule would have revised collection of information requirements subject to the PRA. The Board proposed to revise the FR Y-14A/Q/M, FR LL, and the FR YY to reflect the changes proposed in the proposed rule. The OMB control numbers are 7100-0341, 7100-0380, and 7100-0350, respectively. The Board received no comments regarding these proposed revisions under the PRA, and is adopting the revisions as proposed, with certain modifications to account for changes between the proposed rule and final rule.
Revisions, With Extension for Three Years, of the Following Information Collections:
(1)
• The annual
• The quarterly FR Y-14Q collects granular data on various asset classes, including loans, securities, trading assets, and pre-provision net revenue for the reporting period.
• The monthly FR Y-14M is comprised of three retail portfolio- and loan-level schedules, and one detailed address-matching schedule to supplement two of the portfolio and loan-level schedules.
The data collected through the FR Y-14A/Q/M reports provide the Board with the information needed to help ensure that large firms have strong, firm‐wide risk measurement and management processes supporting their internal assessments of capital adequacy and that their capital resources are sufficient given their business focus, activities, and resulting risk exposures. The reports are used to support the Board's annual CCAR and Dodd-Frank Act Stress Test (DFAST) exercises, which complement other Board supervisory efforts aimed at enhancing the continued viability of large firms, including continuous monitoring of firms' planning and management of liquidity and funding resources, as well as regular assessments of credit, market and operational risks, and associated risk management practices. Information gathered in this data collection is also used in the supervision and regulation of respondent financial institutions. Respondent firms are currently required to complete and submit up to 17 filings each year: One annual FR Y-14A filing, four quarterly FR Y-14Q filings, and 12 monthly FR Y-14M filings. Compliance with the information collection is mandatory.
As a result of the adopted changes to company-run stress testing requirements, the Board has no longer required that firms subject to Category IV standards report FR Y-14A Schedule A—Summary, Schedule B—Scenario, Schedule F—Business Plan Changes, and Appendix A—Supporting Documentation, which are used to report a firm's company-run stress test results. Firms subject to Category IV standards are no longer required to submit these schedules beginning with the December 31, 2020, as of date. However, firms subject to Category IV standards are still required to complete all remaining FR Y-14A schedules, as they are necessary for the Board to run its supervisory stress test. The Board believes that the detailed balance sheet information collected on a monthly and quarterly basis from firms subject to Category IV standards on the FR Y-14Q and FR Y-14M is crucial for maintaining the integrity of the stress tests, monitoring financial stability, and supervising those firms.
As previously outlined, firms subject to Category I—III standards are still required to report FR Y-14A, Schedule A—Summary. To conform the FR Y-14 reports with the stress test assumption changes made per the stress capital buffer rule, the Board has created two sub-schedules for all items on the FR Y-14A, Schedule A, effective for the December 31, 2020, as of date: (1) DFAST, where a firm would not incorporate the effects of material business plan changes and (2) CCAR, where a firm would incorporate the effects of business plan changes. Specifically, firms subject to Category I—III standards are required to report a version of FR Y-14A, Schedule A.1.a—Income Statement, Schedule A.1.b—Balance Sheet, Schedule A.1.c.1—Standardized RWA, Schedule A.1.d—Capital, Schedule A.2.a—Retail Balance and Loss, Schedule A.3—AFS/HTM Securities, Schedule A.4—Trading, Schedule A.5—Counterparty Credit Risk, Schedule A.6—Operational Risk, and Loss Projections, and Schedule A.7—Pre-Provision Net Revenue, that incorporates the effects of business plan changes, as well as a version of these schedules and items that does not incorporate the effects of material business plan changes. For Schedule A.1.d, firms subject to Category I—III standards are still required to report two sub-schedules with different capital actions, along with the income and balance sheet information reported in the appropriate sub-schedule. In addition, effective for the December 31, 2020, as of date, firms subject to Category I—III standards are only required to report FR Y-14A, Schedule F under the Internal baseline and supervisory severely adverse scenarios.
All BHCs and IHCs are still required to report FR Y-14A, Schedule C—Regulatory Capital Instruments, and the stress test assumption changes made per the stress capital buffer rule create a need for firms to provide certain data excluding the impact of material business plan changes. As a result, the Board has created two sub-schedules for all items on the FR Y-14A, Schedule C: (1) SCB, where a firm does not incorporate the effects of material business plan changes and (2) CCAR, where a firm does incorporate the effects of business plan changes. Specifically, all BHCs and IHCs are required to report a version of FR Y-14A, Schedule C that incorporates the effects of material business plan changes, as well as a version of this schedule and items that does not incorporate these effects. These revisions are effective for the December 31, 2020, as of date.
In order to be able to assess whether a firm's planned capital distributions included in its capital plan are consistent with any effective capital distribution limitations that would apply under the firm's baseline projections, as required by the capital plan rule, the Board has added four items to FR Y-14A, Schedule C. These items capture baseline projections of a firm's common equity tier 1 capital ratio, tier 1 capital ratio, total capital ratio, and net income. These revisions are effective for the December 31, 2020, as of date.
In order to assess compliance with the stress testing and capital plan rules, the Board has required SLHCs subject to Category II, or III standards to submit FR Y-14A, Schedule B—Scenario, and has required SLHCs subject to Category II, III, or IV standards to submit FR Y-14A, Schedule C—Regulatory Capital Instruments. These revisions align with the spirit of the tailoring rule, as it would require all firms subject to
As previously mentioned, the Board has replaced the current definition of “large and noncomplex bank holding company” in the capital plan rule with the definition of a firm subject to Category IV standards. Therefore, the Board has made this change across the FR Y-14A/Q/M reports. In addition, to more accurately reflect the types of firms subject to the stress test reporting requirements, the Board has renamed the “BHC baseline scenario” and “BHC stress scenario” to “Internal baseline scenario” and “Internal stress scenario,” respectively. These revisions are effective for the December 31, 2020, as of date.
(2)
Section 238.132(c)(2)(ii)—0.25,
Section 238.162(b)(1)(ii)—80,
Section 238.170(e)(1)(ii)—80,
Section 238.170(e)(3)—1,005,
Section 238.170(e)(4)—100,
Section 238.170(h)(2)(ii)(B)—2,
Section 238.170(i)—16,
Section 238.170(j)(1) and (2)—100,
Section 238.170(j)(4)—16,
Section 238.170(e)(1)(i)—8,920,
Section 238.170(e)(1)(iii)—100,
Section 238.146 (initial setup)—150,
Section 238.146—60.
Section 238.132(c)(2)(ii)—0,
Section 238.162(b)(1)(ii)—40,
Section 238.170(e)(1)(ii)—80,
Section 238.170(e)(3)—1,005,
Section 238.170(e)(4)—100,
Section 238.170(h)(2)(ii)(B)—2,
Section 238.170(i)—16,
Section 238.170(j)(1) and (2)—100,
Section 238.170(j)(4)—16,
Section 238.170(e)(1)(i)—8,920,
Section 238.170(e)(1)(iii)—100,
Section 238.146 (initial setup)—75,
Section 238.146—30.
Additionally, the final rule applies capital planning and stress capital buffer requirements to covered savings and loan holding companies subject to Category II, III, or IV standards. These savings and loan holding companies will be required to submit capital plans to the Board on an annual basis, and to request prior approval from the Board under certain circumstances before making a capital distribution.
The Board also has revised Regulation LL to permit a savings and loan holding company subject to Category IV standards to elect to participate in the supervisory stress test in a year in which the firm would not normally be subject to the supervisory stress test. To ensure the Board is provided sufficient notice that the firm is participating in the supervisory stress test, the firm would need to make its election by January 15 of the year in which it seeks to opt in to the supervisory stress test by providing written notice to the Board and appropriate Federal Reserve Bank.
(3)
The Regulatory Flexibility Act (RFA) generally requires that, in connection with a final rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis describing the impact of the proposed rule on small entities.
In connection with the proposed rule, the Board stated that it did not believe the proposed rule would have a significant economic impact on a substantial number of small entities. Nevertheless, the Board published and invited comment on an initial regulatory flexibility analysis of the proposed rule. No comments were received on the initial regulatory flexibility analysis.
The Board is finalizing amendments to Regulations Q,
The Board has considered whether to conduct a final regulatory flexibility analysis in connection with this final rule. However, the assets of institutions subject to this final rule substantially exceed the $600 million asset threshold under which a banking organization is considered a “small entity” under SBA regulations. Because the final rule is not likely to apply to any depository institution or company with assets of $600 million or less, it is not expected to apply to any small entity for purposes of the RFA. The Board does not believe that the final rule duplicates, overlaps, or conflicts with any other Federal rules. In light of the foregoing, the Board certifies that the final rule will not have a significant economic impact on a substantial number of small entities supervised.
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471, 12 U.S.C. 4809) requires the federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board has sought to present the final rule in a simple and straightforward manner and did not receive any comments on the use of plain language.
Administrative practice and procedure, Banks, Banking, Capital, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Risk, Securities.
Administrative practice and procedure, Banks, Banking, Capital planning, Holding companies, Reporting and recordkeeping requirements, Securities, Stress testing.
Administrative practice and procedure, Banks, Banking, Federal Reserve System, Reporting and recordkeeping requirements, Securities.
Administrative practice and procedure, Banks, Banking, Capital planning, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Securities, Stress testing.
For the reasons stated in the
12 U.S.C. 248(a), 321-338a, 481-486, 1462a, 1467a, 1818, 1828, 1831n, 1831o, 1831p-1, 1831w, 1835, 1844(b), 1851, 3904, 3906-3909, 4808, 5365, 5368, 5371, 5371 note, and sec. 4012, Pub. L. 116-136, 134 Stat. 281.
The revisions read as follows:
(a) * * *
(2)
(iii)
(vi)
(B) If a Board-regulated institution subject to 12 CFR 225.8 or 238.170 has not yet received a stress capital buffer requirement, its stress capital buffer requirement for purposes of this part is 2.5 percent.
(3) * * *
(i) A Board-regulated institution that is not subject to 12 CFR 225.8 or 238.170 has a capital conservation buffer equal to the lowest of the following ratios, calculated as of the last day of the previous calendar quarter:
(4)
(ii) A Board-regulated institution that is not subject 12 CFR 225.8 or 238.170 and that has a capital conservation buffer that is greater than 2.5 percent plus 100 percent of its applicable countercyclical capital buffer amount in accordance with paragraph (b) of this section is not subject to a maximum payout amount under paragraph (a)(2)(ii) of this section.
(iii) Except as provided in paragraph (a)(4)(iv) of this section, a Board-regulated institution that is not subject to 12 CFR 225.8 or 238.170 may not make distributions or discretionary bonus payments during the current calendar quarter if the Board-regulated institution's:
(A) Eligible retained income is negative; and
(B) Capital conservation buffer was less than 2.5 percent as of the end of the previous calendar quarter.
(iv) Prior approval—notwithstanding the limitations in paragraphs (a)(4)(i) through (iii) of this section, the Board may permit a Board-regulated institution that is not subject to 12 CFR 225.8 or 238.170 to make a distribution or discretionary bonus payment upon a request of the Board-regulated institution, if the Board determines that the distribution or discretionary bonus payment would not be contrary to the purposes of this section, or to the safety and soundness of the Board-regulated institution. In making such a determination, the Board will consider the nature and extent of the request and the particular circumstances giving rise to the request.
(v)
(c)
(1) * * *
(i) A Board-regulated institution that is subject to 12 CFR 225.8 or 238.170 shall not make distributions or discretionary bonus payments or create an obligation to make such distributions or payments during the current calendar quarter that, in the aggregate, exceed its maximum payout amount.
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(2)
(ii) A Board-regulated institution that is subject to 12 CFR 225.8 or 238.170 has a standardized approach capital conservation buffer that is equal to the lowest of the following ratios, calculated as of the last day of the previous calendar quarter:
12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-1, 1843(c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 3331-3351, 3906, 3907, and 3909; 15 U.S.C. 1681s, 1681w, 6801 and 6805.
The revisions and additions read as follows:
(c) * * *
(1) A bank holding company that meets the $100 billion asset threshold (as measured under paragraph (b) of this section) on or before September 30 of a calendar year must comply with the requirements of this section beginning on January 1 of the next calendar year, unless that time is extended by the Board in writing. Notwithstanding the previous sentence, the Board will not provide a bank holding company with notice of its stress capital buffer requirement until the first year in which the Board conducts an analysis of the bank holding company pursuant to 12 CFR 252.44.
(2) A bank holding company that meets the $100 billion asset threshold after September 30 of a calendar year must comply with the requirements of this section beginning on January 1 of the second calendar year after the bank holding company meets the $100 billion asset threshold, unless that time is extended by the Board in writing. Notwithstanding the previous sentence, the Board will not provide a bank holding company with notice of its stress capital buffer requirement until the first year in which the Board conducts an analysis of the bank holding company pursuant to 12 CFR 252.44.
(d) * * *
(3)
(4)
(5)
(6) C
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(e) * * *
(2) * * *
(i) * * *
(A) Estimates of projected revenues, losses, reserves, and pro forma capital levels, including regulatory capital ratios, and any additional capital measures deemed relevant by the bank holding company, over the planning horizon under a range of scenarios, including:
(
(
(4) * * *
(i) * * *
(B) * * *
(
(ii) The Board, or the appropriate Reserve Bank with concurrence of the Board, may extend the 30-day period in paragraph (e)(4)(i) of this section for up to an additional 60 calendar days, or such longer period as the Board or the appropriate Reserve Bank, with concurrence of the Board, determines appropriate.
(iii) Any updated capital plan must satisfy all the requirements of this section; however, a bank holding company may continue to rely on information submitted as part of a previously submitted capital plan to the extent that the information remains accurate and appropriate.
(f) * * *
(1)
(4)
(h) * * *
(2)
(ii)
(A) Determine whether the planned capital distributions for the fourth through seventh quarters of the planning horizon under the Internal baseline scenario would be consistent with effective capital distribution limitations assuming the stress capital buffer requirement provided by the Board under paragraph (h)(1) or (i)(5) of this section, as applicable, in place of any stress capital buffer requirement in effect; and
(
(
(B) Notify the Board of any adjustments made to planned capital distributions for the fourth through seventh quarters of the planning horizon under the Internal baseline scenario.
(3)
(i) The expiration of the time for requesting reconsideration under paragraph (i) of this section; and
(ii) The expiration of the time for adjusting planned capital distributions pursuant to paragraph (h)(2)(ii) of this section.
(4)
(ii) Unless otherwise determined by the Board, a bank holding company's final planned capital distributions and final stress capital buffer requirement shall:
(A) Be effective on October 1 of the calendar year in which a capital plan was submitted pursuant to paragraph (e)(1)(ii) of this section; and
(B) Remain in effect until superseded.
(5)
(i) The stress capital buffer requirement provided to a bank holding company under paragraph (h)(1) or (i)(5) of this section;
(ii) Adjustments made pursuant to paragraph (h)(2)(ii);
(iii) A summary of the results of the supervisory stress test; and
(iv) Other information.
(i)
(1)
(2)
(3)
(ii) A request for reconsideration may include a request for an informal hearing on the bank holding company's request for reconsideration.
(4)
(ii) An informal hearing shall be held within 30 calendar days of a request, if granted, provided that the Board may extend this period upon notice to the requesting party.
(5)
(6)
(j)
(2)
(i) The bank holding company's capital plan or a discussion of changes to the bank holding company's capital plan since it was last submitted to the Federal Reserve;
(ii) The purpose of the transaction;
(iii) A description of the capital distribution, including for redemptions or repurchases of securities, the gross consideration to be paid and the terms and sources of funding for the transaction, and for dividends, the amount of the dividend(s); and
(iv) Any additional information requested by the Board or the appropriate Reserve Bank (which may include, among other things, an assessment of the bank holding company's capital adequacy under a severely adverse scenario, a revised capital plan, and supporting data).
(3)
(ii) In acting on a request for prior approval of a capital distribution, the Board, or appropriate Reserve Bank with concurrence of the Board, will apply the considerations and principles in paragraph (g) of this section, as appropriate. In addition, the Board, or the appropriate Reserve Bank with concurrence of the Board, may
(4)
(ii) The Board may, in its sole discretion, order an informal hearing if the Board finds that a hearing is appropriate or necessary to resolve disputes regarding material issues of fact. An informal hearing shall be held within 30 calendar days of a request, if granted, provided that the Board may extend this period upon notice to the requesting party.
(iii) Written notice of the final decision of the Board shall be given to the bank holding company within 60 calendar days of the conclusion of any informal hearing ordered by the Board, provided that the Board may extend this period upon notice to the requesting party.
(iv) While the Board's decision is pending and until such time as the Board, or the appropriate Reserve Bank with concurrence of the Board, approves the capital distribution at issue, the bank holding company may not make such capital distribution.
(k)
(1) The capital distribution was approved pursuant to paragraph (j)(3) of this section; or
(2) The dollar amount of the capital distribution will exceed the dollar amount of the bank holding company's final planned capital distributions, as measured on an aggregate basis beginning in the fourth quarter of the planning horizon through the quarter at issue.
5 U.S.C. 552, 559; 12 U.S.C. 1462, 1462a, 1463, 1464, 1467, 1467a, 1468, 5365; 1813, 1817, 1829e, 1831i, 1972, 15 U.S.C. 78
(a) * * *
(4) In conducting the analysis, the Board will not incorporate changes to a firm's business plan that are likely to have a material impact on the covered company's capital adequacy and funding profile in its projections of losses, net income, pro forma capital levels, and capital ratios.
(c) * * *
(2)
(ii) A Category IV savings and loan holding company may elect to have the Board conduct a stress test with respect to the company in a year ending in an odd number by providing notice to the Board and the appropriate Federal Reserve Bank by January 15 of that year.
(d)
(1) The covered company will not pay any dividends on any instruments that qualify as common equity tier 1 capital;
(2) The covered company will make payments on instruments that qualify as additional tier 1 capital or tier 2 capital equal to the stated dividend, interest, or principal due on such instrument;
(3) The covered company will not make a redemption or repurchase of any capital instrument that is eligible for inclusion in the numerator of a regulatory capital ratio; and
(4) The covered company will not make any issuances of common stock or preferred stock.
(a) * * *
(2) The potential impact on pro forma regulatory capital levels and pro forma capital ratios (including regulatory capital ratios and any other capital ratios specified by the Board), and in so doing must:
(i) Incorporate the effects of any capital actions over the planning horizon and maintenance of an allowance for credit losses appropriate for credit exposures throughout the planning horizon; and
(ii) Exclude the impacts of changes to a firm's business plan that are likely to have a material impact on the covered company's capital adequacy and funding profile.
(b) * * *
(1) The covered company will not pay any dividends on any instruments that qualify as common equity tier 1 capital;
(2) The covered company will make payments on instruments that qualify as additional tier 1 capital or tier 2 capital equal to the stated dividend, interest, or principal due on such instrument;
(3) The covered company will not make a redemption or repurchase of any capital instrument that is eligible for inclusion in the numerator of a regulatory capital ratio; and
(4) The covered company will not make any issuances of common stock or preferred stock.
(a)
(ii) A covered company that is not subject to a supervisory stress test under § 238.132 must publicly disclose a summary of the results of the stress test required under § 238.143 in the period beginning on June 15 and ending on June 30 in the year in which the stress test is conducted, unless that time is extended by the Board in writing.
(a)
(b)
(i) Any top-tier covered savings and loan holding company domiciled in the United States with average total consolidated assets of $100 billion or more ($100 billion asset threshold); and
(ii) Any other covered savings and loan holding company domiciled in the United States that is made subject to this section, in whole or in part, by order of the Board.
(2)
(3)
(4)
(5)
(c)
(2) A covered savings and loan holding company that meets the $100 billion asset threshold after September 30 of a calendar year must comply with the requirements of this section beginning on January 1 of the second calendar year after the covered savings and loan holding company meets the $100 billion asset threshold, unless that time is extended by the Board in writing. Notwithstanding the previous sentence, the Board will not provide a covered savings and loan holding company with notice of its stress capital buffer requirement until the first year in which the Board conducts an analysis of the covered savings and loan holding company pursuant to 12 CFR 238.132.
(3) The Board, or the appropriate Reserve Bank with the concurrence of the Board, may require a covered savings and loan holding company described in paragraph (c)(1) or (2) of this section to comply with any or all of the requirements of this section if the Board, or appropriate Reserve Bank with concurrence of the Board, determines that the requirement is appropriate on a different date based on the company's risk profile, scope of operation, or financial condition and provides prior notice to the company of the determination.
(d)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(e)
(ii) A covered savings and loan holding company must submit its complete capital plan to the Board and the appropriate Reserve Bank by April 5 of each calendar year, or such later date as directed by the Board or by the appropriate Reserve Bank with concurrence of the Board.
(iii) The covered savings and loan holding company's board of directors or a designated committee thereof must at least annually and prior to submission of the capital plan under paragraph (e)(1)(ii) of this section:
(A) Review the robustness of the covered savings and loan holding company's process for assessing capital adequacy;
(B) Ensure that any deficiencies in the covered savings and loan holding company's process for assessing capital adequacy are appropriately remedied; and
(C) Approve the covered savings and loan holding company's capital plan.
(2)
(i) An assessment of the expected uses and sources of capital over the planning horizon that reflects the covered savings and loan holding company's size, complexity, risk profile, and scope of operations, assuming both expected and stressful conditions, including:
(A) Estimates of projected revenues, losses, reserves, and pro forma capital levels, including regulatory capital ratios, and any additional capital measures deemed relevant by the covered savings and loan holding company, over the planning horizon under a range of scenarios, including:
(
(
(B) A discussion of the results of any stress test required by law or regulation, and an explanation of how the capital plan takes these results into account; and
(C) A description of all planned capital actions over the planning horizon. Planned capital actions must be consistent with effective capital distribution limitations, except as may be adjusted pursuant to paragraph (h) of this section. In determining whether a covered savings and loan holding company's planned capital distributions are consistent with effective capital distribution limitations, a covered savings and loan holding company must assume that any countercyclical capital buffer amount currently applicable to the covered savings and loan holding company remains at the same level, except that the covered savings and loan holding company must reflect any increases or decreases in the countercyclical capital buffer amount that have been announced by the Board at the times indicated by the Board's announcement for when such increases or decreases will take effect.
(ii) A detailed description of the covered savings and loan holding company's process for assessing capital adequacy, including:
(A) A discussion of how the covered savings and loan holding company will, under expected and stressful conditions, maintain capital commensurate with its risks, maintain capital above the regulatory capital ratios, and serve as a source of strength to its subsidiary depository institutions;
(B) A discussion of how the covered savings and loan holding company will, under expected and stressful conditions, maintain sufficient capital to continue its operations by maintaining ready access to funding, meeting its obligations to creditors and other counterparties, and continuing to serve as a credit intermediary;
(iii) The covered savings and loan holding company's capital policy; and
(iv) A discussion of any expected changes to the covered savings and loan holding company's business plan that are likely to have a material impact on the covered savings and loan holding company's capital adequacy or liquidity.
(3)
(i) The covered savings and loan holding company's financial condition, including its capital;
(ii) The covered savings and loan holding company's structure;
(iii) Amount and risk characteristics of the covered savings and loan holding company's on- and off-balance sheet exposures, including exposures within the covered savings and loan holding company's trading account, other
(iv) The covered savings and loan holding company's relevant policies and procedures, including risk management policies and procedures;
(v) The covered savings and loan holding company's liquidity profile and management;
(vi) The loss, revenue, and expense estimation models used by the covered savings and loan holding company for stress scenario analysis, including supporting documentation regarding each model's development and validation; and
(vii) Any other relevant qualitative or quantitative information requested by the Board or by the appropriate Reserve Bank to facilitate review of the covered savings and loan holding company's capital plan under this section.
(4)
(A) The covered savings and loan holding company determines there has been or will be a material change in the covered savings and loan holding company's risk profile, financial condition, or corporate structure since the covered savings and loan holding company last submitted the capital plan to the Board and the appropriate Reserve Bank under this section; or
(B) The Board, or the appropriate Reserve Bank with concurrence of the Board, directs the covered savings and loan holding company in writing to revise and resubmit its capital plan for any of the following reasons:
(
(
(
(ii) The Board, or the appropriate Reserve Bank with concurrence of the Board, may extend the 30-day period in paragraph (e)(4)(i) of this section for up to an additional 60 calendar days, or such longer period as the Board or the appropriate Reserve Bank, with concurrence of the Board, determines appropriate.
(iii) Any updated capital plan must satisfy all the requirements of this section; however, a covered savings and loan holding company may continue to rely on information submitted as part of a previously submitted capital plan to the extent that the information remains accurate and appropriate.
(5)
(f)
(2)
(i) The following calculation:
(A) The ratio of a covered savings and loan holding company's common equity tier 1 capital to risk-weighted assets, as calculated under 12 CFR part 217, subpart D, as of the final quarter of the previous capital plan cycle, unless otherwise determined by the Board; minus
(B) The lowest projected ratio of the covered savings and loan holding company's common equity tier 1 capital to risk-weighted assets, as calculated under 12 CFR part 217, subpart D, in any quarter of the planning horizon under a supervisory stress test; plus
(C) The ratio of:
(
(
(ii) 2.5 percent.
(3)
(4)
(g)
(1) The comprehensiveness of the capital plan, including the extent to which the analysis underlying the capital plan captures and addresses potential risks stemming from activities across the covered savings and loan holding company and the covered savings and loan holding company's capital policy;
(2) The reasonableness of the covered savings and loan holding company's capital plan, the assumptions and analysis underlying the capital plan, and the robustness of its capital adequacy process;
(3) Relevant supervisory information about the covered savings and loan holding company and its subsidiaries;
(4) The covered savings and loan holding company's regulatory and financial reports, as well as supporting data that would allow for an analysis of the covered savings and loan holding company's loss, revenue, and reserve projections;
(5) The results of any stress tests conducted by the covered savings and loan holding company or the Federal Reserve; and
(6) Other information requested or required by the Board or the appropriate Reserve Bank, as well as any other information relevant, or related, to the savings and loan holding company's capital adequacy.
(h)
(2)
(ii)
(A) Determine whether the planned capital distributions for the fourth through seventh quarters of the planning horizon under the Internal baseline scenario would be consistent with effective capital distribution limitations assuming the stress capital buffer requirement provided by the Board under paragraph (h)(1) or (i)(5) of this section, as applicable, in place of any stress capital buffer requirement in effect; and
(
(
(B) Notify the Board of any adjustments made to planned capital distributions for the fourth through seventh quarters of the planning horizon under the Internal baseline scenario.
(3)
(i) The expiration of the time for requesting reconsideration under paragraph (i) of this section; and
(ii) The expiration of the time for adjusting planned capital distributions pursuant to paragraph (h)(2)(ii) of this section.
(4)
(ii) Unless otherwise determined by the Board, a covered savings and loan holding company's final planned capital distributions and final stress capital buffer requirement shall:
(A) Be effective on October 1 of the calendar year in which a capital plan was submitted pursuant to paragraph (e)(1)(ii) of this section; and
(B) Remain in effect until superseded.
(5)
(i) The stress capital buffer requirement provided to a covered savings and loan holding company under paragraph (h)(1) or (i)(5) of this section;
(ii) Adjustments made pursuant to paragraph (h)(2)(ii);
(iii) A summary of the results of the supervisory stress test; and
(iv) Other information.
(i)
(1)
(2)
(3)
(ii) A request for reconsideration may include a request for an informal hearing on the covered savings and loan holding company's request for reconsideration.
(4)
(ii) An informal hearing shall be held within 30 calendar days of a request, if granted, provided that the Board may extend this period upon notice to the requesting party.
(5)
(6)
(j)
(2)
(i) The covered savings and loan holding company's capital plan or a discussion of changes to the covered savings and loan holding company's capital plan since it was last submitted to the Federal Reserve;
(ii) The purpose of the transaction;
(iii) A description of the capital distribution, including for redemptions or repurchases of securities, the gross consideration to be paid and the terms and sources of funding for the transaction, and for dividends, the amount of the dividend(s); and
(iv) Any additional information requested by the Board or the appropriate Reserve Bank (which may include, among other things, an assessment of the covered savings and loan holding company's capital adequacy under a severely adverse scenario, a revised capital plan, and supporting data).
(3)
(ii) In acting on a request for prior approval of a capital distribution, the Board, or appropriate Reserve Bank with concurrence of the Board, will apply the considerations and principles in paragraph (g) of this section, as appropriate. In addition, the Board, or the appropriate Reserve Bank with concurrence of the Board, may disapprove the transaction if the covered savings and loan holding company does not provide all of the information required to be submitted under paragraph (j)(2) of this section.
(4)
(ii) The Board may, in its sole discretion, order an informal hearing if the Board finds that a hearing is appropriate or necessary to resolve disputes regarding material issues of fact. An informal hearing shall be held within 30 calendar days of a request, if granted, provided that the Board may extend this period upon notice to the requesting party.
(iii) Written notice of the final decision of the Board shall be given to the covered savings and loan holding company within 60 calendar days of the conclusion of any informal hearing ordered by the Board, provided that the Board may extend this period upon notice to the requesting party.
(iv) While the Board's decision is pending and until such time as the Board, or the appropriate Reserve Bank with concurrence of the Board, approves the capital distribution at issue, the covered savings and loan holding company may not make such capital distribution.
(k)
(1) The capital distribution was approved pursuant to paragraph (j)(3) of this section; or
(2) The dollar amount of the capital distribution will exceed the dollar amount of the covered savings and loan holding company's final planned capital distributions, as measured on an aggregate basis beginning in the fourth quarter of the planning horizon through the quarter at issue.
12 U.S.C. 321-338a, 481-486, 1467a, 1818, 1828, 1831n, 1831o, 1831p-l, 1831w, 1835, 1844(b), 1844(c), 3101
(a) * * *
(3) In conducting the analysis, the Board will not incorporate changes to a firm's business plan that are likely to have a material impact on the covered company's capital adequacy and funding profile in its projections of losses, net income, pro forma capital levels, and capital ratios.
(d)
(2)
(ii) A Category IV bank holding company or Category IV U.S. intermediate holding company may elect to have the Board conduct a stress test with respect to the company in a year ending in an odd number by providing notice to the Board and the appropriate Federal Reserve Bank by January 15 of that year. Notwithstanding the previous sentence, such a company may elect to have the Board conduct a stress test with respect to the company in the year 2021 by providing notice to the Board and the appropriate Federal Reserve Bank by April 5, 2021.
(3)
(ii)
(b) * * *
(2) * * *
(i) * * *
(B) Is not a Category IV bank holding company.
(a) * * *
(2) The potential impact on the regulatory capital levels and ratios applicable to the covered bank, and any other capital ratios specified by the Board, and in doing so must:
(i) Incorporate the effects of any capital action over the planning horizon and maintenance of an allowance for loan losses or adjusted allowance for credit losses, as appropriate, for credit exposures throughout the planning horizon; and
(ii) Exclude the impacts of changes to a firm's business plan that are likely to have a material impact on the covered company's capital adequacy and funding profile.
(a) * * *
(1)
By order of the Board of Governors of the Federal Reserve System.
National Credit Union Administration (NCUA).
Final rule.
The NCUA Board is adopting a final rule that codifies the Interagency Statement Clarifying the Role of
The provisions of this final rule are effective on March 5, 2021.
Naghi Khaled, Policy Officer (703) 664-3883 or Scott Neat, Associate Director, Office of Examinations and Insurance at (703) 518-6363; Ian Marenna, Associate General Counsel, or Marvin Shaw, Staff Attorney, Office of General Counsel, at the above address or telephone (703) 518-6540. National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314.
The NCUA recognizes the important distinction between issuances that serve to implement acts of Congress (known as “regulations” or “legislative rules”) and non-binding supervisory guidance documents.
In recognition of the important distinction between rules and guidance, on September 11, 2018, the NCUA along with the Federal Deposit Insurance Corporation (FDIC), the Board of Governors of the Federal Reserve (the Board), the Office of Comptroller of the Currency (OCC), and the Consumer Financial Protection Bureau (Bureau) (collectively, the agencies) issued the Interagency Statement Clarifying the Role of Supervisory Guidance (2018 Statement) to explain the role of supervisory guidance and describe the agencies' approach to supervisory guidance.
The 2018 Statement restated existing law and reaffirmed the agencies' understanding that supervisory guidance does not create binding, enforceable legal obligations. The 2018 Statement reaffirmed that the agencies do not issue supervisory criticisms for “violations” of supervisory guidance and described the appropriate use of supervisory guidance by the agencies. In the 2018 Statement, the agencies also expressed their intention to (1) limit the use of numerical thresholds in guidance; (2) reduce the issuance of multiple supervisory guidance documents on the same topic; (3) continue efforts to make the role of supervisory guidance clear in communications to examiners and supervised institutions; and (4) encourage supervised institutions to discuss their concerns about supervisory guidance with their agency contact.
On November 5, 2018, the OCC, Board, FDIC, and Bureau each received a petition for a rulemaking (Petition), as permitted under the Administrative Procedure Act (APA),
The Petition argued that a rule on guidance is necessary to bind future agency leadership and staff to the 2018 Statement's terms. The Petition also suggested there are ambiguities in the 2018 Statement concerning how supervisory guidance is used in connection with matters requiring attention, matters requiring immediate attention (collectively, MRAs for banks), as well as in connection with other supervisory actions that should be clarified through a rulemaking. As explained in the next section, the NCUA examiners use a notification similar to an MRA called a Document of Resolution (DOR). Finally, the Petition called for the rulemaking to implement changes in the agencies' standards for issuing MRAs. Specifically, the Petition requested that the agencies limit the role of MRAs to addressing circumstances in which there is a violation of a statute,
As a member of the Federal Financial Institution Examination Council (FFIEC),
Often, and necessarily, regulatory requirements are not simple prescriptions that lend themselves to right-or-wrong determinations. Codifying in regulation all unsafe and unsound conditions and practices in explicit detail would be unfeasible, especially in light of the ever-evolving nature of financial services. Highly detailed or prescriptive regulations would also lead to unintended consequences. Regulated entities would face additional burden, less flexibility, and innovation would be stifled.
Notwithstanding these limitations, the NCUA has issued a regulation that implements the Federal Credit Union Act's requirement that federally insured credit unions operate safely and soundly. Section 741.3(b) of the NCUA's Rules and Regulation lists various factors the agency considers “in determining whether the credit union's financial condition and policies are both safe and sound.” Regarding the continuing insurability of a credit union, Section 741.3(d) of the NCUA's Rules and Regulation goes on to specify that “[i]nsurance of member accounts would not otherwise involve undue risk to the National Credit Union Share Insurance Fund (NCUSIF).”
The NCUA needs to be able to address safety and soundness issues through supervisory determinations that properly evaluate and weigh the relevant facts and considerations in their totality. For example, a federally insured credit union may be engaged in an inherently high-risk activity, but the credit union may mitigate the risk by holding extra capital and liquidity and adopting leading practices in managing the underlying risk. Conversely, another institution may have not adopted sufficient mitigations to offset the risk, leading to undue risk to the National Credit Union Share Insurance Fund and taxpayers.
Like the other agencies, the NCUA has instructions that set requirements for how examiners supervise institutions.
Pursuant to agency policy, examiners may only include in the Document of Resolution (DOR)
• Unsafe or unsound practices that reasonably threaten the stability of the credit union—that is, any action or lack of action that, if left uncorrected, may result in substantial loss or damage to the credit union or its members.
• Violations of law or regulation that are systemic, recurring, or that result from willful neglect.
With that statutory and regulatory background in mind, the NCUA uses DORs to address practices that result in substantive noncompliance with laws or rules, enforcement actions, or conditions imposed in writing. The NCUA's policy is to identify deficient practices and violations in a timely manner and encourage corrective action well before deficiencies affect a credit union's financial condition or viability.
On November 5, 2020, the agencies issued a proposed rule (Proposed Rule) that would codify the 2018 Statement, with clarifying changes, as an appendix to proposed rule text.
The Petition expressed support for the 2018 Statement and acknowledged that it addresses many issues of concern for the Petitioners relating to the use of supervisory guidance. The Petition expressed concern, however, that the 2018 Statement's reference to not basing “criticisms” on violations of supervisory guidance has led to confusion about whether MRAs are covered by the 2018 Statement. Accordingly, the agencies proposed to clarify in the Proposed Rule that the term “criticize” includes the issuance of MRAs and other supervisory criticisms such as DORs, including those communicated through matters requiring board attention, documents of resolution, and supervisory recommendations (collectively,
Examiners will not criticize a supervised financial institution for a “violation” of supervisory guidance.
2018 Statement at 2. As revised in the Proposed Rule, this sentence read as follows:
Examiners will not criticize
Proposed Rule (emphasis added). As discussed
The Petition requested further that these supervisory criticisms should not include “generic” or “conclusory” references to safety and soundness. The agencies agreed that supervisory criticisms should continue to be specific as to practices, operations, financial conditions, or other matters that could have a negative effect on the safety and soundness of the financial institution, could cause consumer harm, or could cause violations of laws, regulations, final agency orders, or other legally enforceable conditions. Accordingly, the agencies included language reflecting this practice in the Proposed Rule.
The Petition also suggested that MRAs, as well as memoranda of understanding (MOUs), examination downgrades, and any other formal examination mandate or sanction, should be based only on a violation of a statute, regulation, or order, including a “demonstrably unsafe or unsound practice.”
The agencies also noted that the 2018 Statement was intended to focus on the appropriate use of supervisory guidance in the supervisory process, rather than the standards for supervisory criticisms. To address any confusion concerning the scope of the 2018 Statement, the Proposed Rule removed two sentences from the 2018 Statement concerning grounds for “citations” and the handling of deficiencies that do not constitute violations of law.
Rather, any citations will be for violations of law, regulation, or non-compliance with enforcement orders or other enforceable conditions. During examinations and other supervisory activities, examiners may identify unsafe or unsound practices or other deficiencies in risk management, including compliance risk management, or other areas that do not constitute violations of law or regulation.
2018 Statement at 2. The agencies did not intend these deletions to indicate a change in supervisory policy.
The NCUA received 13 comments specifically focusing on credit union concerns about the Proposed Rule. These commenters, which included national trade associations, state credit union leagues, and credit unions, generally supported he proposed rule. Six comments were sent jointly to each regulator, two were from associations that provided similar comments to the CFPB, and five were comments provided solely to the NCUA. Topics discussed within the scope of the proposal are issues addressing the effect and applicability of the guidance. Issues beyond the scope of the rule addressed coordination with other Federal and State regulatory authorities, consistency in applying guidance, the examination cycle, the need for an appeals process, and the need for the Board to issue more guidance on various topics.
One commenter stated that each guidance statement from the NCUA should include a notice that it is nonbinding. In addition, the commenter believed that the NCUA should add a notice to each guidance statement to support that credit unions are fully permitted to develop their own approaches to compliance issues, and that the examiner's recommendations or suggestions do not eliminate the ability of the credit union to implement its specific solutions.
Aside from expressing general support for the rule, most credit union specific comments were beyond the scope of the rulemaking. Three commenters requested that the NCUA improve coordination with respect to other Federal regulators, especially CFPB and FINCEN. Two commenters also requested that NCUA improve coordination with state supervisory authorities. The commenters stated that such enhanced coordination would help avoid overlapping or consecutive examinations, which they stated imposes operational burdens and utilizes critical staff member time. With respect to state guidance, two commenters stated that the NCUA must ensure state regulators understand how the NCUA will incorporate state reliance on state guidance into joint examinations or in alternating examinations where the NCUA may be the lead agency.
Two commenters stated that there should be more consistent application of the rules and guidance across regions, with examples provided about BSA/AML and audit reports. One commenter recommended that the NCUA should create a task force to evaluate
One commenter stated that the NCUA Interpretive Rules and Policy Statements (IRPS) are part exempted interpretive rules and covered policy statements. NCUA might consider explicitly identifying existing and future issuances as either covered supervisory guidance or exempt interpretive rule to provide clarity for stakeholders.
In addition, the agencies received 30 comments concerning the Proposed Rule.
One commenter agreed with the agencies that supervisory criticisms should not be limited to violation of statutes, regulations, or order, including a “demonstrable unsafe or unsound practice” and that supervisory guidance remains a beneficial tool to communicate supervisory expectations to the industry. The commenter stated that the proactive identification of supervisory criticism or deficiencies that do not constitute violations of law facilitates forward-looking supervision, which helps address problems before they warrant a formal enforcement action. The commenter noted as well that supervisory guidance provides important insight to industry and ensures consistency in the supervisory approach and that supervised institutions frequently request supervisory guidance. The commenter observed that the pandemic has amplified the requests for supervisory guidance and interpretation, and that it is apparent institutions want clarity and guidance from regulators.
Two commenters, both advocacy groups, opposed the proposed rule, suggesting that codifying the 2018 Statement may undermine the important role that supervisory guidance can play by informing supervisory criticism, rather than merely clarifying that it will not serve as the basis for enforcement actions. One commenter stated that it is essential for agencies to have the prophylactic authority to base criticisms on improper practices by financial institutions that may not yet have ripened into violations of law or significant safety and soundness concerns. The commenter stated that this is particularly important with respect to large banks, where delay in addressing concerns could lead to a broader crisis. One commenter stated that the agencies have not explained the benefits that would result from the rule or demonstrated how the rule will promote safety and soundness or consumer protection. The commenter argued that supervision is different from other forms of regulation and requires supervisory discretion, which could be constrained by the rule. One of these commenters argued that the proposal would send a signal that financial institutions have wider discretion to ignore supervisory guidance.
Several commenters requested that the Proposed Rule cover interpretive rules and clarify that interpretive rules do not have the force and effect of law. One commenter stated that the agencies should clarify whether they believe that interpretive rules can be binding. The commenter argued that, under established legal principles, interpretive rules can be binding on the issuing agency but not on the public. Some commenters suggested that the agencies follow ACUS recommendations for issuing interpretive rules and that the agencies should clarify when particular guidance documents are or are not interpretive rules and allow the public to petition and change an interpretation. A number of commenters requested that the agencies expand the statement to address the standards that apply to MRAs and other supervisory criticisms such as DORs, a suggestion made in the Petition.
Several commenters recommended that the agencies clarify that the practices described in supervisory guidance are merely examples of compliant conduct, not expectations that may form the basis for supervisory criticism. One commenter suggested that the agencies state that when agencies offer examples of safe and sound conduct, compliance with consumer protection standards, appropriate risk management practices, or acceptable practices through supervisory guidance or interpretive rules, the Agencies will treat adherence to that supervisory guidance or interpretive rule as deemed compliance. One commenter also requested that the agencies make clear that guidance that goes through public comment, as well as any examples used in guidance, are not binding. The commenter also requested that the agencies affirm that they will apply statutory factors while processing applications.
One commenter argued that guidance provides valuable information to supervisors about how their discretion should be exercised and therefore plays an important role in supervision. According to this commenter, 12 U.S.C. 1831p-1 and 12 U.S.C. 1818 recognize the discretionary power conferred on banking agencies separate from the power to issue regulations. The commenter noted that, pursuant to these statutes, regulators may issue cease and desist orders based on a reasonable cause to believe that an institution has engaged, is engaging or is about to engage in an unsafe and unsound practice, separately and apart from whether the institution has technically violated a law or regulation. The commenter added that Congress entrusted the agencies with the power to determine whether practices are unsafe and unsound and attempt to halt such practices through supervision, even if a specific case may not constitute a violation of a written law or regulation.
Several commenters addressed supervisory criticisms and how they relate to guidance. Commenters suggested that supervisory criticisms should be specific as to practices, operations, financial conditions, or other matters that could have a negative effect. Commenters suggested that MRAs, memoranda of understanding and any other formal written mandates or sanctions should be based only on a violation of a statute or regulation. Similarly, commenters argued that there should be no references to guidance in
Commenters that opposed the proposal did not support restricting supervisory criticism or sanctions to explicit violations of law or regulation. One commenter expressed concern that requiring supervisors to wait for an explicit violation of law before issuing criticism would effectively erase the line between supervision and enforcement. One commenter emphasized the importance of bank supervisors basing their criticisms on imprudent bank practices that may not yet have ripened into violations of laws or rules but which if left unaddressed could undermine safety and soundness or pose harm to consumers.
One commenter argued that the agencies should state clearly that guidance can and will be used by supervisors to inform their assessments of banks' practices; that it may be cited as, and serve as the basis for, criticisms. According to the commenter, even under the “well-established law” described in the proposal, it is quite permissible for guidance to be used as a set of standards that may indeed inform a criticism, provided that application of the guidance is used for corrective purposes, if not to support an enforcement action.
According to one commenter, the proposal makes fine conceptual distinctions between, for example, issuing supervisory criticisms “on the basis of” guidance (which is apparently forbidden) and issuing supervisory criticisms that make “reference” to supervisory guidance (which continues to be permitted). The commenter suggested that is a distinction that it may be difficult for people to parse in practice. According to the commenter, a rule that makes such a distinction is likely to have a chilling effect on supervisors attempting to implement policy in the field. According to another commenter, the language allowing examiners to reference supervisory guidance to provide examples is too vague and threatens to marginalize the role of guidance to the point that it becomes almost useless in the process of issuing criticisms designed to correct deficient bank practices.
One commenter questioned the agencies' reference in the proposal to visitorial powers as an additional authority for early identification of supervisory concerns that may not rise to a violation of law, unsafe or unsound banking practice, or breach of fiduciary.
Several commenters made suggestions about how the agencies should issue and manage supervisory guidance. Some comments suggested that the agencies should clearly delineate between regulations and supervisory guidance. Commenters encouraged the agencies to regularly review, update, and potentially rescind outstanding guidance. One commenter suggested that the agencies rescind outstanding guidance that functions as a rule but has not gone through notice and comment. One commenter suggested that the agencies memorialize their intent to revisit and potentially rescind existing guidance, as well as limit multiple guidance documents on the same topic. Commenters suggested that supervisory guidance should be easy to find, readily available, online, and in a format that is user-friendly and searchable.
One commenter encouraged the agencies to issue principles-based guidance that does not contain the kind of granularity that could be misconstrued as binding expectations. According to this commenter, the agencies can issue separate FAQs with more detailed information but should clearly identify these as non-binding illustrations. This commenter also encouraged the agencies to publish proposed guidance for comment when circumstances allow. One commenter expressed concern that the agencies will aim to reduce the issuances of multiple supervisory guidance documents and will thereby reduce the availability of guidance in circumstances where guidance would be valuable.
As stated in the Proposed Rule, the 2018 Statement was intended to focus on the appropriate use of supervisory guidance in the supervisory process, rather than the standards for supervisory criticisms. The standards for issuing MRAs and other supervisory actions such as DORs were, therefore, outside the scope of this rulemaking. For this reason, and for reasons discussed earlier, the final rule does not address the standards for MRAs and other supervisory actions such as DORs. Similarly, because the NCUA is not addressing approaches to supervisory criticism in the final rule, including any criticism related to reputation risk, the final rule does not include standards for supervisory criticisms relating to “reputation risk.”
With respect to the comments on coverage of interpretive rules, the NCUA agrees with the commenter that interpretive rules do not, alone, “have the force and effect of law” and must be rooted in, and derived from, a statute or regulation.
With respect to the question of whether to adopt ACUS's procedures for allowing the public to request reconsideration or revision of an interpretive rule, this rulemaking, again, does not address interpretive rules. As such, the NCUA is not adding procedures for challenges to interpretive rules through this rulemaking.
In response to the comment that the agencies treat examples in guidance as “safe harbors,” the NCUA agrees that examples offered in guidance may provide reassurance about practices that, in general, may lead to safe and sound operation and compliance with regulations and statutes. The examples in guidance, however, are typically generalized. The question of whether the employment of the examples meets supervisory goals requires consideration of how an institution applies those examples under the facts and circumstances. In addition, the underlying legal principle of guidance is that it does not created binding legal obligation for either the public or an agency. As such, the NCUA does not intend to deem examples in guidance as categorically setting safe harbors.
In response to the comment that the proposal may undermine the important role that supervisory guidance can play by informing supervisory criticism and by serving to address conditions before those conditions lead to enforcement actions, the NCUA agrees that the appropriate use of guidance supports a more collaborative and constructive regulatory process that supports the safety and soundness of institutions and diminishes the need for enforcement actions. In addition, as noted by ACUS, guidance can make agency decision-making more predictable and uniform and shield regulated parties from unequal treatment, unnecessary costs, and unnecessary risk, while promoting compliance with the law. The NCUA intends, therefore, to continue using guidance to bolster the supervisory process. The NCUA does not view the final rule as weakening the role of guidance in the supervisory process. Further, the NCUA will continue to use guidance in a robust way to support the safety and soundness of credit unions. In response to the related question from these commenters, which suggested there is no basis for the rule, the NCUA notes the question of the role of guidance has been one of interest to regulated parties and other stakeholders over the past few years. The Petition is evidence of this interest. As such, the NCUA believes it will serve the public interest to reaffirm the appropriate role of supervisory guidance.
With respect to the comment that visitorial powers do not provide the authority to issue supervisory criticisms like DORs, the NCUA disagrees. The visitorial powers of financial regulators are well-established. The Supreme Court's decision in
In response to the commenter's request regarding guidance issued for public comment, the NCUA notes that it has made clear through the 2018 Statement and in this final rule that supervisory guidance (including guidance that goes through public comment) does not create binding, enforceable legal obligations. Rather, the NCUA issues guidance for comment in order to improve its understanding of an issue, gather information, or seek ways to achieve a supervisory objective most effectively. Similarly, examples that are included in supervisory guidance are not binding on institutions. Rather, these examples are intended to be illustrative of ways a supervised institution may implement safe and sound practices, appropriate consumer protection, prudent risk management, or other actions to comply with laws or regulations.
With respect to the commenter's request that the agencies affirm that they will apply statutory factors while processing applications, the NCUA affirms that the agency will continue to consider and apply all applicable statutory factors when processing applications.
In response to the question raised by some commenters concerning potential confusion between guidance and interpretive rules, the NCUA notes that interpretive rules are outside the scope of the rulemaking. In addition, as stated earlier, while both guidance and interpretive rules serve different purposes, both lack the force and effect of law. Interpretive rules must be rooted
In response to the two commenters opposing the Proposal, this final rule does not undermine any of the NCUA's safety and soundness authorities. Indeed, the final rule is designed to solidify the NCUA's ability to enforce the very matters of most importance. In addition, the NCUA notes the question of the role of guidance has been one of interest to regulated parties and other stakeholders over the past few years. The Petition is evidence of this interest. As such, the NCUA believes it will serve the public interest to reaffirm the appropriate role of supervisory guidance. Therefore, the NCUA is proceeding with the rule as proposed.
One credit union commenter stated that examiners should only use regulatory requirements as the basis to assess credit union operations, and afford credit unions the opportunity to demonstrate that their practices, which may deviate from the examples provided in supervisory guidance, nonetheless constitute safe and sound practices that meet regulatory requirements. The NCUA notes that the final rule clearly indicates that examiners will not criticize a supervised financial institution for, and the NCUA will not issue an enforcement action on the basis of, a “violation” of or “non-compliance” with supervisory guidance. Nevertheless, examiners may reference supervisory guidance to provide examples of safe and sound practices, appropriate consumer protection and risk management practices, and other actions for addressing compliance with laws or regulations.
Another commenter requested that all supervisory guidance be published for public comment before being issued. The commenter argued that this process would reinforce the nature of the guidance and provide credit unions a role in helping to achieve vetted guidance that is useful to their operations. The NCUA does not agree with this comment as publishing each supervisory guidance for public comment would prevent it from being issued timely to provide examples of safe and sound practices, appropriate consumer protection and risk management practices, and other actions for addressing compliance with laws or regulations where applicable. As stated in response to other comments, the NCUA's position is the underlying legal principal of guidance is that it does not create a binding legal obligation for either the public or an agency.
One comment stated that the NCUA should include a notice in each supervisory guidance indicating that it is nonbinding. The NCUA believes such a notice is not necessary, given that the final rule reflects the NCUA's position that the underlying legal principal of supervisory guidance is that it does not created binding legal obligation for either the public or an agency.
One comment recommended identifying existing and future issuances of NCUA Interpretive Rules and Policy Statements (IRPS) as either a covered supervisory guidance or an exempt interpretive rule to provide clarity for credit unions. The NCUA reiterates that interpretive rules are outside the scope of this rulemaking. However, as stated in the proposed rule, while both guidance and interpretive rules serve different purposes, both lack the force and effect of law. As for identification of NCUA IRPS issuances, the NCUA generally does identify guidance and interpretive rules and will continue to do so going forward.
Most comments by credit union affiliated commenters were beyond the scope of the rulemaking, including the need for coordination with other Federal and State regulatory authorities, consistency in applying guidance, the examination cycle, the need for an appeals process, and the need for the Board to issue more guidance on various topics. Given that these comments addressed issues not relevant to the guidance rulemaking, the NCUA has determined that it is more appropriate to assess them outside the context of this rulemaking. Nevertheless, the Board agrees with the commenters that is important to enhance coordination with other regulatory authorities and apply guidance consistently.
For the reasons discussed above, the final rule adopts the Proposed Rule without change. However, the NCUA has decided to issue a final rule that is specifically addressed to the NCUA and NCUA-supervised institutions, rather than the joint version that the five agencies included in their joint Proposal. Although many of the comments were applicable to all of the agencies, some comments were specific to particular agencies or to groups of agencies. Having separate final rules has enabled agencies to better focus on explaining any agency-specific issues to their respective audiences of supervised institutions and agency employees.
The Paperwork Reduction Act of 1995
The Regulatory Flexibility Act (RFA) generally requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities. A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined by the NCUA for purposes of the RFA to include federally insured credit unions with assets less than $100 million)
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, the NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rule will not have a substantial direct effect on the states, on the connection between the national government and the states, or on the
The NCUA has determined that this proposed rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999.
For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule.
The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
Administrative practice and procedure, Credit unions, Sunshine Act.
For the reasons stated in the preamble, 12 CFR part 791 is amended as follows:
12 U.S.C. 1766, 1781, 1786, 1787, 1789, and 5 U.S.C. 552b.
The NCUA issues regulations and guidance as part of its supervisory function. This subpart reiterates the distinctions between regulations and guidance, as stated in the Interagency Statement Clarifying the Role of Supervisory Guidance (Interagency Statement) and provides that the Statement is binding on the NCUA.
The Statement describes the official policy of the NCUA with respect to the use of supervisory guidance in the supervisory process. The Statement is binding on the NCUA.
Appendix A to this subpart does not alter the legal status of guidance that is authorized by statute, including but not limited to 12 U.S.C. 1781, 1786, and 1789, to create binding legal obligations.
The National Credit Union Administration is responsible for promoting safety and soundness and effective consumer protection at Federal credit unions. The NCUA is issuing this statement to explain the role of supervisory guidance and to describe its approach to supervisory guidance.
(1) The NCUA issue various types of supervisory guidance, including interagency statements, advisories, bulletins, policy statements, questions and answers, and frequently asked questions, to their respective supervised institutions. A law or regulation has the force and effect of law.
(2) The NCUA is clarifying the following policies and practices related to supervisory guidance:
(i) The NCUA intends to limit the use of numerical thresholds or other “bright-lines” in describing expectations in supervisory guidance. Where numerical thresholds are used, the NCUA intends to clarify that the thresholds are exemplary only and not suggestive of requirements. The agency will continue to use numerical thresholds to tailor, and otherwise make clear, the applicability of supervisory guidance or programs to supervised institutions, and as required by statute.
(ii) Examiners will not criticize (through the issuance of matters requiring attention, matters requiring immediate attention, matters requiring board attention, documents of resolution, and supervisory recommendations) a supervised financial institution for, and the NCUA will not issue an enforcement action on the basis of, a “violation” of or “non-compliance” with
(iii) Supervisory criticisms should continue to be specific as to practices, operations, financial conditions, or other matters that could have a negative effect on the safety and soundness of the financial institution, could cause consumer harm, or could cause violations of laws, regulations, final agency orders, or other legally enforceable conditions.
(iv) The NCUA also has at times sought, and may continue to seek, public comment on supervisory guidance. Seeking public comment on supervisory guidance does not mean that the guidance is intended to be a regulation or have the force and effect of law. The comment process helps the agency to improve its understanding of an issue, to gather information on institutions' risk management practices, or to seek ways to achieve a supervisory objective most effectively and with the least burden on institutions.
(v) The NCUA will aim to reduce the issuance of multiple supervisory guidance documents on the same topic and will generally limit such multiple issuances going forward.
(3) The NCUA will continue efforts to make the role of supervisory guidance clear in their communications to examiners and to supervised financial institutions and encourage supervised institutions with questions about this statement or any applicable supervisory guidance to discuss the questions with their appropriate agency contact.
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 February 3, 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 February 3, 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.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and
This rule is effective February 3, 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 February 3, 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:
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission”) is adopting a new rule that specifies several actions that the Commission, in its administration of the Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”), may take to promote the reliability and integrity of EDGAR submissions. The new rule establishes a process for the Commission to notify filers and other relevant persons of its actions under the rule as soon as reasonably practicable. In addition, the Commission is adopting amendments to delegate authority to the Director of the Commission's EDGAR Business Office to take actions pursuant to the new rule and two current rules relating to filing date adjustments and the continuing hardship exemption.
This rule is effective February 3, 2021.
Rosemary Filou, Chief Counsel; Monica Lilly, Senior Special Counsel; or Jane Patterson, Senior Counsel; EDGAR Business Office, at 202-551-3900, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
The Commission is adopting new rule 17 CFR 232.15 (“Rule 15”) under 17 CFR 232.10 through 232.903 (“Regulation S-T”), and new rule 17 CFR 200.30-19 (“Rule 30-19”) under 17 CFR 200.1 through 200.800, the Commission's Rules of Organization and Program Management.
Regulation S-T addresses, among other things, certain administrative issues related to EDGAR submissions.
To promote the reliability and integrity of EDGAR submissions and to provide transparency about our practices, the Commission proposed Rule 15 under Regulation S-T on August 21, 2020, to specify actions that the Commission may take to facilitate the resolution of administrative issues.
• Redact, remove, or prevent dissemination of personally identifiable information that if released may result in financial or personal harm to an individual (“Sensitive PII”);
• Prevent submissions that pose a cybersecurity threat;
• Correct system or Commission staff errors;
• Remove or prevent dissemination of submissions made under an incorrect EDGAR identifier;
• Prevent the ability to make submissions when there are disputes
• Prevent acceptance or dissemination of an attempted submission that it has reason to believe may be misleading or manipulative while evaluating the circumstances surrounding the submission, and allow acceptance or dissemination if its concerns are satisfactorily addressed;
• Prevent an unauthorized submission or otherwise remove a filer's access; and
• Remedy similar administrative issues relating to submissions.
We received several comment letters in response to the proposal.
Another commenter was generally supportive of the proposed Commission action when a submission contains Sensitive PII.
After consideration of the comments received, we are adopting Rule 15 substantially as proposed.
Rule 15 will not change filers' obligations under the Federal securities laws to ensure the accuracy and completeness of information in their EDGAR submissions. Moreover, in the vast majority of administrative and substantive EDGAR submission issues, filers will continue to address an error by submitting a filer corrective disclosure and nothing in Rule 15 will prevent a filer from continuing to do so.
Additionally, the Commission is adopting new Rule 30-19 to delegate authority to the Director of the Commission's EDGAR Business Office to take actions pursuant to the following rules under Regulation S-T: Rule 15, 17 CFR 232.13(b) (“Rule 13(b)”) (relating to adjustment of filing dates), and 17 CFR 232.202 (“Rule 202”) (relating to the continuing hardship exemption).
Rule 15 specifies that, in its administration of EDGAR, the Commission may take actions to promote the reliability and integrity of EDGAR submissions. Below we discuss the types of actions the Commission may take pursuant to Rule 15 to achieve those objectives.
We are adopting as proposed 17 CFR 232.15(a)(1) (“Rule 15(a)(1)”), which specifies that the Commission may, with regard to submissions on its public website: (i) Redact submissions containing Sensitive PII; (ii) remove submissions containing Sensitive PII; and/or (iii) prevent dissemination of submissions containing this information.
One commenter suggested that the Commission interpret the definition of Sensitive PII broadly to include additional categories of information that reflect modern expectations of privacy and physical and financial security risks.
The Commission has sought to reduce the risk that Sensitive PII included in EDGAR submissions may result in financial or personal harm to individuals, and will continue to do so.
The same commenter also suggested that the Commission provide that filers may initiate a request for redaction or removal of information from a submission containing Sensitive PII, including from any submissions made prior to the effectiveness of the rule. The commenter stated that the inclusion of Sensitive PII in historical EDGAR submissions (whether inadvertent or intentional) cannot be retroactively corrected by making an additional filer corrective disclosure. Moreover, the commenter suggested that the rule require the Commission to redact or remove such information if the filer demonstrates that the submission contains Sensitive PII.
The Commission currently receives requests from filers for redaction or removal of information from submissions containing Sensitive PII, and we anticipate continuing to receive and evaluate such requests. We do not believe, however, that the Commission should be required to redact or remove Sensitive PII each time a filer requests it. We believe it is appropriate to retain the flexibility to consider the accuracy of EDGAR information publicly disseminated on the Commission's website, the nature of and circumstances surrounding the Sensitive PII at issue, and the Commission's administrative and technical capacity to address the request. If a filer demonstrates that a submission contains Sensitive PII, the Commission will initially work with the filer to facilitate submission of a version in which the Sensitive PII is redacted. The Commission will then exercise its discretion to determine whether the redacted submission would be adequate or whether additional steps need to be taken pursuant to 17 CFR 232.15(a)(8) (“Rule 15(a)(8)”) (as described below), including potentially removing information from the Commission's website.
We are adopting as proposed 17 CFR 232.15(a)(2), which specifies that the Commission may prevent the submission to EDGAR of any submission that poses a cybersecurity threat, including but not limited to, those containing any malware or virus, and communicate as necessary with the filer regarding the submission. As discussed in the Proposing Release, Commission action to address cybersecurity threats in EDGAR submissions will benefit all EDGAR users and promote the reliability and integrity of EDGAR submissions.
We are adopting as proposed 17 CFR 232.15(a)(3), which specifies that if the Commission determines that a submission has not been processed by EDGAR, has been processed incorrectly by EDGAR, or contains an error attributable to the Commission staff, the Commission may correct and/or prevent dissemination of the submission and communicate as necessary with the filer to facilitate filer corrective disclosure. In each of these circumstances, the Commission typically first attempts to correct the error without unduly burdening filers.
We are adopting as proposed 17 CFR 232.15(a)(4), which specifies that the Commission may remove and/or prevent public dissemination of a submission made under an incorrect EDGAR unique identifying number
We are adopting as proposed 17 CFR 232.15(a)(5), which specifies that the Commission may prevent a filer's ability to make submissions if the Commission determines that a dispute exists as to which persons have the authority to make submissions on behalf of the filer, until the dispute is resolved by the disputing parties or by a court of competent jurisdiction. These disputes may arise, for example, when two or more parties each claim control of a filing entity and each demand access to
We are adopting a modification to proposed Rule 15(a)(6). The proposed rule specified that if the Commission has reason to believe that a submission or an attempted submission may be misleading or manipulative, the Commission may prevent acceptance or dissemination of the submission while evaluating the circumstances surrounding the submission.
After further consideration, we are slightly modifying proposed Rule 15(a)(6) to clarify that the Commission may continue to prevent acceptance or dissemination after it has evaluated the circumstances surrounding the submission if its concerns have not been satisfactorily addressed. If the Commission allows acceptance or dissemination of the submission, the initial or initially attempted filing date will be assigned to the submission, assuming the submission does not implicate other provisions of Rule 15. We received no comments on this aspect of the proposal.
We are adopting as proposed 17 CFR 232.15(a)(7), which specifies that the Commission may prevent the use of EDGAR access codes if it has reason to believe that there has been an unauthorized submission or an attempt to make an unauthorized submission on EDGAR. Under existing practice, when questions arise as to whether a particular submission or attempted submission was authorized, the Commission seeks to better understand the circumstances surrounding the submission and evaluate what steps, if any, to take in response. Rule 15 specifies that, in such situations, the Commission may prevent any further submissions by the filer or otherwise remove the filer's access to EDGAR. If its concerns are satisfactorily addressed, the Commission will allow the use of EDGAR access codes and permit the submission to proceed, assuming the submission does not implicate other provisions of Rule 15. We received no comments on this aspect of the proposal.
The Commission cannot anticipate every administrative submission issue that may arise in the future. Thus, we are adopting as proposed Rule 15(a)(8), which specifies the circumstances in which the Commission may take further appropriate steps to address a matter and communicate as necessary with the filer regarding a submission. Specifically, under the rule, the Commission may take such further steps if the Commission has reason to believe that, to promote the reliability and integrity of EDGAR submissions, it must address a submission issue that cannot be addressed solely by filer corrective disclosure or by the actions set forth in paragraphs (a)(1) through (7) of Rule 15. We received no comments on this aspect of the proposal.
Finally, we are adopting as proposed Rule 15(b), which provides that the Commission may act without advance notice to filers or any other person. Specifically, Rule 15(b) provides a method for the Commission to provide notice of its actions under the rule to a filer and any person the Commission determines is relevant to the matter (“relevant person”) as soon as practicable after those actions are taken. In response to commenters, we are clarifying that the term “relevant person” encompasses, in appropriate circumstances, a filer's vendor or supplier that made the related submission on behalf of the filer.
Three commenters were generally supportive of the proposed rule but expressed concern that the Commission may redact information from a submission without first contacting the filer.
As discussed in the Proposing Release, the Commission typically communicates and works with filers to address submission issues, and the Commission anticipates that it generally will continue to work with filers in advance of taking action under the rule.
The Commission is adopting new Rule 30-19 of the Rules of Organization and Program Management to delegate authority to the Director of the EDGAR Business Office to take action under Rule 15 and two other rules in Regulation S-T: (i) Rule 13(b), to adjust the filing date of an electronic filing; and (ii) Rule 202, to set the terms of, and grant or deny as appropriate, continuing hardship exemptions from the electronic submission requirements.
We have carefully considered the economic effects of final Rule 15 under Regulation S-T.
The Commission's current processes and procedures for resolving the enumerated administrative issues listed in the final rule and discussed above serve as the baseline against which we assess the final rule. This section discusses, as it relates to this rulemaking, filers' current usage of EDGAR and the Commission's processes for administering EDGAR.
Because of the variety of administrative issues that may arise in connection with EDGAR submissions, the Commission has developed procedures for identifying and addressing the issues described above, although the Commission has not published those procedures. Where possible, the Commission currently communicates with relevant filers to facilitate filer corrective disclosure to address problematic submissions. While filer corrective disclosure addresses the majority of known EDGAR submission issues, there are circumstances in which working with a filer does not address problematic submissions, such as when the filer is uncooperative or the Commission cannot validate a filer's authorization to make submissions. Additionally, in limited cases, the Commission has responded promptly to submission issues without first consulting relevant filers in order to avoid harm to investors and other EDGAR users who depend upon the accuracy of the information disseminated by EDGAR. For these submissions, the Commission acts expediently to minimize the time the public and the Commission are exposed to such harm. While the Commission typically notifies these filers of its actions afterwards, some filers may not know specifically why the Commission took action or the nature of the issue with the submission.
The final rule specifies the actions the Commission may take with respect to specific administrative issues that impact the Commission's ability to promote the reliability and integrity of EDGAR submissions. We believe the final rule will provide increased transparency about the Commission's administrative processes, which in turn may benefit filers and improve the Commission's efficiency in administering EDGAR. We believe, however, that Rule 15 would have limited economic effects because the rule largely codifies actions that the Commission may already take.
More transparency into how the Commission administers EDGAR may benefit filers in two ways. First, by specifying the types of issues for which the Commission may take action, the final rule could encourage filers to take additional actions to prevent these issues if they believe the benefits exceed the costs of preventative actions. Second, when the Commission must act to address a problematic submission prior to notifying a filer or when an issue cannot be addressed solely by a filer corrective disclosure, the final rule's formal notification requirement ensures that filers will receive timely notification of Commission action. To the extent that this requirement results in the Commission notifying filers of issues that they can correct, such as incorrect EDGAR identifiers, EDGAR access code disputes, or potentially misleading filings, filers may be able to benefit from rectifying issues sooner than they would have prior to the rule.
Because the final rule informs filers of possible actions the Commission may take and the Commission's process to promote the reliability and integrity of EDGAR submissions, the final rule will improve the efficiency of administering EDGAR. This benefit is likely to be limited because the Commission will continue to resolve most issues by contacting filers to facilitate filer corrective disclosure. Since filers may submit fewer filings with errors and the Commission and filers will be able to more quickly correct errors, the final rule could lead to more timely and accurate information in EDGAR, benefiting investors, research analysts, data aggregators, and other financial professionals.
To the extent that the final rule reduces the number of cybersecurity threats or reduces the administrative frictions in preventing cybersecurity threats, there may be benefits to the users of EDGAR.
Lastly, because EDGAR submissions generally do not require Sensitive PII,
The Commission finds, in accordance with section 553(b)(3)(A) of the Administrative Procedure Act (“APA”), that these amendments relate solely to agency organization, procedure, or practice and do not constitute a substantive rule. They are therefore not subject to the provisions of the APA requiring notice of rulemaking, opportunity for public comment, and advance publication of the amendments prior to their effective date. These changes are effective on February 3, 2021. Additionally, the Regulatory Flexibility Act of 1980
The amendments to Regulation S-T—General Rules and Regulations for Electronic Filings are adopted pursuant to statutory authority in Sections 6, 7, 8, 10, and 19(a) of the Securities Act,
Administrative practice and procedure, Authority delegations (Government agencies), Organization and functions (Government agencies).
Incorporation by reference, Reporting and recordkeeping requirements, Securities.
For the reasons discussed above, we are amending 17 CFR chapter II as follows:
15 U.S.C. 77c, 77
Pursuant to the provisions of Public Law 100-181, 101 Stat. 1254, 1255 (15 U.S.C. 78d-1, 78d-2), the Securities and Exchange Commission hereby delegates, until the Commission orders otherwise, the following functions to the Director of the EDGAR Business Office, to be performed by the Director or under the Director's direction by such other person or persons as may be designated from time to time by the Chairman of the Commission:
(a) With respect to the Securities Act of 1933 (15 U.S.C. 77a
(b) With respect to the Securities Act of 1933 (15 U.S.C. 77a
(c) With respect to the Securities Act of 1933 (15 U.S.C. 77a
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78
(a) In its administration of EDGAR, the Commission may take the following actions to promote the reliability and integrity of submissions made through EDGAR.
(1) If the Commission determines that a submission contains personally identifiable information that if released may result in financial or personal harm to an individual, which may comprise a single item of information or a combination of two or more items, the Commission may redact such information from the submission, prevent dissemination of the submission, and/or remove the submission from the Commission's public website, and may communicate as necessary with the filer to facilitate submission of a version in which such information is redacted;
(2) The Commission may prevent the submission to EDGAR of any submission that poses a cybersecurity threat, including but not limited to, submissions containing any malware or virus, and may communicate as necessary with the filer regarding the submission;
(3) If the Commission determines that a submission has not been processed by EDGAR, or has been processed incorrectly by EDGAR, or contains an error attributable to the Commission staff, the Commission may correct and/or prevent public dissemination of the submission and may communicate with the filer as necessary to facilitate the filer's submission of an amendment to, or a notice of withdrawal of, the filer's submission (a “filer corrective disclosure”);
(4) If the Commission determines that a submission is made under an incorrect EDGAR unique identifying number, the Commission may remove and/or prevent public dissemination of the submission and may communicate with the filer as necessary to facilitate a filer corrective disclosure;
(5) If the Commission determines that a dispute exists regarding the authority to make submissions on behalf of a filer, the Commission may prevent a filer's ability to make submissions until the dispute is resolved by the disputing parties or by a court of competent jurisdiction;
(6) If the Commission has reason to believe that an attempted submission may be misleading or manipulative, the Commission may prevent acceptance or dissemination of the submission unless, after evaluating the circumstances surrounding the submission, the Commission's concerns are satisfactorily addressed;
(7) If the Commission has reason to believe that a filer has made an unauthorized submission or attempted to make an unauthorized submission, the Commission may prevent any further submissions by the filer or otherwise remove the filer's access to EDGAR; and
(8) If the Commission otherwise has reason to believe that, to promote the reliability and integrity of submissions made through EDGAR, it must address a submission issue that cannot be addressed solely by filer corrective disclosure or by the actions set forth in paragraphs (a)(1) through (7) of this section, the Commission may take such further steps as are appropriate to address the matter and communicate as necessary with the filer regarding the submission.
(b) The Commission may act under paragraph (a) of this section without providing advance notice to the filer or any other person. As soon as reasonably practicable after taking action under paragraph (a) of this section, the Commission will provide written notice and a brief factual statement of the basis for the action to the filer and any other person the Commission determines is
(c) Nothing in this section prevents a filer from addressing an error or mistake in the filer's submission by making a filer corrective disclosure.
By the Commission.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (the “Commission”) is adopting revisions to Volumes I and II of the Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”) Filer Manual (“EDGAR Filer Manual” or “Filer Manual”) and related rules. The revisions substantially reduce the length of Volume I, and amend Volume I and related rules under Regulation S-T, including provisions regarding electronic notarizations and remote online notarizations, which include electronic signatures. The revisions to Volume II reflect changes made to EDGAR on December 14, 2020. The Commission is also providing notice and soliciting comments on the Form ID collection of information pursuant to the Paperwork Reduction Act of 1995.
For questions regarding updates to the Filer Manual and the related rule amendments, please contact Rosemary Filou, Chief Counsel; Monica Lilly, Senior Special Counsel; or Jane Patterson, Senior Counsel; in the EDGAR Business Office at 202-551-3900, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549. For questions regarding the submission form types allowing eligible business development companies and other closed-end investment companies to file automatic shelf registration statements and corresponding post-effective amendments and the submission form types for securities fee registration payments by closed-end investment companies, please contact Heather Fernandez in the Division of Investment Management at (202) 551-6708. For questions regarding the exhibits available for Regulation A form types, please contact Christian Windsor, Senior Special Counsel, in the Division of Corporation Finance at (202) 551-3419. For questions regarding the internal control over financial reporting (“ICFR”) auditor attestation, please contact Christian Windsor, Senior Special Counsel, in the Division of Corporation Finance at (202) 551-3419, or for questions regarding the related changes to the EDGAR XBRL validation, please contact the Office of Structured Disclosure in the Division of Economic and Risk Analysis at (202) 551-5494.
We are adopting an updated EDGAR Filer Manual, Volume I: “General Information,” Version 36 (December 2020) and Volume II: “EDGAR Filing,” Version 56 (December 2020) and amendments to 17 CFR 232.10 (“Rule 10”), 17 CFR 232.12 (“Rule 12”), and 17 CFR 232 301 (“Rule 301”) under 17 CFR 232.10 through 232.903 (“Regulation S-T”). The updated Filer Manual volumes are incorporated by reference into the Code of Federal Regulations. The revisions substantially reduce the length of Volume I of the Filer Manual while retaining the procedural requirements for making electronic submissions on EDGAR. The Volume I revisions also clarify the legal consequences of misstatements or omissions of fact in EDGAR submissions, and inform filers of the Commission's authority regarding submissions on EDGAR. The Commission is also amending Volume I of the Filer Manual and a related rule under Regulation S-T to allow applicants for EDGAR access to use electronic notarizations and remote online notarizations, which include electronic signatures, in addition to notarizations that include manual signatures. Moreover, the Commission is amending the same rule to exempt the notarized document requirements for EDGAR access from certain signature requirements in another rule under Regulation S-T. In addition, the Commission is amending a rule under Regulation S-T to reflect the Commission's current hours for submission of electronic filings. As a separate matter, the Commission is adopting amendments to Volume II of the Filer Manual to reflect changes made to EDGAR on December 14, 2020. Finally, the Commission is providing notice and soliciting comments on the Form ID collection of information pursuant to the Paperwork Reduction Act of 1995.
Volume I of the Filer Manual provides general information regarding electronic submissions to the Commission on EDGAR, including information concerning requirements for becoming an EDGAR filer.
In addition, the Commission is:
• Enhancing the statement in Volume I about the consequences of making false statements or omissions of fact in EDGAR submissions, and informing filers of the authority of the Commission to, and some of the circumstances in which the Commission may, prevent acceptance or dissemination of an attempted submission on EDGAR or revoke EDGAR access;
• Amending Rule 10 of Regulation S-T
• Amending Rule 10 of Regulation S-T to exclude the authentication document in Rule 10(b) from the signature requirements of 17 CFR 232.302 (“Rule 302”);
• Amending Rule 12 of Regulation S-T to reflect the Commission's current hours for submission of electronic filings and to conform to the Filer Manual;
• Making amendments to Volume II of the Filer Manual corresponding to the EDGAR updates in Release 20.4; and
• Providing notice and soliciting comments on potential changes to the burden estimates associated with the Form ID collection of information pursuant to the Paperwork Reduction Act of 1995.
The updated Volume I of the Filer Manual retains and streamlines procedural requirements pertaining to EDGAR filing times, access, maintaining accurate information, paying filing fees, and prohibiting submission of social security numbers to EDGAR. The updated Volume I omits extensive step-by-step instructions and elementary technical explanations including EDGAR screen shots and error messages, an explanation of browsers, and a glossary of terms. The Commission is making accessible, user-friendly instructions and information available to filers on the recently revised “EDGAR Information for Filers” web page on
The Commission is also removing technical explanations from Volume I of the Filer Manual that existed to assist a sub-section of filers who opted to use private industry software to construct filings outside of EDGAR, including using the Extensible Markup Language (XML) format.
Further, the updated Volume I of the Filer Manual clarifies the statement informing filers of the consequences of false statements or omissions of fact in submissions to EDGAR. Previously, Volume I only referenced potential criminal liability for intentionally making false statements or omissions of fact in submissions to the Commission in violation of 18 U.S.C. 1001.
Rule 10 of Regulation S-T previously required filers to submit a manually signed and notarized document as part of the application for EDGAR access.
Therefore, the Commission is updating Regulation S-T and Volume I of the Filer Manual to clarify that the Commission will accept electronic notarization and remote online notarization, which include electronic signatures, in connection with EDGAR access requests submitted pursuant to Rule 10 of Regulation S-T.
Finally, we are revising Rule 10 to exclude the authentication document required by Rule 10 from the signature requirements of Rule 302 of Regulation S-T.
The Commission is amending Rule 12(c) of Regulation S-T to reflect that electronic filings and other documents may be submitted “from 6 a.m. to 10 p.m., Eastern Time” instead of “by direct transmission, via dial-up modem or internet . . . from 8 a.m. to 10 p.m., Eastern Standard Time or Daylight Saving Time, whichever is currently in effect.” We are removing an antiquated and unnecessary reference to the method of submission and adjusting the filing times to reflect the Commission's current practice and the correct filing times set forth in the Filer Manual.
EDGAR was updated in Release 20.4, and corresponding amendments to Volume II of the Filer Manual are being made to reflect these changes, described below.
On April 8, 2020, the Commission adopted rules to modify the registration, communications, and offering processes for business development companies and other closed-end investment companies including allowing such eligible entities to file automatic shelf registration statements (ASRs) and corresponding post-effective amendments (POSASRs).
On March 12, 2020, the Commission adopted a requirement that issuers include a check box on the cover page of their Forms 10-K, 20-F, and 40-F annual reports to disclose whether they have obtained an ICFR auditor attestation under section 404(b) of the Sarbanes-Oxley Act.
On March 2, 2020, the Commission adopted amendments to the financial disclosure requirements for guarantors and issuers of guaranteed securities registered or being registered, and added a new exhibit requirement for Securities Act of 1933 registration statements and Securities Exchange Act of 1934 periodic reports, as well as Regulation A offering statements and reports, to improve those requirements for both investors and registrants.
• “EX1A-17 GNTR/ISSR” on form types DOS, DOS/A, 1-A, 1-A/A, and 1-A POS;
• “EX1K-17 GNTR/ISSR” on form types 1-K and 1-K/A;
• “EX1SA-17 GNTR/ISSR” on form types 1-SA and 1-SA/A;
• “EX1U-17 GNTR/ISSR” on form types 1-U and 1-U/A; and
• “ADD EXHB” on form types DOS, DOS/A, 1-A, 1-A/A, 1-A POS, 1-K, 1-K/A, 1-SA, 1-SA/A, 1-U, and 1-U/A.
To simplify future updates to the exhibits for these forms, EDGAR Release 20.4 adds “ADD EXHB” on form types DOS, DOS/A, 1-A, 1-A/A, 1-A POS, 1-
• “EX1A-15 ADD EXHB” from DOS, DOS/A, 1-A, 1-A/A, and 1-A POS form types;
• “EX1K-15 ADD EXHB” from 1-K and 1-K/A form types;
• “EX1SA-15 ADD EXHB” from 1-SA and 1-SA/A form types; and
• “EX1U-15 ADD EXHB” from 1-U and 1-U/A form types.
See Appendix E (Automated Conformance Rules for EDGAR Data Fields) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”
Finally, Volume II of the EDGAR Filer Manual has been revised to update contact information for certain divisions and offices. See Chapter 2 (Quick Guide to EDGAR Filing) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”
Along with the adoption of the updated Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of the current revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
The updated EDGAR Filer Manual is available at
Because the Filer Manual and rule amendments relate solely to agency procedures or practice and do not substantially alter the rights and obligations of non-agency parties, publication for notice and comment is not required under the Administrative Procedure Act (“APA”).
The effective date for the updated Filer Manual and the related rules is February 3, 2021. In accordance with the APA,
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form ID (OMB Control No. 3235-0328) must be completed and filed with the Commission by all individuals, companies, and other organizations who seek access to file electronically on the Commission's primary electronic filing system, EDGAR. Those seeking access to file on EDGAR typically include those who are required to make certain disclosures pursuant to the federal securities laws. The information provided on Form ID is an essential part of the security of EDGAR. Form ID is a not a public document because it is used solely for the purpose of screening applicants and granting access to EDGAR. Form ID must be submitted whenever an applicant seeks an EDGAR identification number and access codes to file on EDGAR. The Commission may consider enhancing the EDGAR access process to require filers that already have EDGAR identification numbers but do not have EDGAR access codes to submit a Form ID to obtain access codes to file on EDGAR. If these enhancements become effective, we estimate that approximately 48,493 filers will file Form ID annually and that it will take approximately 0.15 hours per response to prepare for a total of 7,274 annual burden hours. The estimate includes the number of filers without identification numbers and filers with identification numbers that seek to obtain access codes for purposes of submitting electronic filings on EDGAR.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments are invited on: (i) Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (ii) the accuracy of the agency's estimate of the burden imposed by the collection of information; (iii) ways to enhance the quality, utility, and clarity of the information collected; and (iv) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing.
Please direct your written comments to David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o Cynthia Roscoe, 100 F Street NE, Washington, DC 20549 or send an email to:
We are adopting the amendments to Regulation S-T under the authority in Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,
Incorporation by reference, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78
(b) * * *
(2) File, by uploading as a Portable Document Format (PDF) attachment to the Form ID filing, a notarized document, signed by the applicant, that includes the information required to be included in the Form ID filing and confirms the authenticity of the Form ID filing.
(c) The requirements of § 232.302 (Rule 302) do not apply to the notarized document required by paragraph (b)(2) of this section.
(c)
Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets forth the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 36 (December 2020). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 56 (December 2020). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must comply with these requirements in order for documents to be timely received and accepted. The EDGAR Filer Manual is available at
By the Commission.
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a permanment safety zone for certain waters of Bahia de Ponce, Ponce, Puerto Rico. This action is necessary to provide for the safety of life on these navigable waters during ship-to-ship liquefied gas transfer operations between liquefied gas carriers. This rule will prohibit persons and vessels from being in the safety zone when activated unless authorized by the Captain of the Port San Juan or a designated representative.
This rule is effective March 5, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Natallia Lopez, Sector San Juan Prevention Department, Waterways Management Division, U.S. Coast Guard; telephone 787-729-2380, email
On April 20, 2020, New Fortress Energy requested to begin conducting ship-to-ship liquefied natural gas (LNG) transfer operations in a location approximately three nautical miles south of Ponce, Puerto Rico (PR). Coast Guard Sector San Juan engaged with local stakeholders and determined the proposed location could accommodate regular anchoring and ship-to-ship liquefied gas (LG) transfer operations between LG carriers. The Captain of the Port San Juan (COTP) has determined that potential hazards associated with ship-to-ship LG transfer operations between LG carriers would be a safety concern for anyone within 100-yards of the location of the transfer operations. In response, on December 1, 2020, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Bahia de Ponce, Ponce, PR” (85 FR 77093). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended December 31, 2020 we received no comments.
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP has determined that potential hazards associated with transfer operations between LG carriers would be a safety concern for anyone within 100-yards of the location of the transfer operations. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone.
As noted above, we received no comments on the NPRM that published December 1, 2020. There are two changes in the regulatory text of this rule from the proposed rule in the NPRM. In § 165.788(a), under “
This rule establishes a permanent safety zone in certain waters of Bahia de Ponce, Ponce, PR where New Fortress Energy will be conducting ship-to-ship LNG transfer operations. These operations will be ongoing for the forseeable future. Accordingly, LG transfer operations will be held at various times on the waters of Bahia de Ponce, Ponce, PR.
This rule establishes a 100-yard safety zone in a location approximately three nautical miles south of Ponce, PR, while LG transfer operations are being conducted. No vessel or person will be permitted to enter the safety zone when activated without obtaining permission from the COTP or a designated representative.
Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the permanent safety zone by contacting the Captain of the Port San Juan by VHF-FM radio on Channels 16 and 22A, by calling Sector San Juan Command Center at (787) 289-2041, or via email to
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration and restrictions of the safety zone. The safety zone required for these operations is 100 yards, making the safety zone limited in size. The safety zone is limited to a location approximately three nautical miles south of Ponce, PR, making the zone limited in location. Additionally, the safety zone will be enforced only while LG transfer operations are being conducted, making it limited in duration. Vessels will be permitted to enter the safety zone when ship-to-ship transfer operations are not being conducted, limiting the restrictions associated with 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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone during ship-to-ship liquefied transfer operations lasting approximately 24 hours that would prohibit entry within 100 yards of the location of the transfer operations. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
The waters around liquefied gas carriers conducting ship-to-ship liquefied gas transfer operations in an area 100-yards around each vessel in the approximate position 17°54′20″ N, 066°35′6″ W. All coordinates are North American Datum 1983.
(b)
(2) Vessels encountering emergencies, which require transit through the safety zone, should contact the Coast Guard patrol craft or Duty Officer on VHF Channel 16. In the event of an emergency, the Coast Guard patrol craft may authorize a vessel to transit through the safety zone with a Coast Guard designated escort.
(3) The Captain of the Port and the Duty Officer at Sector San Juan, Puerto Rico, can be contacted at telephone number 787-289-2041. The Coast Guard Patrol Commander enforcing the safety zone can be contacted on VHF-FM channels 16 and 22A.
(4) Coast Guard Sector San Juan will, when necessary and practicable, notify the maritime community of periods during which the safety zones will be in effect by providing advance notice of scheduled ship-to-ship liquefied gas transfer operations of liquefied gas carriers via a Marine Broadcast Notice to Mariners.
(5) All persons and vessels must comply with the instructions of on-scene patrol personnel. On-scene patrol personnel include commissioned, warrant, or petty officers of the U.S. Coast Guard. Coast Guard Auxiliary and local or state officials may be present to inform vessel operators of the requirements of this section, and other applicable laws.
Department of Education.
Final regulations.
The Department of Education (Department) issues these final regulations to adjust the Department's civil monetary penalties (CMPs) for inflation. This adjustment is required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), which amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Adjustment Act). These final regulations provide the 2021 annual inflation adjustments being made to the penalty amounts in the Department's final regulations published in the
These regulations are effective February 3, 2021. The adjusted CMPs established by these regulations are applicable only to civil penalties assessed after February 3, 2021 whose associated violations occurred after November 2, 2015.
Levon Schlichter, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW, Room 6E235, Washington, DC 20202-2241. Telephone: (202) 453-6387. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
On request to the contact person listed in this section, individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.
A CMP is defined in the Inflation Adjustment Act (28 U.S.C. 2461 note) as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an
The Inflation Adjustment Act provides for the regular evaluation of CMPs to ensure that they continue to maintain their deterrent value. The Inflation Adjustment Act required that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every four years thereafter. The Department published its most recent cost adjustment to its CMPs in the
The 2015 Act (section 701 of Pub. L. 114-74) amended the Inflation Adjustment Act to improve the effectiveness of CMPs and to maintain their deterrent effect.
The 2015 Act requires agencies to: (1) Adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation. Catch-up adjustments are based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty was last adjusted by a statute other than the Inflation Adjustment Act, and the October 2015 CPI-U. Annual inflation adjustments are based on the percentage change between the October CPI-U preceding the date of each statutory adjustment, and the prior year's October CPI-U.
In these final regulations, based on the CPI-U for the month of October 2020, not seasonally adjusted, we are annually adjusting each CMP amount by a multiplier for 2021 of 1.01182, as directed by the Office of Management and Budget (OMB) Memorandum No. M-21-10 issued on December 23, 2020.
The following analysis calculates new CMPs for penalty statutes in the order in which they appear in 34 CFR 36.2. The penalty amounts are being adjusted up based on the multiplier of 1.01182 provided in OMB Memorandum No. M-21-10.
Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a significant regulatory action as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities in a material way (also referred to as “economically significant” regulations);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
We have determined that these final regulations: (1) Exclusively implement the annual adjustment; (2) are consistent with OMB Memorandum No. M-21-10; and (3) have an annual impact of less than $100 million. Therefore, based on OMB Memorandum No. M-21-10, this is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations as required by statute and in accordance with OMB Memorandum No. M-21-10. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.
Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For fiscal year 2021, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. These final regulations are not a significant regulatory action. Therefore, the requirements of Executive Order 13771 do not apply.
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2021 penalty amounts notwithstanding the requirements of 5 U.S.C. 553. Therefore, the requirements of 5 U.S.C. 553 for notice and comment and delaying the effective date of a final rule do not apply here.
Pursuant to 5 U.S.C. 601(2), the Regulatory Flexibility Act applies only to rules for which an agency publishes a general notice of proposed rulemaking. The Regulatory Flexibility Act does not apply to this rulemaking because section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2021 penalty amounts without publishing a general notice of proposed rulemaking.
These regulations do not contain any information collection requirements.
This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
Based on our own review, we have determined that these regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Claims, Fraud, Penalties.
Administrative practice and procedure, Colleges and universities, Consumer protection, Grant programs-education, Loan programs-education, Reporting and recordkeeping requirements, Selective Service System, Student aid, Vocational education.
For the reasons discussed in the preamble, the Secretary amends parts 36 and 668 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1221e-3 and 3474; 28 U.S.C. 2461 note, as amended by section 701 of Pub. Law 114-74, unless otherwise noted.
20 U.S.C. 1001-1003, 1070a, 1070g, 1085, 1087b, 1087d, 1087e, 1088, 1091, 1092, 1094, 1099c, 1099c-1, 1221e-3, and 3474; Pub. L. 111-256, 124 Stat. 2643; unless otherwise noted.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS closes the Atlantic southern zone for commercial Spanish mackerel in or from the Atlantic exclusive economic zone. NMFS has determined that the commercial quota for Spanish mackerel in the Atlantic southern zone will be reached by February 3, 2021. Therefore, NMFS closes the Atlantic southern zone to commercial harvest of Spanish mackerel on February 3, 2021. This closure is necessary to protect the Spanish mackerel resource in the Atlantic.
This temporary rule is effective from 6 a.m. eastern time on February 3, 2021, until 12:01 a.m. eastern time on March 1, 2021.
Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, or email:
The fishery for coastal migratory pelagic fish in the Atlantic includes king mackerel, Spanish mackerel, and cobia on the east
For management purposes, the commercial sector of Atlantic Spanish mackerel is divided into northern and southern zones. The southern zone consists of Federal waters off South Carolina, Georgia, and the east coast of Florida. The southern zone boundaries extend from the border of North Carolina and South Carolina, which is a line extending in a direction of 135°34′55″ from true north beginning at 33°51′07.9″ N latitude and 78°32′32.6″ W longitude to the intersection point with the outward boundary of the U.S. exclusive economic zone, to the border of Miami-Dade and Monroe Counties in Florida at 25°20′24″ N latitude.
The southern zone commercial quota for Atlantic Spanish mackerel is 2,667,330 lb (1,209,881 kg). Regulations at 50 CFR 622.388(d)(1)(i) require NMFS to close the commercial sector for Atlantic Spanish mackerel in the southern zone when the commercial quota is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for Atlantic Spanish mackerel in the southern zone will be reached by February 3, 2021. Accordingly, the commercial sector for Atlantic Spanish mackerel in the southern zone is closed effective at 6 a.m. eastern time on February 3, 2021, through February 28, 2021, the end of the current fishing year.
During the commercial closure, a person on a vessel that has been issued a valid Federal permit to harvest Atlantic Spanish mackerel may continue to retain this species in the southern zone under the recreational bag and possession limits specified in 50 CFR 622.382(a)(1)(iii) and (a)(2), as long as the recreational sector for Atlantic Spanish mackerel is open (50 CFR 622.384(e)(1)).
Also during the closure, Atlantic Spanish mackerel from the southern zone, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to Atlantic Spanish mackerel from the southern zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(2)).
Commercial harvest of Atlantic Spanish mackerel in the southern zone for the 2021-2022 fishing year begins on March 1, 2021.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.388(d)(1)(i), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the commercial closure for Atlantic Spanish mackerel have already been subject to notice and public comment, and all that remains is to notify the public of the commercial closure. Prior notice and opportunity for public comment on this action is contrary to the public interest because of the need to immediately implement the commercial closure to protect the Atlantic Spanish mackerel resource. The capacity of the fishing fleet allows for rapid harvest of the commercial quota, and any delay in the commercial closure could result in the commercial quota being exceeded. Prior notice and opportunity for public comment would require time and would potentially result in a harvest that exceeds the commercial quota.
For the aforementioned reasons, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of this action.
16 U.S.C. 1801
Office of the Comptroller of the Currency (OCC), Treasury.
Notice of proposed rulemaking with request for public comment.
The OCC is inviting comment on a proposed rule that would modify the requirements for national bank and Federal savings association premises.
Comments must be received by March 22, 2021.
You may submit comments to the OCC by any of the methods set forth below. Commenters are encouraged to submit comments through the Federal eRulemaking Portal, if possible. Please use the title “National Bank and Federal Savings Association Premises” to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:
•
• Click on the “Help” tab on the
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•
You may review comments and other related materials that pertain to this rulemaking action by the following methods:
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• Click on the “Help” tab on the
Matthew Tynan, Counsel; Sarah Turney, Counsel; Henry Barkhausen, Counsel; Chief Counsel's Office (202) 649-5490; Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219.
The Office of the Comptroller of the Currency (OCC) is issuing a notice of proposed rulemaking to amend its regulations on national bank or Federal savings association ownership of real property. The OCC also proposes to consolidate 12 CFR 7.3001 on sharing national bank or Federal savings association space and employees with the rule covering ownership of property. The OCC proposes to continue to cover the national bank and Federal savings association charters under the same regulation, but, because different statutory regimes cover each charter, the OCC seeks comment on whether to apply different requirements to national banks and Federal savings associations.
The OCC periodically reviews its regulations to eliminate outdated or otherwise unnecessary regulatory provisions and, where possible, to clarify or revise requirements imposed on national banks and Federal savings associations. As part of the periodic review that resulted in recent amendments to 12 CFR part 7, which take effect on April 1, 2021, the OCC determined that it would propose revisions to the rules governing national bank and Federal savings association premises currently codified at 12 CFR 7.1000, which the recent amendments to 12 CFR part 7 redesignated as to 12 CFR 7.1024.
National bank ownership of real estate is governed by 12 U.S.C. 29, an original component of the National Bank Act. Twelve U.S.C. 29 generally prohibits national banks from purchasing, holding, or conveying real estate except for a list of four exclusive exceptions. The first such purpose covers the authority of a national bank to hold real property “[s]uch as shall be necessary for its accommodation in the transaction of its business.”
Federal savings association ownership of premises is governed by the Home Owners Loan Act (HOLA). Although the HOLA does not specifically address a Federal savings association's investment in banking premises and there is no prohibition in the HOLA similar to 12 U.S.C. 29, historically, the Federal Home Loan Bank Board (FHLBB), the Office of Thrift Supervision (OTS), and the OCC have interpreted the HOLA to permit Federal savings associations to hold real estate only for their offices and related facilities with permission to rent or sell excess space in their offices and facilities and the OCC has issued regulations governing a Federal savings association's investment in banking premises pursuant to general supervisory and rulemaking authority under the HOLA.
The OCC implemented 12 CFR 7.1024 to cover national bank and Federal savings association ownership of real estate for their own use. However, 12 CFR 7.1024 does not provide a full set of standards implementing the requirements of 12 U.S.C. 29 and the HOLA regarding national bank and Federal savings association premises. Rather, 12 CFR 7.1024 is an interpretive rule that codifies specific OCC interpretations of 12 U.S.C. 29. Thus, although the rule contains a list of types of real estate that the OCC has found permissible for national bank and Federal savings association ownership, that list is not exhaustive. Moreover, significant standards relating to the permissibility of real estate ownership, such as the minimum percentage of bank occupancy required for a building to qualify as premises, are not addressed anywhere in OCC regulation.
Instead, the OCC has long deferred to court cases and published OCC precedent to cover the field of requirements for national bank and Federal savings association ownership of premises. The OCC historically chose not to define specific limitations for standards, such as percentages of occupancy,
Although this precedent-based approach provides flexibility, it comes with several limitations. First, since precedent is necessarily responsive to presented facts, reliance on precedent means there is no clear rule to give notice to banks or the public of what forms of real estate ownership are permissible for a bank. Published OCC precedent by its nature typically describes fact patterns found to be permissible. Therefore, reliance on precedent alone makes it difficult for the industry and the public to understand what set of facts would be impermissible. Given the time and effort often required to plan an investment in premises, delays and uncertainty caused by unclear legal standards can be problematic.
Second, national bank premises precedent was largely formed at a time when the banking industry was different than the one in existence today. Many of the most important cases decided on premises occurred at a time when most banks operated entirely out of a single headquarters. The principles drawn from those cases remain relevant in the present day, but the reality of a modern large bank is very different than a bank that existed prior to interstate branching. Bank premises rules in the present day must apply to both
Finally, commercial real estate itself has changed greatly in the past several decades in ways that are difficult to square with premises precedent. The majority of OCC and OTS premises precedent concerns either branches or standalone office space, as those were the typical premises arrangements for banking operations in the 20th century. Recent years have seen the growth of mixed-use developments combining office space with retail space, residential space, and other uses not typically found in a traditional office building. Some industries have moved towards a comprehensive campus arrangement providing employees with amenities and working arrangements previously not present in an office environment. Finally, with the development of robust teleconferencing and the arrival of the COVID-19 pandemic, many companies are moving towards offsite, shared, or virtual work spaces. It is increasingly difficult for national banks and Federal savings associations to rely on precedent focusing on traditional office arrangements to determine whether and to what extent they may own mixed-use developments, install amenities to compete with those offered by other industries (including technology companies), or make use of alternative work arrangements.
For these reasons, the OCC proposes these revisions to 12 CFR 7.1024 to codify and clarify a transparent and consistent set of principles for national bank and Federal savings association premises. The OCC intends these regulations to meet the needs of modern national banks and Federal savings associations while ensuring consistent application of and adherence to the limitations of 12 U.S.C. 29 and the HOLA.
The OCC is proposing to revise § 7.1024 to provide general standards the OCC will use in determining whether the acquisition and holding of real estate is necessary for the transaction of a national bank's or Federal savings association's business. Revisions include implementing an occupancy test and excess capacity standards that would allow national banks and Federal savings associations to ascertain better whether an acquisition or holding of real estate is permissible under 12 U.S.C. 29 or the HOLA. The OCC has determined that national banks and the public would benefit from clear standards related to the requirements and expectations for real estate to be considered necessary for the transaction of a national bank's or Federal savings association's business as required by 12 U.S.C. 29 or the HOLA. Current § 7.1024 and various legal interpretations provided examples of permissible holdings, but the OCC has determined that, for the reasons articulated above, these examples do not provide general principles national banks could apply to new acquisitions. Without clear principles, there is the potential for inconsistent application of 12 U.S.C. 29, the HOLA, and 12 CFR 7.1024. The proposed revisions are intended to provide for more consistent application of 12 U.S.C. 29, the HOLA, and 12 CFR 7.1024.
Proposed § 7.1024(a) provides certain definitions used in the proposed rule. Bank occupied office premises is defined in proposed § 7.1024(a)(1) as bank occupied premises containing offices where professional or clerical duties are performed.
Bank occupied premises is defined in proposed § 7.1024(a)(2) as real estate acquired and held in good faith in which more than 50 percent of each building or severable piece of land is used by bank persons, including facilities that may be operated by third parties to provide amenities and services to bank persons or otherwise facilitate bank business operations. This definition encompasses a variety of factual situations, including a bank's acquisition of a single premises building or a bank's development of a premises campus. As reflected in the above definition, in any factual situation the OCC would apply the 50 percent occupancy standard to each building or severable piece of land. In order for a building or severable piece of land to be considered bank occupied premises, more than 50 percent of the space must be used by, or for, bank persons to facilitate bank business operations. Space that facilitates bank business operations would include facilities operated by third parties to provide amenities and services to bank persons that facilitate bank business operations; examples of such facilities include an office gym, cafeteria, daycare, or printing center. In calculating the occupancy percentage, the national bank or Federal savings association would look at each building or severable piece of land using the amount of space that is used by or for bank persons as the numerator and the overall space of the building or severable piece of land as the denominator. As an example, a national bank or Federal savings association that acquires and holds a building in good faith and in which the national bank or Federal savings association uses 4,000 square feet of the 6,000 square foot building for a bank branch, bank offices, gym for bank persons' use, and cafeteria for bank persons' use, the occupancy percentage would be approximately 67 percent and the national bank or Federal savings association could rent the remaining 2,000 square feet of the building, for example as ground floor retail space, in order to avoid economic loss or waste in the real estate consistent with § 7.1024(c).
Bank persons is defined in proposed § 7.1024(a)(3) as a national bank's or Federal savings association's employees, contractors, consultants, vendors, and any other individuals who are engaged in the national bank's or Federal savings association's business.
Impermissible premises is defined in proposed § 7.1024(a)(4) as real estate that is not bank occupied premises or that otherwise does not conform with the requirements of this section. Impermissible premises is any property not expressly permitted under this section, including real estate in which the national bank or Federal savings association uses 50 percent or less of the building or severable piece of land for bank persons or the facilitation of bank business operations. Impermissible premises would also include real estate in which a national bank or Federal savings association occupies 50 percent or more but does not comply with the excess space and capacity provisions of proposed § 7.1024(c). Real estate held under the transition provision in proposed § 7.1024(g) would not be considered impermissible premises.
Shared space is defined in proposed § 7.1024(a)(5) as bank occupied office premises that a national bank or Federal savings association shares with a third party to enhance the national bank's or Federal savings association's business operations. The OCC is proposing to remove the shared space provisions from 12 CFR 7.3001 and instead include them in proposed § 7.1024(e) to eliminate confusion regarding the interaction of the shared space provisions with the permissibility provisions of 12 CFR 7.1024. These proposed provisions are substantively unchanged from the current rule.
Proposed § 7.1024(b) provides that a national bank or Federal savings association may acquire, hold, or convey real estate for use as bank occupied premises.
Proposed § 7.1024(c) sets forth the principles of the excess capacity doctrine
Proposed § 7.1024(c)(1) provides that a national bank or Federal savings association may, in order to optimize the use of bank occupied premises or avoid economic loss or waste, permit third parties to use excess space or capacity in real estate legitimately acquired or developed by the national bank or Federal savings association for its banking business. The proposal also provides that such excess space or capacity must have a nexus with the transaction of bank business or bank operations such that it is acquired or held to provide the national bank or Federal savings association with a business location rather than as an investment in real estate. A national bank or Federal savings association must be able to demonstrate a nexus between its ownership of the property and the transaction of its business or bank operations. One way to demonstrate such a nexus would be for the national bank or Federal savings association to show in its business plan how the property supports its business. Demonstrating that there is a nexus between the ownership of property and the transaction of its business allows the national bank or Federal savings association to demonstrate that such property was acquired or developed in good faith and not for a speculative purpose, consistent with statutory requirements. Although a national bank or Federal savings association may sell or lease excess space or capacity legitimately acquired or developed, a national bank or Federal savings association acquiring or developing
Excess space is space in bank occupied premises that is not being used by bank persons or for bank operations. Excess capacity in bank occupied premises can be either temporal or space-based. An example of temporal excess capacity is a bank auditorium that is used after bank business hours by members of the local community. An example of space-based excess capacity is a call center in which the bank needs space for 100 employees during eight months of the year but only needs space for 80 employees during the remaining four months of the year. In both examples, the space can be used by non-bank persons as long as the space was legitimately acquired or developed by the bank for its operations or business as required by § 7.1024(c)(1).
Proposed § 7.1024(c)(2) discusses situations in which legitimate excess space or capacity may be used by third parties. Section § 7.1024(c)(2)(i) through (iv) have analogous provisions in the excess capacity provisions for electronic activities located in 12 CFR 7.5004. Section 7.1024(c)(2)(i) provides that excess space or capacity can be used by third parties to the extent that the real estate acquired is consistent with the real estate available in the market. For example, if a national bank or Federal savings association is located in an area in which strip malls are the predominant type of commercial real estate, then a national bank or Federal savings association may be able to acquire a strip mall if the national bank or Federal savings association would occupy greater than 50 percent of the space and lease out the remaining space. However, as the national bank or Federal savings association must have good faith and a non-speculative purpose in order for real estate to be legitimately acquired, a national bank or Federal savings association would need to analyze carefully whether this requirement would be met if many smaller strip malls than the one it acquired were available or if there were many free standing buildings more appropriately sized for bank purposes available in the market.
Section 7.1024(c)(2)(ii) provides that a national bank or Federal savings association may acquire and retain additional space or capacity, beyond its present needs, if it is reasonably necessary for planned future expansion or to meet the bank's future expected banking needs as long as the bank uses the additional space or capacity in the real estate acquired for future bank expansion within five years. A national bank or Federal savings association may acquire real estate intended to be used for future banking purposes and may permit third parties to use this excess space or capacity, but the national bank or Federal savings association must use this real estate for banking purposes within five years of acquisition. The OCC understands that it is prudent for a national bank or Federal savings association to plan for future expansion and use, so a national bank or Federal savings association may legitimately acquire and develop real estate intended for future use as long as that real estate is used by the national bank or Federal savings association within five years of its acquisition or development. If the property does not become bank occupied premises within five years, it will become Other Real Estate Owned (OREO) and, subject to 12 U.S.C. 29 for national banks and 12 CFR 34.82 for national banks and Federal savings associations, must be disposed of within five years of becoming OREO, unless the bank requests an extension of up to an additional five years.
Proposed § 7.1024(c)(2)(iii) provides that a national bank or Federal savings association may lease excess capacity resulting from a fluctuation caused by the bank's need to use the full capacity of a space during peak periods but not in other off-peak periods. This situation is similar to the example discussed above related to a call center which the bank uses all 100 available seats during eight months of the year but only used 80 during the other four months. The bank may allow third parties to use the excess 20 seats in its call center provided the capacity was legitimately acquired for bank operations and does not impede the safe and sound operation of the bank.
Proposed § 7.1024(c)(2)(iv) provides that a national bank or Federal savings association may lease excess capacity or space that is no longer needed due to a decline in the level of banking operations. In this situation, a bank acquired real estate for use in its banking operations and, based on a decline in bank activity or operation, no longer needs all of the space. The nexus between national bank or Federal savings association ownership of a building and its banking operations becomes clearer the closer the bank's occupancy approaches one hundred percent. As with excess capacity in data processing, the OCC presumes a certain percentage of use of the property to be permissible. The bank may allow third parties to use the space provided the bank still otherwise occupies more than 50 percent of the real estate as required by § 7.1024(a)(2).
Proposed § 7.1024(c)(2)(v) provides that a national bank or Federal savings association may permit third parties to use bank occupied premises after bank business hours.
The OCC recognizes that often national banks and Federal savings associations are asked or required by outside parties, such as a local government, to make commitments to allow third party or public use in order to acquire or hold real estate. When such commitments are requested or required, the national bank or Federal savings association should inform the appropriate OCC supervisory office of such requests and share such commitments and other relevant information with the appropriate OCC supervisory office.
Proposed § 7.1024(d) provides that a national bank or Federal savings association may not acquire or hold impermissible premises. Proposed § 7.1024(a)(4) defines impermissible premises as real estate that is not bank occupied premises or that otherwise does not conform with the requirements of this section. If the real estate acquisition or holding would not conform with the requirements of § 7.1024, then it would be impermissible.
Proposed § 7.1024(e) substantially imports current 12 CFR 7.3001 concerning the sharing of national bank or Federal savings association space and employees in jointly held bank occupied office premises covering situations where a bank and another business jointly hold and share the same space as opposed to a bank leasing a separate space within a building to a third party. Proposed § 7.1024(e) provides guidance on how to share offices and employees in a manner that protects customers and is consistent with safe and sound banking practices. The proposed rule would not alter or affect existing precedent applicable to 12 CFR 7.3001. Proposed § 7.1024(e)(4), like current 12 CFR 7.3001(d), provides that in conducting sharing arrangements, national banks and Federal savings associations would be required to ensure that each arrangement complies with all applicable laws or regulations. Proposed § 7.1024(e)(4), like current 12 CFR 7.3001(d), lists three requirements, which are illustrative and not exhaustive.
Proposed § 7.1024(f) provides technical information related to permissible means of holding real estate and fixed assets. These provisions are substantially similar to the provisions in current 12 CFR 7.1024(a)(3), (b), and (c).
Proposed § 7.1024(g) provides that as of XX, 20XX, a national bank or Federal savings association that holds an investment in real estate, fixed assets, banking premises, or other real property that complies with the legal requirements in effect prior to XX, 20XX, but would violate any provision of proposed § 7.1024, would be permitted to continue to hold the investment in accordance with the prior legal requirements. However, a national bank or Federal savings association holding such an investment cannot modify, expand, or improve the investment, except for routine maintenance, without the prior approval of the appropriate OCC supervisory office. Proposed § 7.1024(g) grandfathers national banks or Federal savings associations that currently have permissible real estate investments that would no longer be permissible under the proposed revisions. The proposed rule would supersede outstanding OCC precedent (and former OTS precedent) in this area to the extent it is inconsistent with the proposed rule. While national banks and Federal savings associations would be able to continue to rely on this precedent, including interpretive letters, with respect to current real estate investments, national banks and Federal savings associations would not be able to rely on this precedent with respect to future real estate investments. The proposed rule would not affect outstanding precedent regarding 12 CFR 7.1000 or 12 CFR 7.3001.
Computer technology, Credit, Derivatives, Federal savings associations, Insurance, Investments, Metals, National banks, Reporting and recordkeeping requirements, Securities, Security bonds.
For the reasons stated in the preamble, the OCC proposes to amend 12 CFR part 7 as follows.
12 U.S.C. 1
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(c)
(1) A national bank or Federal savings association may, in order to optimize the use of bank occupied premises or avoid economic loss or waste, permit third parties to use excess space or capacity in real estate legitimately acquired or developed by the national bank or Federal savings association for its banking business. Such excess space or capacity must have a nexus with the transaction of the bank's business or bank operations for the national bank or Federal savings association such that it is acquired or held to provide the bank with a business location rather than as an investment in real estate.
(2) With respect to bank occupied premises, legitimate excess space or capacity that may be used by third parties can arise in a variety of situations, including the following:
(i) Due to the characteristics of the real estate available in the market, the space or capacity to meet a national bank or Federal savings association's requirements exceeds its present needs;
(ii) The acquisition and retention of additional space or capacity, beyond present needs, reasonably may be necessary for planned future expansion or to meet a national bank's or Federal savings association's expected future banking needs as long as the national bank or Federal savings association uses the additional capacity in the real estate acquired for future national bank or Federal savings association expansion or banking needs within five years;
(iii) Requirements for capacity fluctuate because a national bank or Federal savings association may need to use the full capacity of a space during peak periods resulting in periods when its capacity is underutilized;
(iv) After the initial acquisition of real estate thought to be fully needed for banking operations, a national bank or Federal savings association experiences a decline in the level of banking operations or an increase in efficiency resulting in underutilized space or capacity; and
(v) A national bank or Federal savings association has capacity to allow third parties after-hours use of bank occupied premises.
(d)
(e)
(1)
(2)
(i) A national bank or Federal savings association employee may act as agent for the other business; or
(ii) An employee of the other business may act as agent for the national bank or Federal savings association.
(3)
(i) The other business is conspicuously, accurately, and separately identified;
(ii) Shared employees clearly and fully disclose the nature of their agency relationship to customers of the national bank or Federal savings association and of the other businesses so that customers will know the identity of the national bank, Federal savings association, or other business that is providing the product or service;
(iii) The arrangement does not constitute a joint venture or partnership with the other business under applicable state law;
(iv) All aspects of the relationship between the national bank or Federal savings association and the other business are conducted at arm's length, unless a special arrangement is warranted because the other business is a subsidiary of the national bank or Federal savings association;
(v) Security issues arising from the activities of the other business on the premises are addressed;
(vi) The activities of the other business do not adversely affect the safety and soundness of the national bank or Federal savings association;
(vii) The shared employees or the entity for which they perform services are duly licensed or meet qualification requirements of applicable statutes and regulations pertaining to agents or employees of such other business; and
(viii) The assets and records of the parties are segregated.
(4)
(i) The national bank or Federal savings association must ensure compliance with all applicable statutory and regulatory provisions governing national bank or Federal savings association transactions with these persons or entities;
(ii) The parties must comply with all applicable fiduciary duties; and
(iii) The parties, if they are in competition with each other, must consider limitations, if any, imposed by applicable antitrust laws.
(f)
(1)
(2)
(3)
(i)
(ii)
(g)
This document was received at the Office of the Federal Register on December 31, 2020.
Internal Revenue Service (IRS), Treasury.
Proposed rule; notice of hearing.
This document provides a notice of public hearing on proposed regulations setting forth guidance on the average income test for purposes of the low-income housing credit.
The public hearing is being held on Wednesday, March 24, 2021 at 12 p.m. The IRS must receive speakers' outlines of the topics to be discussed at the public hearing by Friday, March 5, 2021. If no outlines are received by March 5, 2021, the public hearing will be cancelled.
The public hearing is being held by teleconference. Individuals who want to testify (by telephone) at the public hearing must send an email to
Concerning these proposed regulations, Dillon Taylor or Michael J. Torruella Costa at (202) 317-4137; concerning submissions of comments, the hearing, and the access code to attend the hearing by teleconferencing, Regina Johnson at (202) 317-5177 (not toll-free numbers) or
The subject of the public hearing is the notice of proposed rulemaking REG-119890-18 that was published in the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments telephonically at the hearing that previously submitted written comments by December 29, 2020, must submit an outline on the topics to be addressed and the amount of time to be devoted to each topic by March 5, 2021.
A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available by emailing your request to
Individuals who want to attend (by telephone) the public hearing must also send an email to
The telephonic hearing will be made accessible to people with disabilities. To request special assistance during the telephonic hearing please contact the Publications and Regulations Branch of the Office of Associate Chief Counsel (Procedure and Administration) by sending an email to
Any questions regarding speaking at or attending a public hearing may also be emailed to
Internal Revenue Service (IRS), Treasury.
Proposed rule; notice of hearing.
This document provides a notice of public hearing on proposed regulations relating to the new mandatory 60-day postponement of certain time-sensitive tax-related deadlines by reason of a Federally declared disaster.
The public hearing is being held on Tuesday, March 23, 2021 at 10:00 a.m. The IRS must receive speakers' outlines of the topics to be discussed at the public hearing by Monday, March 15, 2021. If no outlines are received by March 15, 2021, the public hearing will be cancelled.
The public hearing is being held by teleconference. Individuals who want to testify (by telephone) at the public hearing must send an email to
Concerning the proposed regulations, William V. Spatz at (202) 317-5461; concerning submissions of comments, the hearing, and the access code to attend the hearing by teleconferencing, Regina Johnson at (202) 317-5177 (not toll-free numbers) or
The subject of the public hearing is the notice of proposed rulemaking REG-115057-20 that was published in the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments telephonically at the hearing that previously submitted written comments by March 15, 2021, must submit an outline on the topics to be addressed and the amount of time to be devoted to each topic by March 15, 2021.
A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available by emailing your request to
Individuals who want to attend (by telephone) the public hearing must also send an email to
The telephonic hearing will be made accessible to people with disabilities. To request special assistance during the telephonic hearing please contact the Publications and Regulations Branch of the Office of Associate Chief Counsel (Procedure and Administration) by sending an email to
Any questions regarding speaking at or attending a public hearing may also be emailed to
AbbVie, Inc. (AbbVie) submitted a notification of proposed production activity to the FTZ Board for its facilities in North Chicago and Lake County, Illinois. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on January 27, 2021.
AbbVie already has authority to produce pharmaceutical products within Subzone 22S. The current request would add a finished product and a foreign status material to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status material and specific finished product described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt AbbVie from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, for the foreign-status materials/components noted below and in the existing scope of authority, AbbVie would be able to choose the duty rates during customs entry procedures that applies to IMBRUVICA® tablets (duty-free). AbbVie would be able to avoid duty on foreign-status components which become scrap/waste. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The material sourced from abroad is Ibrutinib active pharmaceutical ingredient (duty rate 6.5%). The request indicates that Ibrutinib is subject to duties under Section 301 of the Trade Act of 1974 (Section 301), depending on the country of origin. The applicable Section 301 decisions require subject merchandise to be admitted to FTZs in privileged foreign status (19 CFR 146.41).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Christopher Wedderburn at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty order on citric acid and certain citrate salts (citric acid) from Thailand covering the period of review (POR) July 1, 2019, through June 30, 2020, in part, with respect to Niran (Thailand) Co., Ltd. (Niran), based on a timely withdrawal of the request for review for Niran.
Applicable February 3, 2021.
Joy Zhang, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1168.
On July 1, 2020, Commerce published in the
On September 18, 2020, Niran filed a no-shipment certification.
The merchandise covered by the order is citric acid and certain citrate salts from Thailand. The scope of the order 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 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 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.
The scope 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.
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, if included in a mixture or blend, 3824.99.9295 of the HTSUS. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.99.9295 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if a party who requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The aforementioned withdrawal request was timely submitted, and no other interested party requested an administrative review of this particular company. Therefore, in accordance with 19 CFR 351.213(d)(1), and consistent with our practice,
The review will continue with respect to COFCO and Sunshine.
Commerce will instruct CBP to assess antidumping duties on all appropriate entries. For Niran, for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, during the period July 1, 2019, through June 30, 2020, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP no earlier than 35 days after the date of publication of this rescission notice in the
This notice serves as a 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 doubled antidumping duties.
This notice serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under an 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. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce
Based on affirmative final determinations by the Department of Commerce (Commerce) and the International Trade Commission (ITC), Commerce is issuing a countervailing duty order on prestressed concrete steel wire strand (PC strand) from the Republic of Turkey (Turkey).
Applicable February 3, 2021.
Jacob Garten at (202) 482-3342, AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On December 11, 2020, Commerce published its affirmative final determination in the countervailing duty investigation of PC Strand from
The scope of the investigation is PC strand from Turkey. For a complete description of the scope of this order,
On January 25, 2021, in accordance with sections 705(b)(1)(A)(i) and 705(d) of the Act, the ITC notified Commerce of its final determination in this investigation, in which it found that an industry in the United States s materially injured by reason of imports of PC strand from Turkey.
Countervailing duties will be assessed on unliquidated entries of PC strand from Turkey entered, or withdrawn from warehouse, for consumption on or after September 21, 2020, the date of publication of the
In accordance with section 706 of the Act, Commerce will direct CBP to suspend liquidation of PC strand from Turkey, as described in the appendix to this notice, effective on the date of publication of the ITC's notice of final determination in the
Section 703(d) of the Act states that instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months. In the underlying investigation, Commerce published the
Therefore, in accordance with section 703(d) of the Act, we will instruct CBP to terminate the suspension of liquidation and to liquidate, without regard to countervailing duties, unliquidated entries of PC strand from Turkey, entered, or withdrawn from warehouse, for consumption, on or after January 20, 2021, the date on which the provisional measures expired, until and through January 28, 2021, the day preceding the date of publication of the ITC's final injury determination in the
This notice constitutes the countervailing duty order with respect to PC strand from Turkey, pursuant to section 706(a) of the Act. Interested parties can find a list of countervailing duty orders currently in effect at
The merchandise covered by this order is prestressed concrete steel wire strand (PC strand), produced from wire of non-stainless, non-galvanized steel, which is suitable for use in prestressed concrete (both pretensioned and post-tensioned) applications. The product definition encompasses covered and uncovered strand and all types, grades, and diameters of PC strand. PC strand is normally sold in the United States in sizes ranging from 0.25 inches to 0.70 inches in diameter. PC strand made from galvanized wire is only excluded from the scope if the zinc and/or zinc oxide coating meets or exceeds the 0.40 oz./ft2 standard set forth in ASTM-A-475.
The PC strand subject to this order is currently classifiable under subheadings 7312.10.3010 and 7312.10.3012 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.
This is a decision pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301). On November 25, 2020, the Department of Commerce published a notice in the
Docket Number: 20-008. Applicant: Rice University, 6100 Main Street, Houston, TX 77005. Instrument: Signal Acquisition ASCI. Manufacturer: LiMicro, China. Intended Use: See Notice at 85 FR 75302-03, November 25, 2020. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as this is intended to be used, that were being manufactured in the United States at the time of order. Reasons: According to the applicant, the instrument will be used to study and investigate in-vivo large-scale, high-density, long-term, neutral recording to integrate the signal acquisition instrument that it plans to purchase with its custom developed ultra-flexible nano electronic thread (NET) microelectrodes as a neural recording system to monitor chronic neural signals in freely behaving animals. The applicant also plans to investigate the formation of connections between various brain regions and the evolution of the neutral connections over extended periods. This large-scale, high-density, long-term neural recording study has the potential to help understand the fundamental mechanisms of neural circuitry and explore treatments for neurological conditions.
Docket Number: 20-009. Applicant: University of Chicago, Chemistry E005A, 929 E 57th Street (loading docket behind 5741 S Drexel Avenue), Chicago, IL 60637. Instrument: White Dwarf Optimal Parametric Amplifier System (OPCPA). Manufacturer: Class 5 Photonics, GmbH, Germany. Intended Use: According to the applicant, the instrument will be used to study and determine how the local electronic structure of nanostructured materials is related to their morphology, and directly measure the electronic transitions at buried interfaces in materials, controlling anisotropic charge transport via photoinduced strain effects, manipulating energy transfer in polaritonic systems. The OPCPA is a work-horse laser system for simultaneous use with multiple experiments. The experiments to be conducted involve time-resolved photoemission microscopy of both occupied and unoccupied electronic structure of materials, heterodyned electronic sum-frequency-generation spectroscopy, transient absorption spectroscopy.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold meetings of the following: Law Enforcement Committee; Habitat and Ecosystem-Based Management Committee, Mackerel Cobia Committee, Snapper Grouper Committee; Dolphin Wahoo Committee; Southeast Data, Assessment and Review (SEDAR) Committee (partially Closed Session); and Executive Committee. The meeting week will also include a formal public comment session and a meeting of the Full Council. Due to public health concerns associated with COVID-19 and current travel restrictions the meeting will be held via webinar.
The Council meeting will be held from 12:30 p.m. on Monday, March 1, 2021 until 12 p.m. on Friday, March 5, 2021.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8440 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
Meeting information, including agendas, overviews, and briefing book materials will be posted on the Council's website at:
The items of discussion in the individual meeting agendas are as follows:
The Council will receive an update on the Acceptable Biological Catch (ABC) Control Rule Amendment and review an Exempted Fishing Permit (EFP) request and provide recommendations. The Council will also receive a presentation on the Regional Electronic Technologies Plan: 2020-2024 from NOAA Fisheries and receive a presentation on the Kitty Hawk Offshore Wind Project.
The Committee will receive a report from the Law Enforcement Advisory Panel (AP), review the structure of the Law Enforcement AP, and provide recommendations.
The Committee will review Amendment 10 to the Coral Fishery Management Plan (FMP) addressing modifications to area closures for the deepwater shrimp fishery and is scheduled to approve for public hearings. The Committee will also receive updates on the Fishery Ecosystem Plan (FEP) II Roadmap and the Habitat and Ecosystem Blueprint, and approve agenda items for the next meeting of the Habitat Protection and Ecosystem-Based Management AP.
The Committee will review the Coastal Migratory Pelagic (CMP) Framework Amendment 10 addressing management measures for Atlantic king mackerel and receive an update on CMP Amendment 32 addressing management
The Committee will receive a fishery overview and presentation on the recent stock assessment for snowy grouper, review Amendment 48 to the Snapper Grouper FMP addressing Wreckfish ITQ Modernization, and review public scoping comments and analyses for Amendment 50 to the Snapper Grouper FMP pertaining to measures to end overfishing and revise the rebuilding plan for red porgy. The Committee will review Amendment 49 to the Snapper Grouper FMP addressing catch levels and management measures for greater amberjack and is scheduled to approve the amendment for scoping.
The Committee will also receive updates on regional research projects on greater amberjack and red snapper, an update from NOAA Fisheries on red snapper recreational landings and status of the 2021 red snapper season, and approve agenda items for the next meeting of the Snapper Grouper AP.
The Committee will review public hearing comments as well as actions and alternatives for Amendment 10 to the Dolphin Wahoo FMP with actions addressing revisions to recreational data and catch level recommendations, modifications to recreational accountability measures, measures to allow properly permitted commercial vessels with trap, pot or buoy gear on board to possess commercial quantities of dolphin and wahoo, remove the Operator Card requirement, reduce the recreational vessel limit for dolphin, reduce the recreational bag limit and establish a recreational vessel limit for wahoo, and allow filleting of dolphin at sea on board charter or headboat vessels in waters north of the Virginia/North Carolina border. The Committee will also review the updated goals and objectives of the Dolphin Wahoo FMP and provide recommendations for timing of the next Dolphin Wahoo AP meeting.
The Committee will make appointments for the SEDAR 79 stock assessment for mutton snapper during Closed Session. In Open Session, the Committee will receive an update on the SEDAR 76 stock assessment for South Atlantic black sea bass.
The Committee will review updates to the Council's Advisory Panel Policy, a proposed Council Symposium Series addressing various topics, updates to the Council's Handbook and the Council's 2021 Workplan.
The Council will receive a report from the Executive Director, staff updates on development of the Council's Allocation Tool to determine sector allocations, Climate Change Scenario Planning and the Council's Citizen Science Program. A demonstration of the new Fish Rules mobile app for commercial regulations will be provided.
The Council will receive a report from the Council's Recreational Reporting Working Group.
NOAA Fisheries Southeast Fisheries Science Center staff will provide an update on the pandemic's impacts on sampling and monitoring and a report on the status of commercial electronic logbooks. NOAA Fisheries Southeast Regional Office staff will provide an update on the status of For-Hire Electronic Reporting and the status of their evaluation of bycatch reporting efforts in the South Atlantic. The Council will also receive a Protected Resources report.
The Council will receive reports from the following committees: Law Enforcement; Habitat Protection and Ecosystem-Based Management; Snapper Grouper; Dolphin Wahoo; Mackerel Cobia; SEDAR; and Executive.
The Council will receive agency and liaison reports, discuss other business and upcoming meetings, and take action as necessary.
Documents regarding these issues are available from the Council office (see
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Navy (Navy) to incidentally harass, by Level B harassment only, marine mammals during activities associated with the Naval Base San Diego Pier 6 Replacement Project in San Diego, California.
This Authorization is effective from October 1, 2021 through September 30, 2022.
Dwayne Meadows, Ph.D., Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
On July 14, 2020, NMFS received an application from the Navy requesting an IHA to take small numbers of California sea lions incidental to pile driving and removal associated with the Naval Base San Diego Pier 6 Replacement Project. The application was deemed adequate and complete on November 25, 2020. The Navy's request is for take of a small number of California sea lions by Level B harassment. Neither the Navy nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
The purpose of the project is to remove and replace a decaying and inadequate pier for Navy ships. Specifically, in-water construction work includes removing the existing pier (by vibratory pile extraction, water jetting, hydraulic underwater chainsaw, direct pulling, and/or pile clippers) consisting of a total of 1,998 12 to 24-inch piles, after removing above water structures and utilities. Once demolition has opened up space, construction will begin in the same location on a new pier measuring 37 meters (m) (120 feet (ft)) wide by 457 m (1,500 ft) long. New construction work involves impact driving of 966 piles. This includes 528 24-inch structural concrete piles, 208 24-inch concrete fender piles, 4 20-inch piles for a load-out ramp, and 226 16-inch fiberglass secondary and corner fender piles. Pile driving/removal is expected to take no more than 250 days. Pile driving would be by vibratory pile driving until resistance is too great and driving would switch to an impact hammer.
A detailed description of the planned project is provided in the
A notice of NMFS's proposal to issue an IHA to the Navy was published in the
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 1 lists all species with expected potential for occurrence in the project area in San Diego Bay and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Pacific SARs (
California sea lions (
A detailed description of the of the species likely to be affected by the Navy's project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
The effects of underwater noise from the Navy's construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the survey area. The notice of proposed IHA (85 FR 80027; December 11, 2020) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from the Navy's construction activities on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of proposed IHA (85 FR 80027; December 11, 2020).
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment, as use of the acoustic source (
As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur Permanent Threshold Shift (PTS) of some degree (equated to Level A harassment).
The Navy's proposed activity includes the use of continuous (vibratory pile-driving, water jetting, chainsaw and pile clippers) and impulsive (impact pile-driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds are applicable. However, as discussed above, the Navy has established that the ambient noise in the project area is 126 dB re 1 μPa (rms). Since this is louder than the 120 dB threshold for continuous sources, 126 dB becomes the effective threshold for Level B harassment for continuous sources.
These thresholds are provided in Table 2. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project (
Vibratory hammers produce constant sound when operating, and produce vibrations that liquefy the sediment surrounding the pile, allowing it to penetrate to the required seating depth or be withdrawn more easily. An impact hammer is a steel device that works like a piston, producing a series of independent strikes to drive the pile. Impact hammering typically generates the loudest noise associated with pile installation. The actual durations of each installation method vary depending on the type and size of the pile.
In order to calculate distances to the Level A harassment and Level B harassment sound thresholds for piles of various sizes being used in this project, NMFS used acoustic monitoring data from other locations to develop source levels for the various pile types, sizes and methods (see Table 3). Data for the removal methods including water jetting, pile clippers and underwater chainsaws come from data gathered at other nearby Navy projects in San Diego Bay (NAVFAC SW, 2020), the source levels used are from the averages of the maximum source levels measured, a somewhat more conservative measure than the median sound levels we typically use.
During pile driving installation activities, there may be times when two pile extraction methods (pile clippers, water jetting, underwater chainsaws or vibratory pile removal) are used simultaneously. The likelihood of such an occurrence is anticipated to be infrequent, will depend on the specific methods chosen by the contractor, and would be for short durations on that day. In-water pile removal occurs intermittently, and it is common for removal to start and stop multiple times as each pile is adjusted and its progress is measured. Moreover, the Navy has multiple options for pile removal depending on the pile type and condition, sediment, and how stuck the pile is, etc. When two continuous noise sources, such as pile clippers, have overlapping sound fields, there is potential for higher sound levels than for non-overlapping sources. When two or more pile removal methods (pile clippers, water jetting, underwater chainsaws or vibratory pile removal) are used simultaneously, and the sound field of one source encompasses the sound field of another source, the sources are considered additive and combined using the following rules (see Table 4): For addition of two simultaneous methods, the difference between the two sound source levels (SSLs) is calculated, and if that difference is between 0 and 1 dB, 3 dB are added to the higher SSL; if difference is between 2 or 3 dB, 2 dB are added to the highest SSL; if the difference is between 4 to 9 dB, 1 dB is added to the highest SSL; and with differences of 10 or more dB, there is no addition (NMFS 2018b; WSDOT 2018).
There is also the possibility that impact installation of piles could happen simultaneously with any of the non-impulsive removal methods over large portions of the project as described above. On days when this occurs the Level A harassment zones would be based on the zones calculated for impact pile driving while the Level B harassment zone would be the largest of the zones for whatever construction methods are being used that day.
Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:
The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for the Navy's proposed activity in the absence of specific modelling. For this project however, the Navy did model sound propagation for the impact and vibratory hammering methods (Dall'Osto and Dahl 2019). For all other pile removal methods we used the practical spreading value.
The Navy determined underwater noise would fall below the behavioral effects threshold of 126 dB rms for marine mammals at distances of less than 10 to 7,140 m depending on the pile type(s) and methods (Table 5). It should be noted that based on the bathymetry and geography of San Diego Bay, sound will not reach the full distance of the Level B harassment isopleths in all directions. Because the Navy's as yet unhired contractor has not
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of take by Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as impact/vibratory pile driving or removal using any of the methods discussed above, NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS.
As discussed above, the Navy modelled sound propagation for impact and vibratory hammering of piles (Dall'Osto and Dahl 2019) and used those models to calculate Level A harassment isopleths. For all other pile removal methods we used the User Spreadsheet to determine the Level A harassment isopleths. Inputs used in the User Spreadsheet or models are reported in Table 6 and the resulting isopleths are reported in Table 6 for each of construction methods.
The above input scenarios lead to PTS isopleth distances (Level A thresholds) of less than 10 m for all methods and piles (Table 5).
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Here we describe how the information provided above is brought together to produce a quantitative take estimate.
No California sea lion density information is available for south San Diego Bay. Potential exposures to impact and vibratory pile driving noise for each threshold for California sea lions were estimated using data collected during a 2010 survey as reported in Sorensen and Swope (2010). During this survey two separate sea lions were observed in the project area.
The available survey data from Sorenson and Swope (2010) and other unpublished monitoring data from recent nearby projects on Naval Base San Diego suggests two California sea lions could be present each day in the project area. However given the limited data available and the more northerly location of this project relative to the
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The following mitigation measures are in the IHA:
• For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location; or (2) positioning of the pile on the substrate via a crane (
• Conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;
• For those marine mammals for which Level B harassment take has not been requested, in-water pile installation/removal will shut down immediately if such species are observed within or entering the Level B harassment zone; and
• If take reaches the authorized limit for an authorized species, pile installation will be stopped as these species approach the Level B harassment zone to avoid additional take.
The following mitigation measures would apply to the Navy's in-water construction activities.
•
• The placement of Protected Species Observers (PSOs) during all pile driving and removal activities (described in detail in the Monitoring and Reporting section) will ensure that the entire shutdown zone is visible during pile installation. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (
•
•
•
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Marine mammal monitoring must be conducted in accordance with the Monitoring Plan and section 5 of the IHA. Marine mammal monitoring during pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the following:
• Independent PSOs (
• At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
• Other PSOs may substitute education (degree in biological science or related field) or training for experience;
• Where a team of three or more PSOs are required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
• The Navy must submit PSO Curriculum Vitae for approval by NMFS prior to the onset of pile driving.
PSOs must have the following additional qualifications:
• Ability to conduct field observations and collect data according to assigned protocols;
• Experience or training in the field identification of marine mammals, including the identification of behaviors;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
Up to four PSOs will be employed. PSO locations will provide an unobstructed view of all water within the shutdown zone, and as much of the Level A and Level B harassment zones as possible. PSO locations are as follows:
(1) At the pile driving/removal site or best vantage point practicable to monitor the shutdown zones;
(2) For activities with Level B harassment zones larger than 400 m two additional PSO locations will be used. One will be across from the project location along Inchon Road at Naval Amphibious Base Coronado; and
(3) Two additional PSOs will be located in a small boat. The boat will conduct a pre-activity survey of the entire monitoring area prior to in-water construction. The boat will start from south of the project area (where potential marine mammal occurrence is lowest) and proceed to the north. When the boat arrives near the northern boundary of the Level B harassment zone (
Monitoring will be conducted 30 minutes before, during, and 30 minutes after pile driving/removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving or drilling equipment is no more than 30 minutes.
The Navy has volunteered to conduct hydroacoustic monitoring of all pile driving and removal methods. Data will be collected for a representative number of piles (three to five) for each installation or removal method. As part of the below-mentioned report, or in a separate report with the same timelines as above, the Navy will provide an acoustic monitoring report for this work. Hydroacoustic monitoring results can be used to adjust the size of the Level B harassment and monitoring zones after a request is made and approved by NMFS. The acoustic monitoring report must, at minimum, include the following:
• Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of recording device(s);
• Type of pile being driven or removed, substrate type, method of driving or removal during recordings;
• For impact pile driving: Pulse duration and mean, median, and maximum sound levels (dB re: 1µPa): SELcum, peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELs-s);
• For vibratory removal and other non-impulsive sources: Mean, median, and maximum sound levels (dB re: 1µPa): Root mean square sound pressure level (SPLrms), SELcum; and
• Number of strikes (impact) or duration (vibratory or other non-impulsive sources) per pile measured, one-third octave band spectrum and power spectral density plot.
A draft marine mammal monitoring report will be submitted to NMFS within 90 days after the completion of pile driving and removal activities, or 60 days prior to a requested date of issuance of any future IHAs for projects at the same location, whichever comes first. The report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:
• Dates and times (begin and end) of all marine mammal monitoring;
• Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (
• Weather parameters and water conditions during each monitoring period (
• The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting;
• Age and sex class, if possible, of all marine mammals observed;
• PSO locations during marine mammal monitoring;
• Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting);
• Description of any marine mammal behavior patterns during observation, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active;
• Number of individuals of each species (differentiated by month as appropriate) detected within the monitoring zone;
• Detailed information about any implementation of any mitigation triggered (
• Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals.
If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources (OPR), NMFS and to the regional stranding coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the IHA. The IHA-holder must not resume their activities until notified by NMFS. The report must include the following information:
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving activities have the potential to disturb or displace marine mammals. Specifically, the project activities may result in take, in the form of Level B harassment from underwater sounds generated from pile driving and removal. Potential takes could occur if individuals are present in the ensonified zone when these activities are underway.
The takes from Level B harassment would be due to potential behavioral disturbance, TTS, and PTS. No mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for harassment is minimized through the construction method and the implementation of the planned mitigation measures (see Mitigation section).
The nature of the pile driving project precludes the likelihood of serious injury or mortality. Take would occur within a limited, confined area (south-central San Diego Bay) of the stock's range. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. Further the amount of take authorized is extremely small when compared to stock abundance.
Behavioral responses of marine mammals to pile driving at the project site, if any, are expected to be mild and temporary. Marine mammals within the Level B harassment zone may not show any visual cues they are disturbed by activities (as noted during modification to the Kodiak Ferry Dock (see 80 FR 60636, October 7, 2015) or could become alert, avoid the area, leave the area, or display other mild responses that are not observable such as changes in vocalization patterns. Given the short duration of noise-generating activities per day and that pile driving and removal would occur across six months, any harassment would be temporary. There are no other areas or times of known biological importance for any of the affected species.
In addition, it is unlikely that minor noise effects in a small, localized area of habitat would have any effect on the stocks' ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or Level A harassment is anticipated or authorized;
• No important habitat areas have been identified within the project area;
• For all species, San Diego Bay is a very small and peripheral part of their range;
• The Navy would implement mitigation measures such as vibratory driving piles to the maximum extent practicable, soft-starts, and shut downs; and
• Monitoring reports from similar work in San Diego Bay have documented little to no effect on individuals of the same species impacted by the specified activities.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The amount of take NMFS authorizes is below one third of the estimated stock abundance of California sea lions (in fact, take of individuals is less than 1% of the abundance of the affected stock). This is likely a conservative estimate because they assume all takes are of different individual animals which is likely not the case. Some individuals may return multiple times in a day, but PSOs would count them as separate takes if they cannot be individually identified.
Based on the analysis contained herein of the proposed activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Section 7(a)(2) of the ESA (16 U.S.C. 1531
No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
NMFS has issued an IHA to the Navy for the potential harassment of small numbers of one marine mammal species incidental to the Naval Base San Diego Pier 6 Replacement project in San Diego, CA, provided the previously mentioned mitigation, monitoring and reporting requirements are followed.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will hold a public webinar meeting, jointly with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisory Panel.
The meeting will be held on Tuesday, March 23, 2021, from 10 a.m. until 12 p.m.
The meeting will be held via webinar, which can be accessed at:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will meet via webinar jointly with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisory Panel. The purpose of this meeting is for the Advisory Panels to review public comments received on the Summer Flounder, Scup, Black Sea Bass Commercial/Recreational Allocation Amendment and to provide recommendations on the Council and Commission's selection of preferred alternatives for final action. More information on the amendment is available at:
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Kathy Collins, (302) 526-5253, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 80 Life History Topical Working Group Webinar I for U.S. Caribbean Queen Triggerfish.
The SEDAR 80 stock assessment of U.S. Caribbean queen triggerfish will consist of a series of data webinars. See
The SEDAR 80 Life History Topical Working Group Webinar I will be held from 9 a.m. to 11 a.m. Eastern, March 10, 2021.
Julie A. Neer, SEDAR Coordinator; (843) 571-4366; Email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the webinar are as follows:
• Participants will discuss and make recommendations regarding what life history data may be included in the assessment of U.S. Caribbean queen triggerfish.
Although non-emergency issues not contained in this agenda may come
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 71 South Atlantic Gag Grouper Assessment Webinar V.
The SEDAR 71 assessment of the South Atlantic stock of gag grouper will consist of a data webinar and a series assessment webinars.
The SEDAR 71 Gag Grouper Assessment Webinar V has been scheduled for Wednesday March 10, 2021, from 9 a.m. to 1 p.m., EDT.
Kathleen Howington, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4371; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion at the SEDAR 71 Gag Grouper Assessment Webinar V are as follows:
• Finalize modeling and data discussions
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the South Atlantic Fishery Management Council office (see
The times and sequence specified in this agenda are subject to change.
Office of Fossil Energy, Department of Energy.
Notice of change in control.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of a Statement of Change in Control (Statement) filed by ECA Liquefaction, S. de R.L. de C.V. (ECA Liquefaction) in the above-referenced docket on January 7, 2021. The Statement describes a change in upstream ownership of ECA Liquefaction. The Statement was filed under the Natural Gas Act (NGA).
Protests, motions to intervene, or notices of intervention, as applicable, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, February 18, 2021.
ECA Liquefaction states that it is a variable-capital, limited liability company organized under the laws of Mexico. ECA Liquefaction is owned approximately 99.99% by ECA LNG Holdings B.V. (ECA LNG Holdings), with the remainder owned by ECA Minority, S. de R.L. de C.V. ECA Liquefaction states that, prior to December 9, 2020, two companies—Sempra LNG ECA Liquefaction, LLC (Sempra LNG) and Infraestructura Energética Nova, S.A.B. de C.V. (IEnova)—each held a direct 50% ownership interest in ECA LNG Holdings.
On December 9, 2020, Sempra LNG, IEnova, and Total Gaz Electricité Holdings France S.A.S. (Total) entered into an equity issuance and subscription agreement whereby Total acquired a 16.6% equity interested in ECA LNG Holdings (Transaction). ECA Liquefaction states that Total is owned 100% by Total Holdings, S.A.S., which in turn is wholly owned by Total SE, a French energy company. ECA Liquefaction further states that an affiliate of Total, Total Gas & Power Asia Private Limited, is an existing customer of ECA Liquefaction. Following the Transaction, Sempra LNG and IEnova each retain a 41.7% ownership interest in ECA LNG Holdings.
Additional details can be found in ECA Liquefaction's Statement, posted on the DOE/FE website at:
DOE/FE will review ECA Liquefaction's Statement in accordance with its Procedures for Changes in Control Affecting Applications and Authorizations to Import or Export Natural Gas (CIC Procedures).
Interested persons will be provided 15 days from the date of publication of this notice in the
Filings may be submitted using one of the following methods: (1) Preferred method: Emailing the filing to
ECA Liquefaction's Statement, and any filed protests, motions to intervene, notices of intervention, and comments, are available for inspection and copying in the Office of Regulation, Analysis, and Engagement docket room, Room 3E-042, 1000 Independence Avenue SW, Washington, DC, 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
ECA Liquefaction's Statement, and any filed protests, motions to intervene, notices of intervention, and comments, will also be available electronically by going to the following DOE/FE Web address:
Office of Fossil Energy, Department of Energy.
Notice of application.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice (Notice) of receipt of an application (Application), filed on August 18, 2020, by Southern LNG Company, L.L.C. (Southern LNG). Southern LNG requests blanket authorization to export liquefied natural gas (LNG) previously imported into the United States by vessel from foreign sources in a volume equivalent to 182.5 billion cubic feet per year (Bcf/yr) of
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, March 5, 2021.
Southern LNG requests a short-term blanket authorization to export LNG from the Elba Island Terminal located on Elba Island, Chatham County, Georgia, to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law or policy. This includes both countries with which the United States has entered into a free trade agreement (FTA) requiring national treatment for trade in natural gas (FTA countries) and all other countries (non-FTA countries). This Notice applies only to the portion of the Application requesting authority to export LNG to non-FTA countries pursuant to section 3(a) of the NGA, 15 U.S.C. 717b(a). Southern LNG states that its existing blanket export authorization, set forth in DOE/FE Order No. 4206, is scheduled to expire on March 31, 2021. Southern LNG requests that the authorization commence on the earlier of either the date when all Movable Modular Liquefaction System units associated with the Elba Liquefaction Project have been placed in service or April 1, 2021. Southern LNG is not seeking authorization to export any domestically produced natural gas or LNG.
Southern LNG requests this authorization on its own behalf and as agent for other parties who hold title to the LNG at the time of export. Additional details can be found in Southern LNG's Application, posted on the DOE/FE website at:
In reviewing Southern LNG's Application, DOE will consider any issues required by law or policy. DOE will consider domestic need for the gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. Parties that may oppose this application should comment in their responses on these issues.
The National Environmental Policy Act (NEPA), 42 U.S.C. 4321
In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Interested parties will be provided 30 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention.
Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) Emailing the filing to
A decisional record on the Application will be developed through responses to this Notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this Notice, in accordance with 10 CFR 590.316.
The Application is available for inspection and copying in the Office of Regulation, Analysis, and Engagement docket room, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene, notices of interventions, and comments will also be available electronically by going to the following DOE/FE Web address:
Take notice that the Commission received the following electric rate 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 following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene and protests, comments, recommendations, preliminary terms and conditions, and preliminary prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis.
The Council on Environmental Quality (CEQ) issued a final rule on July 15, 2020, revising the regulations under 40 CFR parts 1500—1518 that federal agencies use to implement NEPA (see Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 FR 43,304). The Final Rule became effective on and applies to any NEPA process begun after September 14, 2020. An agency may also apply the regulations to ongoing activities and environmental documents begun before September 14, 2020, which includes the proposed North Branch No. 3 Project relicensing. Commission staff intends to conduct its NEPA review in accordance with CEQ's new regulations.
l. The existing North Branch 3 Project is located at the 115-foot-high, 1,525-foot-long Wrightsville Dam and consists of the following constructed facilities: A 445-foot-long, 5-foot-diameter steel aboveground penstock emerging from the base of the dam that conveys water to a 1,320-square-foot partially-buried project powerhouse containing three fixed blade turbines with rated capacities of 96, 259, and 578-kilowatts (kW) for a total installed capacity of 933 kW; a 750 square-foot substation located adjacent to the powerhouse that steps up the voltage from 4.16 kilovolts (kV) to 12.5 kV; a 450-foot-long, 12.5-kV transmission line; and appurtenant facilities.
WEC proposes to continue to operate its three turbine units to replicate near run-of-river operations and continue to maintain its existing minimum flows both within the bypassed reach (
WEC also proposes to bring the following existing facilities into the project boundary as project structures: The trash racks with one-inch spacing and the 9.5-foot by 6.5-foot headgate located within the non-project hydropower bay at the intake; the 1.3-foot by 1.5-foot automated minimum flow gate located at the base of the wall separating the two intake chambers used to pass minimum flows to the bypassed reach; the 100 square-foot hydraulic house located within the dam housing a hydraulic pump and controls used to operate the project headgate and minimum flow gate; and the 550-foot-long dirt road used to access the intake structure.
m. A copy of the application can viewed on the Commission's website at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
o. Procedural schedule:
The application will be processed according to the following preliminary Hydro Licensing Schedule. Revisions to the schedule will be made as appropriate.
p. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
q. A license applicant must file no later than 60 days following the date of issuance of the notice of acceptance and ready for environmental analysis provided for in § 5.22: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification. Please note that the certification request must be sent to the certifying authority and to the Commission concurrently.
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 date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; extension of comment period.
The Environmental Protection Agency (EPA) is extending the comment period for 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). Notice of the proposed Settlement Agreement was published in the
The comment period for the proposed Settlement Agreement published January 4, 2021 (86 FR 87) is extended. Written comments must be received on or before March 5, 2021.
Follow the detailed instructions provided under
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:
This document extends the public comment period established in the
Farm Credit Administration Board, Farm Credit Administration.
Notice, regular meeting.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. Sec. 552b(e) (1)), of the forthcoming regular meeting of the Farm Credit Administration Board.
The regular meeting of the Board will be held February 11, 2021, from 9:00 a.m. until such time as the Board may conclude its business.
To observe the open portion of the virtual meeting, go to
Dale Aultman, Secretary to the Farm Credit Administration Board (703) 883-4009. TTY is (703) 883-4056.
Parts of this meeting of the Board will be open to the public, and parts will be closed. If you wish to observe the open portion, follow the instructions above in the “Attendance” section at least 24 hours before the meeting. If you need assistance for accessibility reasons or if you have any questions, contact Dale Aultman, Secretary to the Farm Credit Administration Board, at (703) 883-4009. The matters to be considered at the meeting are as follows:
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Recordkeeping Requirements Associated with Limitations on Interbank Liabilities (FR F; OMB No. 7100-0331).
Comments must be submitted on or before April 5, 2021.
You may submit comments, identified by FR F, by any of the following methods:
•
•
•
•
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—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.
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.
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. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
A copy of the Paperwork Reduction Act (PRA) OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be available at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
The Board does not collect any information under Regulation F, so no issue of confidentially normally arises. However, in the event the records are obtained by the Board as part of an examination or supervision of a financial institution, this information may be considered confidential pursuant to exemption 8 of the Freedom of Information Act (FOIA), which protects information contained in “examination, operating, or condition reports” obtained in the bank supervisory process.
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, without revision, the Disclosure Requirements Associated with CFPB's Regulation DD (FR DD; OMB No. 7100-0271).
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—Shagufta Ahmed—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
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, without revision, the Senior Loan Officer Opinion Survey on Bank Lending Practices (FR 2018; OMB No. 7100-0058).
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—Shagufta Ahmed—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
Although the specific questions to be asked on each survey have not yet been formulated, the questions are designed to obtain information that is customarily and actually treated as private by the institution. Thus, the individual survey responses from each respondent may be held confidential under exemption (4) of the Freedom of Information Act.
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 18, 2021.
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Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Quarterly Report of Assets and Liabilities of Large Foreign Offices of U.S. Banks (FR 2502q; OMB No. 7100-0079).
Comments must be submitted on or before April 5, 2021.
You may submit comments, identified by
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Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—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.
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.
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. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
A copy of the Paperwork Reduction Act (PRA) OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be available at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
The FR 2502q report is mandatory. To the extent that the information from this
Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Senior Financial Officer Surveys (FR 2023; OMB No. 7100-0223).
Comments must be submitted on or before April 5, 2021.
You may submit comments, identified by FR 2023, by any of the following methods:
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Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—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.
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.
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. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
A copy of the Paperwork Reduction Act (PRA) OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be available at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
Survey submissions under the FR 2023 are voluntary.
The questions asked on each survey will vary. The Board's ability to keep confidential responses to the FR 2023 must therefore be determined on a case-by-case basis. Much of the information collected is likely to constitute nonpublic commercial or financial information, which is both customarily and actually treated as private by the respondent, so may be kept confidential by the Board pursuant to exemption 4 of the Freedom of Information Act (“FOIA”).
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 February 18, 2021.
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Board of Governors of the Federal Reserve System.
Notice, request for comment.
The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Survey of Consumer Finances (FR 3059; OMB 7100-0287).
Comments must be submitted on or before April 5, 2021.
You may submit comments, identified by FR 3059, by any of the following methods:
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All public comments are available from the Board's website at
Additionally, commenters may send a copy of their comments to the Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—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.
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.
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. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.
A copy of the Paperwork Reduction Act (PRA) OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be available at
The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Board's functions, including whether the information has practical utility;
b. The accuracy of the Board's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Board should modify the proposal.
It is expected that the data collected would be published in summary form in the
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on
DoD, GSA, and NASA will consider all comments received by April 5, 2021.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Jennifer Hawes, Procurement Analyst, at telephone 202-969-7386, or
9000-0076, Novation and Change-of-Name Agreements.
This clearance covers the information that contractors must submit to comply with the following requirements in Federal Acquisition Regulation subpart 42.12:
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Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division has submitted to the Office of Management and Budget (OMB) a request to review and approve a revision and renewal of a previously approved information collection requirement regarding organization and direction of the work.
Submit comments on or before March 5, 2021.
Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to
Additionally, submit a copy to GSA through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
9000-0064, Organization and Direction of the Work.
This clearance covers the information that contractors must submit to comply with the following Federal Acquisition Regulation (FAR) requirement:
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The contracting officer uses the information to ensure the work is performed by qualified personnel at a reasonable cost to the Government.
A 60-day notice was published in the
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on a revision and renewal concerning small business size rerepresentation. DoD, GSA, and NASA invite comments on: Whether the proposed collection of information is necessary for the proper performance of the functions of Federal Government acquisitions, including whether the information will have practical utility; the accuracy of the estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. OMB has approved this information collection for use through September 30, 2021. DoD, GSA, and NASA propose that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD, GSA, and NASA will consider all comments received by April 5, 2021.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
9000-0163, Small Business Size Rerepresentation.
This clearance covers the information that contractors must submit to comply with the following Federal Acquisition Regulation (FAR) requirements:
Small business contractors are required to rerepresent their size and socioeconomic status upon occurrence of any of the following:
• Within 30 days after execution of a novation agreement or within 30 days after modification of the contract to include FAR clause 52.219-28, if the novation agreement was executed prior to inclusion of this clause in the contract.
• Within 30 days after a merger or acquisition that does not require a novation or within 30 days after modification of the contract to include FAR clause 52.219-28, if the merger or acquisition occurred prior to inclusion of this clause in the contract.
• For long-term contracts—
Within 60 to 120 days prior to the end of the fifth year of the contract; and
Within 60 to 120 days prior to the date specified in the contract for exercising any option thereafter.
• When contracting officers explicitly require it for an order issued under a multiple-award contract.
The collected information is used by the Small Business Administration, Congress, Federal agencies and the general public for various reasons such as determining if agencies are meeting statutory goals, set-aside determinations, and market research.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Agency Order.
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS) announces the extension of an Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions to prevent the further spread of COVID-19.
This Order is effective January 31, 2021 through March 31, 2021.
Tiffany Brown, Acting Deputy Chief of Staff, Centers for Disease Control and Prevention, 1600 Clifton Road, NE, MS H21-10, Atlanta, GA 30329. Phone: 404-639-7000. Email:
This Order extends the original temporary eviction moratorium Order published on September 4, 2020 and extended by the Consolidated Appropriations Act, 2021 and further extends the Order with modifications through March 31, 2021. The conditions that originally necessitated the original Order continue to exist and, in many jurisdictions, have significantly worsened. With the convergence of COVID-19, seasonal influenza, household crowding and transmission, and the increased risk of individuals sheltering in close quarters in congregate settings such as homeless shelters, which may be unable to provide adequate social distancing as populations increase, extending the temporary halt on evictions, subject to further extension, modification, or rescission, is appropriate. Additionally, the Order now applies to American Samoa. At the time of publication of the September 4, 2020 Order, no cases had been reported in American Samoa. Cases have now been reported there.
A copy of the Order is provided below. A copy of the signed Order and the Declaration can be found at:
Subject to the limitations under “Applicability,” a landlord, owner of a residential property, or other person
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(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2021 (or no more than $198,000 if filing a joint tax return),
(3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary
(4) the individual is using best efforts to make timely partial payments that are
(5) eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
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This Order shall be interpreted and implemented in a manner as to achieve the following objectives:
• Mitigating the spread of COVID-19 within congregate or shared living settings, or through unsheltered homelessness;
• Mitigating the further spread of COVID-19 from one state or territory into any other state or territory; and
• Supporting response efforts to COVID-19 at the Federal, state, local, territorial, and tribal levels.
There is currently a pandemic of a respiratory disease (“COVID-19”) caused by a novel coronavirus (SARS-COV-2) that has now spread globally, including cases reported in all fifty states within the United States plus the District of Columbia and U.S. territories. As of January 21, 2021, there have been over 96 million cases of COVID-19 globally, resulting in over 2,000,000 deaths. Over 24,400,000 cases have been identified in the United States, with new cases reported daily, and over 400,000 deaths due to the disease. On January 8, 2021, over 300,000 COVID-19 cases in the U.S. were reported to CDC, representing a peak approximately 7 times the highest daily cases in April, 2020 and approximately 4 times the highest daily cases in July, 2020.
The virus that causes COVID-19 spreads very easily and sustainably between people who are in close contact with one another (within about 6 feet), mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks. Some people without symptoms may be able to spread the virus. Among adults, the risk for severe illness from COVID-19 increases with age, with older adults at highest risk. Severe illness means that persons with COVID-19 may require hospitalization, intensive care, or a ventilator to help them breathe, and may be fatal. People of any age with certain underlying medical conditions, such as cancer, an immunocompromised state, obesity, serious heart conditions, and diabetes, are at increased risk for severe illness from COVID-19.
COVID-19 presents a historic threat to public health, and COVID-19 cases have been detected in every county in the continental United States.
In the context of a pandemic, eviction moratoria—like quarantine, isolation, and social distancing—can be an effective public health measure utilized to prevent the spread of communicable disease. Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition. They also allow state and local authorities to more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19. Furthermore, housing stability helps protect public health because homelessness increases the likelihood of individuals moving into close quarters in congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19.
On September 4, 2020, the CDC Director issued an Order temporarily halting evictions in the United States for the reasons described therein. That Order was set to expire on December 31, 2020, subject to further extension, modification, or rescission. Section 502 of Title V, Division N of the Consolidated Appropriations Act, 2021 extended the Order until January 31, 2021. This Order further extends and modifies the prior Orders until March 31, 2021 for the reasons described herein. Much of the content of the September 4, 2020 Order has been incorporated into this Order. To the extent any provision of this Order conflicts with prior Orders, this Order is controlling.
In addition to extending the effective period of the September 4, 2020 Order, as further extended by the Consolidated Appropriations Act, 2021, this Order includes newly available modeling projections and observational data from COVID-19 incidence comparisons across states that have implemented and lifted eviction moratoria, which clearly demonstrate the need for this Order. The Order now also applies to American Samoa because cases of COVID-19 have now been reported there.
This Order does not apply in any state, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order. In accordance with 42 U.S.C. 264(e), this Order does not preclude state, local, territorial, and tribal authorities from imposing additional requirements that provide greater public-health protection and are more restrictive than the requirements in this Order.
This Order is a temporary eviction moratorium to prevent the further spread of COVID-19. This Order does not relieve any individual of any obligation to pay rent, make a housing
This Order now applies to American Samoa. At the time of publication of the September 4, 2020 Order, no cases had been reported in American Samoa. Cases have now been reported there.
Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread. Specifically, many evicted renters move into close quarters in shared housing or other congregate settings. According to the Census Bureau American Housing Survey, 32% of renters reported that they would move in with friends or family members upon eviction, which would introduce new household members and potentially increase household crowding.
Preliminary modeling projections and observational data from COVID-19 incidence comparisons across states that implemented and lifted eviction moratoria indicate that evictions substantially contribute to COVID-19 transmission. In mathematical models where eviction led exclusively to sharing housing with friends or family, lifting eviction moratoria led to a 40% increased risk of contracting COVID-19 among people who were evicted and those with whom they shared housing after eviction (pre-peer review).
Shared housing is not limited to friends and family. It includes a broad range of settings, including transitional housing, and domestic violence and abuse shelters. Special considerations exist for such housing because of the challenges of maintaining social distance. Residents often gather closely or use shared equipment, such as kitchen appliances, laundry facilities, stairwells, and elevators. Residents may have unique needs, such as disabilities, cognitive decline, or no access to technology, and thus may find it more difficult to take actions to protect themselves from COVID-19. CDC recommends that shelters provide new residents with a clean mask, keep them isolated from others, screen for symptoms at entry, or arrange for medical evaluations as needed depending on symptoms.
Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. 116-136) to aid individuals and businesses adversely affected by COVID-19. Section 4024 of the CARES Act provided a 120-day moratorium on eviction filings as well as other protections for tenants in certain rental properties with Federal assistance or federally related financing. These protections helped alleviate the public health consequences of tenant displacement during the COVID-19 pandemic. The CARES Act eviction moratorium expired on July 24, 2020.
Researchers estimated that this temporary Federal moratorium provided relief to a material portion of the nation's roughly 43 million renters.
The CARES Act moratorium, however, did not reach all renters. Neither does the more recently enacted Emergency Rental Assistance Program under the Consolidated Appropriations Act, 2021, as administered by the Department of Treasury.
The statistics on interstate moves show that mass evictions would likely increase the interstate spread of COVID-19. Over 35 million Americans, representing approximately 10% of the U.S. population, move each year.
Evicted individuals without access to housing or assistance options may also contribute to the homeless population, including older adults or those with underlying medical conditions, who are more at risk for severe illness from COVID-19 than the general population.
People experiencing homelessness are a high-risk population. It may be more difficult for these persons to consistently access the necessary resources in order to adhere to public health recommendations to prevent COVID-19. For instance, it may not be possible to avoid certain congregate settings such as homeless shelters, or easily access facilities to engage in handwashing with soap and water.
Extensive outbreaks of COVID-19 have been identified in homeless shelters.
CDC guidance recommends increasing physical distance between beds in homeless shelters.
In the context of the current pandemic, large increases in evictions resulting in homelessness could have at least two potential negative consequences. One is if homeless shelters increase occupancy in ways that increase the exposure risk to COVID-19. The other is if homeless shelters continue to limit new admissions, leading to increases in unsheltered homelessness. Neither consequence is in the interest of the public health.
Recently published data suggest that those experiencing unsheltered homelessness may have a lower risk of contracting COVID-19 compared to those staying in shelters.
Additionally, research suggests that the population of persons who would be evicted and become homeless would include many who are predisposed to developing severe disease from COVID-19. Five studies have shown an association between eviction and hypertension, which has been associated with more severe outcomes from COVID-19.
These public health risks may increase seasonally. Each year, as winter approaches and the temperature drops, many persons experiencing homelessness move into shelters to escape the cold and the occupancy of shelters increases.
In short, evictions threaten to increase the spread of COVID-19 as they force people to move, often into close quarters in new shared housing settings with friends or family, or congregate settings such as homeless shelters. The ability of these settings to adhere to best practices, such as social distancing and other infection control measures, decreases as populations increase.
For the reasons described herein, I am extending and modifying the September 4, 2020 Order, as further extended by Section 502 of Title V, Division N of the Consolidated Appropriations Act, 2021. I have determined that extending the temporary halt in evictions in this Order constitutes a reasonably necessary measure under 42 CFR 70.2 to prevent the further spread of COVID-19 throughout the United States. I have further determined that measures by states, localities, or territories that do not meet or exceed these minimum protections are insufficient to prevent the interstate spread of COVID-19.
Based on the convergence of COVID-19, seasonal influenza, household crowding and transmission, and the increased risk of individuals sheltering in close quarters in congregate settings such as homeless shelters, which may be unable to provide adequate social distancing as populations increase, all of which may be exacerbated as winter continues, I have determined that extending the temporary halt on evictions, subject to further extension, modification, or rescission, is appropriate.
Therefore, under 42 CFR 70.2, subject to the limitations under the “Applicability” section, the September 4, 2020 Order is hereby modified and extended through March 31, 2021. Accordingly, a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action shall not evict any covered person from any residential property in any state or U.S. territory in which there are documented cases of COVID-19 that provides a level of public-health protections below the requirements listed in this Order.
This Order is not a rule within the meaning of the Administrative Procedure Act (“APA”) but rather an emergency action taken under the existing authority of 42 CFR 70.2. The purpose of § 70.2 is to enable CDC to take swift steps to prevent contagion.
In the event that this Order qualifies as a rule under the APA, notice and comment and a delay in effective date are not required because there is good cause to dispense with prior public notice and comment and the opportunity to comment on this Order and the delay in effective date. See 5 U.S.C. 553(b)(3)(B). Considering the public-health emergency caused by COVID-19, it would be impracticable and contrary to the public health, and by extension the public interest, to delay the issuance and effective date of this Order.
In the September 4, 2020 Order, the previous CDC Director determined that good cause existed because the public health emergency caused by COVID-19 made it impracticable and contrary to the public health, and by extension the public interest, to delay the issuance and effective date of the Order. The previous Director also found that a delay in the effective date of the Order would permit the occurrence of evictions—potentially on a mass scale—that would have potentially significant consequences. One such potential consequence would be that evicted individuals would move into close quarters in congregate or shared living settings, including homeless shelters, which would put the individuals at higher risk for COVID-19. Another potential consequence would be if evicted individuals become homeless and unsheltered, and further contribute to the spread of COVID-19. For these reasons, the previous Director concluded that the delay in the effective date of the Order would defeat the purpose of the Order and endanger the public health and, therefore, determined that immediate action was necessary. As a result, the previous Director issued the Order without prior notice and comment and without a delay in the effective date. Because these conditions continue to exist—indeed, have worsened—and because the extension granted in section 502 of Title V, Division N of the Consolidated Appropriations Act, 2021 is set to expire on January 31, 2021, I hereby conclude that immediate action is again necessary without prior notice and comment and without a delay in the effective date.
The rapidly changing nature of the pandemic requires not only that CDC act swiftly, but also deftly to ensure that its actions are commensurate with the threat. This necessarily involves assessing evolving conditions that inform CDC's determinations.
The conditions that existed on September 4, 2020 have only worsened. As of January 21, 2021, there have been over 24,400,000 cases and over 400,000 deaths. Data collected by Princeton University show that eviction filings are occurring; it is therefore expected that large numbers of evictions would be processed if the Order were to expire. [
Similarly, if this Order qualifies as a rule under the APA, the Office of Information and Regulatory Affairs (OIRA) has determined that it would be a major rule under the Congressional Review Act (CRA). But there would not be a delay in its effective date. The agency has determined that for the same reasons, there would be good cause under the CRA to make the requirements herein effective immediately
If any provision of this Order, or the application of any provision to any persons, entities, or circumstances, shall be held invalid, the remainder of the provisions, or the application of such provisions to any persons, entities, or circumstances other than those to which it is held invalid, shall remain valid and in effect.
This Order shall be enforced by federal authorities and cooperating state and local authorities through the provisions of 18 U.S.C. 3559, 3571; 42 U.S.C. 243, 268, 271; and 42 CFR 70.18. However, this Order has no effect on the contractual obligations of renters to pay rent and shall not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.
Under 18 U.S.C. 3559, 3571; 42 U.S.C. 271; and 42 CFR 70.18, a person violating this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death, or a fine of no more than $250,000 if the violation results in a death, or as otherwise provided by law. An organization violating this Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate criminal proceedings as appropriate seeking imposition of these criminal penalties.
Under 42 U.S.C. 243, the U.S. Department of Health and Human Services is authorized to cooperate with and aid state and local authorities in the enforcement of their quarantine and other health regulations and to accept state and local assistance in the enforcement of Federal quarantine rules and regulations, including in the enforcement of this Order.
While this Order to prevent eviction is effectuated to protect the public health, the states and units of local government are reminded that the Federal Government has deployed unprecedented resources to address the pandemic, including housing assistance.
The Department of Housing and Urban Development (HUD) has informed CDC that all HUD grantees—states, cities, communities, and nonprofits—who received Emergency Solutions Grants (ESG) or Community Development Block Grant (CDBG) funds under the CARES Act may use these funds to provide temporary rental assistance, homelessness prevention, or other aid to individuals who are experiencing financial hardship because of the pandemic and are at risk of being evicted, consistent with applicable laws, regulations, and guidance.
HUD has further informed CDC that:
HUD's grantees and partners play a critical role in prioritizing efforts to support this goal. As grantees decide how to deploy CDBG-CV and ESG-CV funds provided by the CARES Act, all communities should assess what resources have already been allocated to prevent evictions and homelessness through temporary rental assistance and homelessness prevention, particularly to the most vulnerable households.
HUD stands at the ready to support American communities take these steps to reduce the spread of COVID-19 and maintain economic prosperity. Where gaps are identified, grantees should coordinate across available Federal, non-Federal, and philanthropic funds to ensure these critical needs are sufficiently addressed and utilize HUD 's technical assistance to design and implement programs to support a coordinated response to eviction prevention needs. For program support, including technical assistance, please visit
Similarly, the Department of the Treasury has informed CDC that the funds allocated through the Coronavirus Relief Fund and the Emergency Rental Assistance Program may be used to fund rental assistance programs to prevent eviction. Visit
This Order is effective on January 31, 2021 and will remain in effect, unless extended, modified, or rescinded, through March 31, 2021.
The authority for this Order is Section 361 of the Public Health Service Act (42 U.S.C. 264) and 42 CFR 70.2.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of Agency Order.
The Centers for Disease Control and Prevention (CDC), a component of the U.S. Department of Health and Human Services (HHS), announces an Agency Order requiring persons to wear masks over the mouth and nose when traveling on any conveyance (
This Order takes effect at 11:59 p.m. Monday February 1, 2021.
Jennifer Buigut, Division of Global Migration and Quarantine, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H16-4, Atlanta, GA 30329. Email:
The virus that causes COVID-19 spreads very easily and sustainably between people who are in close contact with one another (within about 6 feet) mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks. These droplets can land in the mouths, eyes, or noses of people who are nearby and possibly be inhaled into the lungs. Some people without symptoms also spread the virus. In general, the more closely a person interacts with others and the longer that interaction, the higher the risk of COVID-19 spread.
This Order is issued to preserve human life; maintain a safe and operating transportation system; mitigate the further introduction, transmission, and spread of COVID-19 into the United States and from one state or territory into any other state or territory; and support response efforts to COVID-19 at the Federal, state, local, territorial, and tribal level.
Appropriately worn masks reduce the spread of COVID-19—particularly given the evidence of pre-symptomatic and asymptomatic transmission of COVID-19. Masks are most likely to reduce the spread of COVID-19 when they are widely used by people in public settings. Using masks along with other preventive measures, including social distancing, frequent handwashing, and cleaning and disinfecting frequently touched surfaces, is one of the most effective strategies available for reducing COVID-19 transmission.
This Order will remain in effect unless modified or rescinded based on specific public health or other considerations, or until the Secretary of Health and Human Services rescinds the determination under section 319 of the Public Health Service Act (42 U.S.C. 247d) that a public health emergency exists.
A copy of the Order is provided below and a copy of the signed order can be found at
Notice and Order; and subject to the limitations under “Applicability,” pursuant to 42 U.S.C. 264(a) and 42 CFR 70.2, 71.31(b), and 71.32(b):
(1) Persons
(2) A conveyance operator transporting persons into and within the United States
(3) A conveyance operators operating a conveyance arriving at or departing from a U.S. port of entry must require all persons on board to wear masks for the duration of travel as a condition of controlled free pratique.
(4) Conveyance operators must use best efforts to ensure that any person on the conveyance wears a mask when boarding, disembarking, and for the duration of travel. Best efforts include:
• Boarding only those persons who wear masks;
• instructing persons that Federal law requires wearing a mask on the conveyance and failure to comply constitutes a violation of Federal law;
• monitoring persons onboard the conveyance for anyone who is not wearing a mask and seeking compliance from such persons;
• at the earliest opportunity, disembarking any person who refuses to comply; and
• providing persons with prominent and adequate notice to facilitate awareness and compliance of the requirement of this Order to wear a mask; best practices may include, if feasible, advance notifications on digital platforms, such as on apps, websites, or email; posted signage in multiple languages with illustrations; printing the requirement on transit tickets; or other methods as appropriate.
(5) Operators of transportation hubs must use best efforts to ensure that any person entering or on the premises of the transportation hub wears a mask. Best efforts include:
• Allowing entry only to those persons who wear masks;
• instructing persons that Federal law requires wearing a mask in the transportation hub and failure to comply constitutes a violation of Federal law;
• monitoring persons on the premises of the transportation hub for anyone who is not wearing a mask and seeking compliance from such persons;
• at the earliest opportunity, removing any person who refuses to comply from the premises of the transportation hub; and
• providing persons with prominent and adequate notice to facilitate awareness and compliance with the requirement of this Order to wear a mask; best practices may include, if feasible, advance notifications on digital platforms, such as on apps, websites, or
“(1):
(i) The movement of any conveyance or the transportation of persons or property, including any portion of such movement or transportation that is entirely within a state or possession—
(ii) From a point of origin in any state or possession to a point of destination in any other state or possession; or
(iii) Between a point of origin and a point of destination in the same state or possession but through any other state, possession, or contiguous foreign country.
(2) Interstate traffic does not include the following:
(i) The movement of any conveyance which is solely for the purpose of unloading persons or property transported from a foreign country or loading persons or property for transportation to a foreign country.
(ii) The movement of any conveyance which is solely for the purpose of effecting its repair, reconstruction, rehabilitation, or storage.”
This Order shall be interpreted and implemented in a manner as to achieve the following objectives:
• Preservation of human life;
• Maintaining a safe and secure operating transportation system;
• Mitigating the further introduction, transmission, and spread of COVID-19 into the United States and from one state or territory into any other state or territory; and
• Supporting response efforts to COVID-19 at the Federal, state, local, territorial, and tribal levels.
This Order shall not apply within any state, locality, territory, or area under the jurisdiction of a Tribe that (1) requires a person to wear a mask on conveyances; (2) requires a person to wear a mask at transportation hubs; and (3) requires conveyances to transport only persons wearing masks. Such requirements must provide the same level of public health protection as—or greater protection than—the requirements listed herein.
In addition, the requirement to wear a mask shall not apply under the following circumstances:
• While eating, drinking, or taking medication, for brief periods;
• While communicating with a person who is hearing impaired when the ability to see the mouth is essential for communication;
• If, on an aircraft, wearing of oxygen masks is needed because of loss of cabin pressure or other event affecting aircraft ventilation;
• If unconscious (for reasons other than sleeping), incapacitated, unable to be awakened, or otherwise unable to remove the mask without assistance;
• When necessary to temporarily remove the mask to verify one's identity such as during Transportation Security Administration screening or when asked to do so by the ticket or gate agent or any law enforcement official.
This Order exempts the following categories of persons:
• A child under the age of 2 years;
• A person with a disability who cannot wear a mask, or cannot safely wear a mask, because of the disability as defined by the Americans with Disabilities Act (42 U.S.C. 12101
• A person for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the relevant workplace safety guidelines or federal regulations.
This Order exempts the following categories of conveyances, including persons on board such conveyances:
• Private conveyances operated solely for personal, non-commercial use;
• Commercial motor vehicles or trucks as these terms are defined in 49 CFR 390.5, if the driver is the sole occupant of the vehicle or truck;
• Conveyances operated or chartered by the U.S. military services provided that such conveyance operators observe Department of Defense precautions to prevent the transmission of COVID-19 that are equivalent to the precautions in this Order.
This Order applies to persons on conveyances and at transportation hubs directly operated by U.S. state, local, territorial, or tribal government authorities, as well as the operators themselves. U.S. state, local, territorial, or tribal government authorities directly operating conveyances and transportation hubs may be subject to additional federal authorities or actions, and are encouraged to implement additional measures enforcing the provisions of this Order regarding persons traveling onboard conveyances and at transportation hubs operated by these government entities.
To the extent permitted by law, and consistent with President Biden's Executive Order of January 21, 2021 (Promoting COVID-19 Safety in Domestic and International Travel),
There is currently a pandemic of respiratory disease (coronavirus disease 2019 or “COVID-19”) caused by a novel coronavirus (SARS-COV-2). As of January 27, 2021, there have been 99,638,507 confirmed cases of COVID-19 globally, resulting in more than 2,141,000 deaths. As of January 27, 2021, there have been over 25,000,000 cases identified in the United States and over 415,000 deaths due to the disease. New SARS-CoV-2 variants have emerged in recent weeks, including at least one with evidence of increased transmissibility.
The virus that causes COVID-19 spreads very easily and sustainably between people who are in close contact with one another (within about 6 feet) mainly through respiratory droplets produced when an infected person coughs, sneezes, or talks. These droplets can land in the mouths, eyes, or noses of people who are nearby and possibly be inhaled into the lungs. Infected people without symptoms (asymptomatic) and those in whom symptoms have not yet developed (pre-symptomatic) can also spread the virus. In general, the more closely an infected person interacts with others and the longer those interactions, the higher the risk of COVID-19 spread. COVID-19 may be transmitted by touching surfaces or objects that have the virus on them and then touching one's own or another person's eyes, nose, or mouth.
Masks help prevent people who have COVID-19, including those who are pre-symptomatic or asymptomatic, from spreading the virus to others.
Appropriately worn masks reduce the spread of COVID-19—particularly given the evidence of pre-symptomatic and asymptomatic transmission of COVID-19. Seven studies have confirmed the benefit of universal masking in community level analyses: in a unified hospital system,
Wearing a mask especially helps protect those at increased risk of severe illness from COVID-19
Traveling on multi-person conveyances increases a person's risk of getting and spreading COVID-19 by bringing persons in close contact with others, often for prolonged periods, and exposing them to frequently touched surfaces. Air travel often requires spending time in security lines and crowded airport terminals. Social distancing may be difficult if not impossible on flights. People may not be able to distance themselves by the recommended 6 feet from individuals seated nearby or those standing in or passing through the aircraft's aisles. Travel by bus, train, vessel, and other conveyances used for international, interstate, or intrastate transportation pose similar challenges.
Intrastate transmission of the virus has led to—and continues to lead to—interstate and international spread of the virus, particularly on public conveyances and in travel hubs, where passengers who may themselves be traveling only within their state or territory commonly interact with others traveling between states or territories or internationally. Some states, territories, Tribes, and local public health authorities have imposed mask-wearing requirements within their jurisdictional boundaries to protect public health.
Therefore, I have determined that the mask-wearing requirements in this Order are reasonably necessary to prevent the further introduction, transmission, or spread of COVID-19 into the United States and among the states and territories. Individuals traveling into or departing from the United States, traveling interstate, or traveling entirely intrastate, conveyance operators that transport such individuals, and transportation hub operators that facilitate such transportation, must comply with the mask-wearing requirements set forth in this Order.
America's transportation systems are essential. Not only are they essential for public health, they are also essential for America's economy and other bedrocks of American life. Those transportation systems carry life-saving medical supplies and medical providers into and across the nation to our hospitals, nursing homes, and physicians' offices. Trains, planes, ships, and automobiles bring food and other essentials to our communities and to our homes. Buses bring America's children and teachers to school. Buses, trains, and subways, bring America's workforce to their jobs.
Requiring masks on our transportation systems will protect Americans and provide confidence that we can once again travel safely even during this pandemic. Therefore, requiring masks will help us control this pandemic and aid in re-opening America's economy.
The United States and countries around the world are currently embarking on efforts to vaccinate their populations, starting with healthcare personnel and other essential workers at increased risk of exposure to SARS-CoV-2 and people at increased risk for severe illness from the virus. While vaccines are highly effective at preventing severe or symptomatic COVID-19, at this time there is limited information on how much the available COVID-19 vaccines may reduce transmission in the general population and how long protection lasts.
Until further notice, under 42 U.S.C. 264(a) and 42 CFR 70.2, 71.31(b), and 71.32(b), unless excluded or exempted as set forth in this Order, a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States. A person must also wear a mask at any transportation hub that provides transportation within the United States.
Conveyance operators traveling into or within the United States may transport only persons wearing masks and must use best efforts to ensure that masks are worn when embarking, disembarking, and throughout the duration of travel. Operators of transportation hubs must use best efforts to ensure that any person entering or on the premises of the transportation hub wears a mask.
As a condition of receiving controlled free pratique under 42 CFR 71.31(b) to enter a U.S. port, disembark passengers, and begin operations at any U.S. port of entry, conveyances arriving into the United States must require persons to wear masks while boarding, disembarking, and for the duration of travel. Conveyance operators must also require all persons to wear masks while boarding and for the duration of their travel on board conveyances departing from the United States until the conveyance arrives at the foreign destination, if at any time any of the persons onboard (passengers, crew, or conveyance operators) will return to the United States while this Order remains in effect. These travel conditions are
Requiring a properly worn mask is a reasonable and necessary measure to prevent the introduction, transmission and spread of COVID-19 into the United States and among the states and territories under 42 U.S.C. 264(a) and 42 CFR 71.32(b). Among other benefits, masks help prevent dispersal of an infected person's respiratory droplets that carry the virus. That precaution helps prevent droplets from landing in the eye, mouth, or nose or possibly being inhaled into the lungs of an uninfected person, or from landing on a surface or object that an uninfected person may then touch and then touch his or her own or another's eyes, nose, or mouth. Masks also provide some protection to the wearer by helping reduce inhalation of respiratory droplets.
This Order shall not apply within any state, locality, territory, or area under the jurisdiction of a Tribe, where the controlling governmental authority: (1) Requires a person to wear a mask on conveyances; (2) requires a person to wear a mask at transportation hubs; and (3) requires conveyances to transport only persons wearing masks. Those requirements must provide the same level of public health protection as—or greater protection than—the requirements listed herein.
In accordance with 42 U.S.C. 264(e), state, local, territorial, and tribal authorities may impose additional requirements that provide greater public health protection and are more restrictive than the requirements in this Order. Consistent with other federal, state, or local legal requirements, this Order does not preclude operators of conveyances or transportation hubs from imposing additional requirements, or conditions for carriage, that provide greater public health protection and are more restrictive than the requirements in this Order (
This Order is not a rule within the meaning of the Administrative Procedure Act (“APA”) but rather is an emergency action taken under the existing authority of 42 U.S.C. 264(a) and 42 CFR 70.2, 71.31(b), 71.32(b). In the event that a court determines this Order qualifies as a rule under the APA, notice and comment and a delay in effective date are not required because there is good cause to dispense with prior public notice and comment and the opportunity to comment on this Order and the delay in effective date. Considering the public health emergency caused by COVID-19, it would be impracticable and contrary to the public's health, and by extension the public's interest, to delay the issuance and effective date of this Order. Similarly, the Office of Information and Regulatory Affairs has determined that if this Order were a rule, it would be a major rule under the Congressional Review Act, but there would not be a delay in its effective date as the agency has determined that there would be good cause to make the requirements herein effective immediately under the APA.
This order is also an economically significant regulatory action under Executive Order 12866 and has therefore been reviewed by the Office of Information and Regulatory Affairs of the Office of Management and Budget. The agency is proceeding without the complete analysis required by Executive Order 12866 under the emergency provisions of 6(a)(3)(D) of that Order.
If any provision of this Order, or the application of any provision to any carriers, conveyances, persons, or circumstances, shall be held invalid, the remainder of the provisions, or the application of such provisions to any carriers, conveyances, persons, or circumstances other than those to which it is held invalid, shall remain valid and in effect.
To address the COVID-19 public health threat to transportation security, this Order shall be enforced by the Transportation Security Administration under appropriate statutory and regulatory authorities including the provisions of 49 U.S.C. 106, 114, 44902, 44903, and 46301; and 49 CFR part 1503, 1540.105, 1542.303, 1544.305 and 1546.105.
This Order shall be further enforced by other federal authorities and may be enforced by cooperating state and local authorities through the provisions of 18 U.S.C. 3559, 3571; 42 U.S.C. 243, 268, 271; and 42 CFR 70.18 and 71.2.
This Order shall enter into effect on February 1, 2021, at 11:59 p.m. and will remain in effect unless modified or rescinded based on specific public health or other considerations, or until the Secretary of Health and Human Services rescinds the determination under section 319 of the Public Health Service Act (42 U.S.C. 247d) that a public health emergency exists.
U.S. Geological Survey, Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Geological Survey (USGS) are proposing a new information collection.
Interested persons are invited to submit comments on or before April 5, 2021.
Send your comments on this information collection request (ICR) by mail to U.S. Geological Survey, Information Collections Officer, 12201 Sunrise Valley Drive MS 159, Reston, VA 20192; or by email to
To request additional information about this ICR, contact Michael Tinker by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below.
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.
Anyone with the requisite technical knowledge can use HydroAdd tool. Users will register in the HydroAdd website and are assigned editing roles by the USGS application administrators. When registering, editors are required to fill out a profile that contains organizational contact information. This information is stored in the application database. A future iteration of the HydroAdd Tool may have reporting functions that are visible to all users. These reports could detail the edit submissions within specified date ranges. The user's email and organization could be visible on these reports and could be viewed by all users have editing privileges in the application.
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
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before January 23, 2021, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by February 18, 2021.
Comments are encouraged to be submitted electronically to
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before January 23, 2021. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Nominations submitted by State or Tribal Historic Preservation Officers:
A request for removal has been made for the following resource:
Additional documentation has been received for the following resources:
Section 60.13 of 36 CFR part 60.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Draft Top, LLC on January 28, 2021. 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 apparatus and methods of opening containers. The complainant names as respondents: Mimtiml of China; KKS Enterprises Co., Ltd. of China; Kingskong Enterprises Co., Ltd.; Du Zuojun of China; WN Shipping USA, Inc. of Inwood, NY; Shuje Wei of Pomona, CA; Express Cargo Forwarded, Ltd. of Los Angeles, CA; Tofba International, Inc. of Hawthorne, CA; and Hou Wenzheng of Hebron, KY. The complainant requests that the Commission issue a general exclusion order and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant,
(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. 3529”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to issue a general exclusion order (“GEO”) prohibiting the unlicensed importation of foldable reusable drinking straws and components and accessories thereof that infringe one or more of claims 1-12 and 14-17 of U.S. Patent No. 10,123,641 (“the '641 patent”). The investigation is terminated in its entirety.
Cathy Chen, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 202-205-2392. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on November 13, 2019, based on a complaint filed on behalf of The Final Co. LLC (“Final” or “Complainant”) of Santa Fe, New Mexico. 84 FR 61639 (Nov. 13, 2019). The complaint, as amended, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain foldable reusable drinking straws and components and accessories thereof by reason of infringement of claims 1-12, 14-17, and 20 of the '641 patent.
The Commission terminated respondents Ningbo Weixu and Hunan Jiudi from the investigation based on Complainant's partial withdrawal of the complaint.
On March 16, 2020, the Commission found the remaining fifteen respondents (collectively, the “Defaulted Respondents”) in default. Order No. 8 (Mar. 3, 2020),
On April 7, 2020, Complainant filed a motion for summary determination of a violation of section 337 by the Defaulted Respondents. On May 5, 2020, Complainant filed a motion for leave to supplement the motion for summary determination, and the ALJ granted leave on May 8, 2020. On May 27, 2020, OUII filed its response in support of Complainant's motion.
On July 17, 2020, the ALJ issued Order No. 13, an ID granting in part the motion for summary determination.
Also, on July 17, 2020, the ALJ issued Order No. 14, which required the parties to choose from several options on how to proceed.
On August 7, 2020, Complainant filed a motion for partial summary determination regarding the economic prong of the domestic industry requirement, a remedy in the form of a general exclusion order, and a bond during the period of Presidential review in the amount of one hundred percent (100%) of the entered value. On August 14, 2020, Complainant moved to replace Exhibit 11C within its motion for summary determination, which was granted by the ALJ.
On August 17, 2020, Complainant moved to terminate the investigation with respect to asserted claim 20 by reason of withdrawal of the complaint allegations. On August 26, 2020, the ALJ granted the motion to withdraw claim 20.
On September 22, 2020, the ALJ issued Order No. 18, an ID granting Complainant's motion for partial summary determination that a domestic industry exists with respect to Complainant's research and development investments under section 337(a)(3)(C) and finding a violation of section 337 with respect to claims 1-12 and 14-17 of the '641 patent by the Defaulted Respondents. The ID also denied Complainant's motion for summary determination under section 337(a)(3)(B). No petitions for review of the ID were filed.
The ALJ concurrently issued a Recommended Determination (“RD”) on the issues of remedy and bonding. The RD recommended the issuance of a GEO and setting the bond during the period of Presidential review in the amount of one hundred percent (100%) of the entered value. The Commission solicited comments from the public on public interest issues raised by the recommended relief. 85 FR 67010 (Oct. 21, 2020). No submissions were filed in response to the Commission Notice.
On November 5, 2020, the Commission determined not to review Order No. 18, thereby adopting the ID's finding of a violation of section 337 in connection with claims 1-12 and 14-17 of the '641 patent. 85 FR 71942-43 (Nov. 12, 2020). (The Order's denial of summary determination as to section 337(a)(3)(B) was not an initial determination subject to Commission review and hence was not adopted by the Commission). The Commission also requested the parties, interested government agencies, and other interested parties to file submissions on the issues of remedy, the public interest, and bonding during the period of Presidential review.
The Commission has determined that the appropriate remedy in this investigation is a GEO prohibiting the unlicensed importation of foldable reusable drinking straws and components and accessories thereof that infringe one or more of claims 1-12 and 14-17 of the '641 patent. The foldable reusable drinking straws and components and accessories thereof that are subject to the GEO are as follows: individual foldable reusable drinking straws and components thereof, cases used to store the foldable reusable drinking straws, and tools used for cleaning the foldable reusable drinking straws. The Commission has also determined that the public interest factors enumerated in section 337(g)(1), 19 U.S.C. 1337(g)(1), do not preclude issuance of the exclusion order. Finally, the Commission has determined that the bond during the period of Presidential review pursuant to 19 U.S.C. 1337(j) shall be in the amount of one hundred percent (100%) of the entered value of the imported articles subject to the GEO. The Commission's order was delivered to the President and to the United States Trade Representative on the day of its issuance. The investigation is hereby terminated.
The Commission vote for this determination took place on January 28, 2021.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
January 27, 2021.
Alejandro Orozco (202-205-3177), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Effective September 17, 2020, the Commission established a schedule for the conduct of the subject full five-year reviews (85 FR 59545, September 22, 2020). Counsel for domestic producers filed its request to appear at the hearing on January 26, 2021. No other party filled a timely request to appear at the hearing. On January 27, 2021, counsel for the domestic producers filed a request that the Commission cancel the hearing. Counsel indicated a willingness to respond to any Commission questions in lieu of an actual hearing and, in the alternative, domestic producers would appear at the hearing if held. Consequently, the public hearing in connection with these reviews, scheduled to begin at 9:30 a.m. on February 2, 2021, via videoconference, is cancelled. The Commission determined that no earlier announcement of this cancellation was possible. Parties to these reviews should respond to any written questions posed by the Commission in their posthearing briefs, which are due to be filed on February 10, 2021.
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 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 States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of iRobot Corporation on January 28, 2021. 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 robotic floor cleaning devices and components thereof. The complainant names as respondents: SharkNinja Operating LLC, SharkNinja Management LLC, SharkNinja Management Co., and EP Midco LLC of Needham, MA; and SharkNinja Hong Kong Co. Ltd. of Hong Kong. The complainant requests that the Commission issue a limited exclusion order a cease and desist orders and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3530”) 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.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-day notice.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Department of Justice (DOJ), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection (IC) is also being published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until April 5, 2021.
If you have additional comments, regarding the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact: John Dugan, Chief, Physical Security Programs Branch/Security & Emergency Programs Division, either by mail at 99 New York Avenue NE, Washington, DC 20226 or by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
On January 20, 2021, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Utah in the lawsuit entitled
If approved by the court, the consent decree would resolve the claims of the United States against US Magnesium LLC (“USM”), the Renco Group, Inc. (“Group”), the Ira Leon Rennert Revocable Trusts (“Trusts”), and Mr. Ira Leon Rennert (“Rennert”), collectively Defendants, for injunctive relief and civil penalties for alleged violations of the Resource Conservation and Recovery Act (“RCRA”) at USM's magnesium production facility in Rowley, Utah. The consent decree would require USM to: (1) Make extensive process modifications at the facility, including construction of a filtration plant to treat all wastewaters, that will reduce the environmental impacts from its production operations and ensure greater protection for its workers; (2) establish appropriate financial assurance for closure or corrective action of certain waste management areas in the operating areas of the facility; (3) pay a civil penalty of $250,000; and (4) perform the CERCLA Response Action, which includes construction of a barrier wall around 1700 acres of the operating portions of the facility to prevent leaks or breaches of hazardous materials to the Great Salt Lake, and the payment of EPA costs incurred in connection with the CERCLA Response Action. The United States and the Settling Defendants also would implement the 2019 bankruptcy settlement that resolved claims between the United States and USM's predecessors.
In return for the Settling Defendants' compliance with these requirements, the consent decree would resolve past RCRA violations at the Rowley facility that the United States' complaint alleges. Provided that the Settling Defendants remain in compliance with the consent decree's requirements, including payment of EPA CERCLA Response Action costs, the United States would covenant not to sue the Settling Defendants under CERCLA for the CERCLA Response Action and EPA's CERCLA Response Action costs.
The publication of this notice opens a period for public comment on the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $101.00 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the Appendices and signature pages, the cost is $20.00.
Bureau of Labor Statistics, Department of Labor.
Notice of information collection; request for comment.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Bureau of Labor Statistics (BLS) is soliciting comments concerning the proposed new information collection of the “QCEW Business Supplement.” A copy of the proposed information collection request (ICR) can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
Send comments to Carol Rowan, BLS Clearance Officer, Division of Management Systems, Bureau of Labor Statistics, Room 4080, 2 Massachusetts Avenue NE, Washington, DC 20212. Written comments also may be transmitted by email to
Carol Rowan, BLS Clearance Officer, at 202-691-7628 (this is not a toll free number). (See
The Bureau of Labor Statistics (BLS) intends to implement a new collection for a QCEW Business Supplement (QBS). Through the QBS, the BLS will be able to capture information on the US economy in a more efficient and timely manner than is currently possible. The QBS is intended to be a versatile collection instrument that will allow BLS to quickly collect and publish information so that stakeholders and data users can understand the impact of specific events on the US economy as they occur, improving the relevancy of the data.
The QBS is designed to incorporate new questionnaires as the need arises based on topics of relevance. BLS initially published a notice requesting comments on this collection in 85 FR
The BLS will use the Annual Refiling Survey (ARS) as a platform for conducting the QBS. Each year, the BLS Quarterly Census of Employment and Wages (QCEW) Program conducts the ARS by reaching out to approximately 1.2 million establishments requesting verification of their main business activity, and their mailing and physical location addresses. The fully web-based ARS allows for an accelerated timeframe for collection and provides a low-cost platform for conducting the quick, short surveys of the QBS. The QBSs accompanying the ARS will have little data collection overhead, leveraging the respondent contact process undertaken as part of the production ARS. QBS Respondents already logged into the ARS secure website will be directed to a QBS and asked to answer a limited number of additional survey questions after completing the ARS.
Office of Management and Budget clearance is being sought for the QCEW Business Supplement (QBS).
The QBS, based on the ARS data collection platform, will allow BLS to leverage the multitude of information already known about the sample units to allow for targeted sampling. It also will permit BLS to target only the units meeting the specific set of characteristics desired allowing BLS to delve into specific areas of economic interest without burdening establishments which do not meet the specific targeted features.
The QBS is designed to encourage a fast response and minimize respondent burden on the public by limiting the number of questions on each survey and by asking questions that respondents should be able to answer without research or referring to records. In this manner, BLS can provide information that is needed quickly and is not collected elsewhere.
The QBS is designed to incorporate new questionnaires as the need for data arises, as frequently as twice a year. The BLS plans to conduct multiple small surveys under the QBS clearance. The initial survey will focus on how establishments are coping with the current status of the Coronavirus pandemic and the transition period that they are currently experiencing. Questions will cover a range of establishment topics including changes in telework, paid sick leave, demand for products and services, changes in products or services ordered, rehiring activities, recruitment activities, mandated closures, and government assistance.
The Bureau of Labor Statistics 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.
• 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 submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they also will become a matter of public record.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of NACOSH membership appointments.
On January 14, 2020, the Secretary of Labor appointed four members to serve on NACOSH.
The Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 656) established NACOSH to advise, consult with and make recommendations to the Secretary of Labor and the Secretary of Health and Human Services (HHS) on matters relating to the administration of the OSH Act. NACOSH is a continuing advisory committee of indefinite duration.
NACOSH operates in accordance with the Federal Advisory Committee Act
NACOSH is comprised of 12 members: Four public representatives, two management representatives, two labor representatives, two occupational safety professional representatives, and two occupational health professional representatives (29 CFR 1912a.2). The Secretary of Labor appoints all of these members. However, the Secretary of HHS designates four of the representatives: Two of the four public representatives and the two occupational health professional representatives. The terms of six NACOSH of the twelve members expired on July 31, 2020, and the remaining six NACOSH members' terms will expire on July 31, 2021.
On February 26, 2020, OSHA published a request for nominations for the six NACOSH positions that would expire on July 31, 2020. Specifically, OSHA requested nominations for:
• Two public representatives (one to be designated by the Secretary of HHS);
• One management representative;
• One labor representative;
• One occupational safety professional representative; and
• One occupational health professional representative (to be designated by the Secretary of HHS).
After the nomination period closed, OSHA provided HHS with all nominations and supporting materials for the two vacancies in the membership categories which the Secretary of HHS designates. HHS has indicated that the Secretary of HHS will designate two NACOSH members to fill the vacant positions at a later date. In the meantime, the Secretary of Labor proceeded with the appointment of individuals to the remaining four positions.
NACOSH members serve staggered terms, unless the member becomes unable to serve, resigns, ceases to be qualified to serve, or is removed by the Secretary. Accordingly, the Secretary has appointed four members to a two-year term. If a vacancy occurs before a term expires, the Secretary may appoint a new member who represents the same interest as the predecessor to serve the remainder of the unexpired term. The Committee must meet at least two times a year (29 U.S.C. 656(a)(2)).
OSHA received nominations of highly qualified individuals in response to the agency's request for nominations (85 FR 11111, February 26, 2020). The Secretary appointed NACOSH members on the basis of their experience and competence in the field of occupational safety and health (29 CFR 1912a.2). The newly appointed NACOSH members are:
Amanda L. Edens, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by 5 U.S.C. App. 2; 29 U.S.C. 656; 29 CFR part 1912a; 41 CFR part 102-3; and Secretary of Labor's Order No. 8-2020 (85 FR 58393, September 18, 2020).
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of TUV SUD America, Inc. (TUVAM) for expansion of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before February 18, 2021.
Submit comments by any of the following methods:
Information regarding this notice is available from the following sources:
OSHA is providing notice that TUV SUD America, Inc. (TUVAM) is applying for expansion of the current recognition as a NRTL. TUVAM requests the addition of eight test standards to their NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within its scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by its applicable test standard; and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes an application by a NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in Appendix A, 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
TUVAM currently has six facilities (sites) recognized by OSHA for product testing and certification, with its headquarters located at: TUV SUD America, Inc., 10 Technology Drive, Peabody, MA 01960. A complete list of TUVAM's scope of recognition (including sites) recognized by OSHA is available at:
TUVAM submitted an application, dated August 29, 2019 (OSHA-2007-0043-0032), to expand their recognition to include eight additional test standards. OSHA staff performed detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.
Table 1 below lists the appropriate test standards found in TUVAM's application for expansion for testing and certification of products under the NRTL Program.
TUVAM submitted an acceptable application for expansion of the NRTL scope of recognition. OSHA's review of the application file, and pertinent documentation, indicate that TUVAM can meet the requirements prescribed by 29 CFR 1910.7 for expanding their recognition to include the addition of these eight test standards for NRTL testing and certification listed above. This preliminary finding does not constitute an interim or temporary approval of TUVAM's application.
OSHA welcomes public comment as to whether TUVAM meets the requirements of 29 CFR 1910.7 for expansion of the recognition as a NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. Commenters must submit the written request for an extension by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer period. OSHA may deny a request for an extension if the request is not adequately justified. To obtain or review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office, at the above address. These materials also are available online at
OSHA staff will review all comments to the docket submitted in a timely manner and, after addressing the issues raised by these comments, will make a recommendation to the Assistant Secretary for Occupational Safety and Health as to whether to grant TUVAM's application for expansion of the scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of its final decision in the
Amanda L. Edens, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to Section 29 U.S.C. 655(6)(d), Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020), and 29 CFR 1905.11.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the applications of TUV Rheinland of North America, Inc., for expansion of the scope of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the applications.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before February 18, 2021.
Information regarding this notice is available from the following sources:
OSHA is providing notice that TUV Rheinland of North America, Inc. (TUVRNA), is applying for expansion of the current recognition as a NRTL. TUVRNA requests the addition of fourteen test standards to the NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition and for an expansion or renewal of this recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
TUVRNA currently has eight facilities (sites) recognized by OSHA for product testing and certification, with headquarters located at: TUV Rheinland of North America, Inc., 12 Commerce Road, Newtown, Connecticut 06470. A complete list of TUVRNA sites recognized by OSHA is available at
TUVRNA submitted two applications, one dated April 28, 2017 (OSHA-2007-0042-0042) and another dated August 21, 2017 (OSHA-2007-0042-0043), to expand recognition to include the addition of fourteen test standards. OSHA staff performed a detailed analysis of the application packets and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to these applications.
Table 1 lists the appropriate test standards found in TUVRNA's applications for expansion for testing
TUVRNA submitted two acceptable applications for expansion of the scope of recognition. OSHA's review of the application files indicates that TUVRNA can meet the requirements prescribed by 29 CFR 1910.7 for expanding recognition to include the addition of these fourteen test standards for NRTL testing and certification. This preliminary finding does not constitute an interim or temporary approval of TUVRNA's applications.
OSHA welcomes public comment as to whether TUVRNA meets the requirements of 29 CFR 1910.7 for expansion of recognition as a NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer time period. OSHA may deny a request for an extension if it is not adequately justified. To obtain or review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor, listed in
OSHA staff will review all comments to the docket submitted in a timely manner. After addressing the issues raised by these comments, staff will make a recommendation to the Assistant Secretary of Labor for Occupational Safety and Health on whether to grant TUVRNA's applications for expansion of the scope of recognition. The Assistant Secretary will make the final decision on granting the applications. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of this final decision in the
Amanda L. Edens, Deputy Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393, September 18, 2020) and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of SolarPTL, LLC. (PTL), requesting renewal of recognition as a Nationally Recognized Testing Laboratory (NRTL).
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before February 18, 2021.
Information regarding this notice is available from the following sources:
OSHA recognition of a NRTL signifies that the organization meets the requirements in Section 1910.7 of Title 29, Code of Federal Regulations (29 CFR 1910.7). Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition and is not a delegation or grant of government authority. As a result of recognition, employers may use products properly approved by the NRTL to meet OSHA standards that require testing and certification. OSHA maintains an informational web page for each NRTL that details the scope of recognition available at
OSHA processes applications by a NRTL for renewal of recognition following requirements in Appendix A to 29 CFR 1910.7. OSHA conducts renewals in accordance with the procedures in 29 CFR 1910.7, Appendix A, paragraph II.C. In accordance with these procedures, NRTLs submit a renewal request to OSHA, not less than nine months or no more than one year, before the expiration date of the current recognition. The submission includes a request for renewal and any additional information the NRTL wishes to submit to demonstrate continued compliance with the terms of the NRTL recognition and 29 CFR 1910.7. If OSHA has not conducted an on-site assessment of the NRTL's headquarters and key sites within the past 18 to 24 months, it will schedule the necessary on-site assessments prior to the expiration date of the NRTL's recognition. Upon review of the submitted material and, as necessary, the successful completion of the on-site assessment, OSHA announces the preliminary decision to grant or deny renewal in the
The current address of the PTL facility recognized by OSHA and included as part of the renewal request is: SolarPTL, 1107 West Fairmont Avenue, Tempe, Arizona 85252.
PTL initially received OSHA recognition as a NRTL in a
As a result of the nonconformities identified during OSHA's assessments of PTL during this recognition period, PTL must abide by the conditions noted below in addition to those conditions already required by 29 CFR 1910.7:
1. PTL must inform OSHA as soon as possible, in writing, of any change of
ownership, facilities, or key personnel, and of any major change in their operations as a NRTL, and provide details of the change(s);
2. PTL must agree to increased OSHA oversight of their operations including:
(a) More frequent on-site assessments of PTL facilities; and
(b) PTL shall continue to provide OSHA with written notification of any new or revised NRTL certificates that are issued on or after December 14, 2017, within 7 days of issuing the certification. This notification shall include:
(a) Name and address of the applicant;
(b) Model number(s) for the certified products;
(c) PTL Certification number;
(d) PTL Project number;
(e) Name of PTL staff involved with the project; and
(f) Location where the product evaluation and testing took place.
3. Upon request, PTL must provide copies of the test data, certification report or other related information for new or revised certifications to OSHA.
OSHA is providing notice that PTL is applying for renewal of recognition as a NRTL. This renewal covers PTL's existing NRTL scope of recognition. OSHA evaluated PTL's application for renewal and preliminarily determined that PTL can continue to meet the requirements prescribed by 29 CFR 1910.7 for recognition. This information includes OSHA's audits of PTL's recognized NRTL site during this recognition period, and the satisfactory resolution of nonconformities with the requirements of 29 CFR 1910.7. This preliminary finding does not constitute an interim or temporary approval of the request.
OSHA welcomes public comment as to whether PTL meets the requirements of 29 CFR 1910.7 for renewal of their recognition as a NRTL. Comments should consist of pertinent written documents and exhibits. Commenters needing more time to comment must submit a request in writing, stating the reasons for the request. OSHA must receive the written request for an extension by the due date for comments. OSHA will limit any extension to 30 days unless the requester justifies a longer period. OSHA may deny a request for an extension if it is not adequately justified. To obtain or review copies of the publicly available information in PTL's application and
The NRTL Program staff will review all comments to the docket submitted in a timely manner and, after addressing the issues raised by these comments, will make a recommendation to the Assistant Secretary on whether to grant PTL's application for renewal. The Assistant Secretary will make the final decision on granting the application and, in making this decision, may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of this final decision in the
Amanda L. Edens, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2)), Secretary of Labor's Order No. 8-2020 (85 FR 58393, Sept. 18, 2020), and 29 CFR 1910.7.
Library of Congress.
Notice of convening of IT modernization public stakeholder committee.
The Library of Congress is convening a public committee to enhance communication and provide a public forum for the technology-related aspects of the U.S. Copyright Office's modernization initiative. At this time, the Library is announcing that it will accept applications from qualified members of the public to serve on this committee. The scope of contributions made by the committee are limited to the specific topics set forth in this notice. Membership will be on a volunteer basis, with the expectation of in-person or virtual participation at two open forums a year at the member's own expense.
The application period will be until March 15, 2021. The first meeting of the committee will be in early summer 2021, and meetings will continue twice a year for the duration of the Copyright Office IT modernization efforts, currently estimated to conclude at the end of fiscal year 2023. Meetings may be held by web conference as appropriate, and schedules are subject to change due to the evolving coronavirus pandemic.
The Library of Congress at
The Library of Congress will form a public committee on Copyright Office information technology (IT) modernization. The committee will be managed by the Office of the Chief Information Officer (OCIO), with support from the U.S. Copyright Office and from other Library offices as necessary. The goal of the committee will be to expand and enhance communication with external stakeholders on IT modernization of Copyright Office systems and to provide an ongoing public forum for sharing information and answering questions related to this initiative.
Members of the Copyright Public Modernization Committee will provide feedback to the Library on the technology-related aspects of the Copyright Office's modernization initiative, including both Copyright Office IT systems and broader Library IT systems that interface with and/or support Copyright Office operations.
Members of the public who seek to participate in the Copyright Public Modernization Committee should submit a current curriculum vitae and a statement of interest of no more than 1000 words addressing the questions identified below no later than March 15, 2021. Answers can be submitted via email at
The public stakeholder committee will have a limited number of seats. Thus, the application and selection process is expected to be competitive. The Library will seek to select a membership that is representative of the broad and diverse Copyright Office stakeholder community. The areas of relevant expertise for membership include skill in communicating on complex technical issues; the ability to work collaboratively; and knowledge of technology relevant to Copyright Office services.
For the Statement of Interest, the applicant need not address every subject identified below, but the Library requests that applicants clearly identify and separately address each numbered subject for which a response is submitted. Answers will be evaluated by the Library to select a committee with members that represent the broadest possible cross-section of Copyright Office stakeholders.
1. An important skill for members of the CPMC is the ability to communicate, whether orally or in writing, on complex technological issues, including describing their impact on the needs or interests of Copyright Office stakeholders. Please identify any relevant experience you have working and communicating on technological issues with these or any other relevant parties:
(a) Individual creators and copyright owners;
(b) Large corporate creators and companies that own or manage copyrights;
(c) Small-to-medium size enterprises that own or manage copyrights;
(d) Creators, copyright owners, or copyright users from the following sectors: photography, motion picture, musical works, sound recordings, graphic arts, publishing, software, and information technology;
(e) users of Copyright Office services, including but not limited to individuals or entities that register their works with the Office, record copyright-related documents with the Office, or benefit from or pay into the licensing systems administered by the Copyright Office;
(f) user interest groups, including researchers, universities, archives, and libraries; and
(g) representatives of the public and public interest groups (including organizations involved in issues related to open government, public government data and APIs, and government use of technology).
2. Another important skill for members of the CPMC is the ability to work collaboratively with others, including diverse stakeholders. Please describe any relevant past experience developing and maintaining relationships with a variety of individuals; communicating effectively about topics involving inter-dependencies, competing priorities, and diverse audiences/user groups; or reaching a consensus among diverse stakeholders with conflicting interests.
3. A key skill that the Library is seeking in members of the CPMC is knowledge of the technology relevant to Copyright Office IT modernization and the Office's recent initiatives. Please describe any relevant experience in the following sectors: government innovation and/or technology, copyright law and Copyright Office services, rights management, and the development and use of IT systems in library, cultural heritage, museum, creative industry or other settings.
4. Please describe your knowledge of user-centered strategies and design methods, including any experience applying iterative design principles to solving complex problems.
5. If your application is endorsed by other stakeholders or associations, please identify them.
National Security Commission on Artificial Intelligence.
Notice of Federal Advisory Committee virtual public meeting.
The National Security Commission on Artificial Intelligence (the “Commission”) is publishing this notice to announce that the following Federal Advisory Committee virtual public meeting will take place.
Wednesday, February 17, 2021, 1:00 p.m. to 4:00 p.m. Eastern Standard Time (EST).
Ms. Angela Ponmakha, 703-614-6379 (Voice),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C., Appendix), the Government in the Sunshine Act (5 U.S.C. 552b), and 41 CFR 102-3.140 and 102-3.150.
The Commission will deliberate on the draft implementation plans and consider them for inclusion in the Commission's final report to Congress and the Administration. The meeting will adjourn at 4:00 p.m. EST.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556.
NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
1. NSF announces funding opportunities on the NSF website and
2. Proposals are assigned to the appropriate program(s) for review. Each proposal is assigned a Program Officer (PO) who selects external reviewers to evaluate the proposal according to the two NSF merit review criteria, Intellectual Merit and Broader Impacts. The Intellectual Merit criterion encompasses the potential to advance knowledge. The Broader Impacts criterion encompasses the potential to benefit society and contribute to the achievement of specific, desired societal outcomes. Programs may have additional review criteria particular to the goals and objectives of the program. The NSF guidelines for the selection of reviewers are designed to ensure selection of experts who can give program officers the proper information needed to make a recommendation in accordance with the merit review criteria. POs utilize the proposal's reference list, the investigator's suggested reviewers, and personal knowledge of individual reviewers to identify a pool of diverse experts with respect to type of organization represented, demographics, experience, and geographic balance, selecting appropriate reviewers with no apparent potential conflicts. Most proposals are reviewed by three to ten content expert reviewers who provide written feedback on the proposal through FastLane. POs synthesize reviewer comments and issue a recommendation to either decline or award funding based on reviewer feedback, panel discussions, the amount of available funding, and portfolio balances (
3. Each proposal recommended for award undergoes an administrative review conducted by NSF's Office of Budget, Finance, and Award Management. If it passes this review, the proposal is awarded.
Through this review process, NSF aims to identify the highest quality proposals to receive funding. The success of this process hinges on the assumptions that applicants will continue to submit to NSF their ideas for cutting-edge research and that experts in their respective fields will continue to provide high-quality reviews of those proposals.
The goal of this data collection is to assess the experiences of applicants and reviewers and their satisfaction with NSF's merit review process. The data collection for which this OMB approval is requested includes a Web-based survey that will be administered to all applicants and reviewers who participated in the merit review process between fiscal years (FY) 2018 and FY 2020 (2021 survey) and between FY 2020 and FY 2022 (2023 survey).
The specific research objectives are to—
1. Assess applicant and reviewer perceptions of, and satisfaction with, various aspects of the merit review process.
2. Document the time burden the merit review process places on reviewers and applicants.
3. Examine applicant and reviewer perceptions of the quality of reviews and of proposals.
4. Assess the changes in applicant and reviewer perceptions of burden, satisfaction, and quality between the 2019 and 2021 surveys and the 2021 and 2023 surveys.
5. Examine the variation of applicant and reviewer perception of satisfaction, burden, and quality by key population subgroups, including race/ethnicity, gender, and disability.
6. Describe the extent to which NSF's reviewer orientation video is correlated with awareness of different types of cognitive biases and the use of strategies to reduce cognitive bias and to provide constructive feedback.
7. Describe the extent to which the elimination of annual proposal deadlines affected reviewer and applicant burden, perceptions of proposal and review quality, and satisfaction with the merit review process.
8. Describe applicants and reviewers experiences with student support programs as well as what NSF application and funding support is associated with the receipt of financial support from NSF as an undergraduate or graduate student.
Data from the survey will be used to improve NSF's implementation of the merit review process.
Based on 2019 merit review survey data, it is anticipated that most survey respondents will be working at an academic institution, likely in a teaching and/or research capacity. Therefore, for the purpose of burden estimates, we have used the annual mean wage for postsecondary teachers from Bureau of Labor Statistics, which is $79,540.
Nuclear Regulatory Commission.
Export license application; opportunity to provide comments, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) received an application for an export license (XSNM3819) requested by U.S Department of Energy National Nuclear Security Administration (DOE/NNSA). On September 10, 2020, DOE/NNSA filed an application with the NRC seeking approval for a license to export high enriched uranium to France.
Submit comments by March 5, 2021. A request for a hearing or a petition for leave to intervene must be filed by March 5, 2021.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal Rulemaking
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Janice Owens, Office of International Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
Please refer to NRC-2020-0249 or Docket No. 11006398 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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Please include Docket ID NRC-2020-0249 or Docket No. 11006398 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
On September 18, 2020, NRC received an application from DOE/NNSA requesting a specific license (XSNM3819) to export high enriched uranium in the form of broken metals to France for ultimate use as reactor fuel (ADAMS Accession No. ML20262H100).
In accordance with paragraph 110.70(b) of title 10 of the
A request for hearing or petition for leave to intervene shall be filed In accordance with 10 CFR 110.89(a). As provided in section 110.89(a), a request for hearing or petition for leave to intervent may be filed with the Commission by delivery or by mail to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, or by electronic means in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
The information concerning this application for an export license follows.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
NUREG; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing NUREG-1307, Revision 18, “Report on Waste Burial Charges: Changes in Decommissioning Waste Disposal Costs at Low-Level Waste Burial Facilities.” This report, which is revised periodically, explains the formula acceptable to the NRC for determining the minimum decommissioning fund requirements for nuclear power reactor licensees, as required by NRC regulations. Specifically, this report provides the adjustment factor and updates the values for the labor, energy, and waste burial escalation factors of the minimum formula.
NUREG-1307, Revision 18, is available on February 3, 2021.
Please refer to NRC-2020-0233 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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•
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Emil Tabakov, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6814, email:
Pursuant to section 50.75 of title 10 of the
Revision 18 of NUREG-1307, “Report on Waste Burial Charges: Changes in Decommissioning Waste Disposal Costs at Low-Level Waste Burial Facilities,” modifies the previous revision to this report issued in February 2019 (ADAMS Accession No. ML19037A405) and incorporates updates to the adjustment factor and to the labor, energy, and waste burial escalation factors of the NRC minimum decommissioning fund formula. Due to modest pricing changes in low-level waste burial charges at the nation's four low-level waste disposal facilities, the minimum decommissioning fund formula amounts calculated by licensees, based on revised low-level waste burial factors presented in this report, will likely reflect minimum decommissioning fund requirements (on average) that are similar to or slightly lower than those reported by licensees in 2019.
The NRC published a notice in the
For the Nuclear Regulatory Commission.
Notice of Public Meetings.
The National Nanotechnology Coordination Office (NNCO), on behalf of the Nanoscale Science, Engineering, and Technology (NSET) Subcommittee of the Committee on Technology, National Science and Technology Council (NSTC), will facilitate stakeholder discussions of targeted nanotechnology topics through workshops, webinars, and Community of Interest meetings between the publication date of this Notice and December 31, 2021.
The NNCO will hold one or more workshops, webinars, networks, and Community of Interest teleconferences between the publication date of this Notice and December 31, 2021.
Event information, including addresses, will be posted on
For information regarding this Notice, please contact Patrice Pages at
These public meetings address the charge in the 21st Century Nanotechnology Research and Development Act for NNCO to provide “for public input and outreach . . . by the convening of regular and ongoing public discussions.” Workshop and webinar topics may include strategic planning; technical subjects; environmental, health, and safety issues related to nanomaterials (nanoEHS); business case studies; or other areas of potential interest to the nanotechnology community. Areas of focus for the Communities of Interest may include research on nanoEHS; nanotechnology education; nanomedicine; nanomanufacturing; or other areas of potential interest to the nanotechnology community. The Communities of Interest are not intended to provide any government agency with advice or recommendations; such action is outside of their purview.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe BYX Exchange, Inc. (the “Exchange” or “BYX”) proposes to amend the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”)
For purposes of Rules 4.5 through 4.16:
(a)-(b) No change.
(a) Recording and Reporting Industry Member Data
(1) No change.
(2) Subject to
(A) if the order is executed, in whole or in part:
[(i) An Allocation Report;]
(B)-(E) No change.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Compliance Rule regarding the CAT NMS Plan 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.
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 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 4.5.
The Exchange proposes to amend the definition of “Allocation Report” set forth in Rule 4.5(c) to reflect the requirements of the Allocation Exemption. 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 Commission 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 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 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
In accordance with the Allocation Exemption, the Exchange proposes to add proposed 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 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 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 the proposed rule change is consistent with the Securities Exchange Act of 1934 (“Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that this proposal is consistent with the Act because it is consistent with, and
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange 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.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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”),
Cboe EDGX Exchange, Inc. (the “Exchange” or “EDGX”) proposes to amend the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT
For purposes of Rules 4.5 through 4.16:
(a)-(b) No change.
(a) Recording and Reporting Industry Member Data
(1) No change.
(2) Subject to
(A) if the order is executed, in whole or in part:
[(i) An Allocation Report;]
(B)-(E) No change.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Compliance Rule regarding the CAT NMS Plan 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
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 Rule 4.5(c) to reflect the requirements of the Allocation Exemption. 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 Commission 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
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 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
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 the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, 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 Commission 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 impose 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.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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.
Each Tuesday of the month of February 2021 at 5:00 p.m.
The meetings will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
The meetings will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meetings. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of 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:
Matters relating to examinations and 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe EDGA Exchange, Inc. (the “Exchange” or “EDGA”) proposes to amend the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”)
For purposes of Rules 4.5 through 4.16:
(a)-(b) No change.
(a) Recording and Reporting Industry Member Data
(1) No change.
(2) Subject to
(A) if the order is executed, in whole or in part:
[(i) An Allocation Report;]
(B)-(E) No change.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Compliance Rule regarding the CAT NMS Plan 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 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
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 Rule 4.5(c) to reflect the requirements of the Allocation Exemption. 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 Commission 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 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 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 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 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 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
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, 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 Commission 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 impose 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.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) proposes to amend the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”)
For purposes of Rules 4.5 through 4.16:
(a)-(b) No change.
(a) Recording and Reporting Industry Member Data
(1) No change.
(2) Subject to
(A) if the order is executed, in whole or in part:
[(i) An Allocation Report;]
(B)-(E) No change.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements
The purpose of this proposed rule change is to amend the Compliance Rule regarding the CAT NMS Plan 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 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 4.5.
The Exchange proposes to amend the definition of “Allocation Report” set forth in Rule 4.5(c) to reflect the requirements of the Allocation Exemption. 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 Commission 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 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 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 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 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 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 the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, 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 Commission 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 impose 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.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend Chapter 7, Section B of the Rules, which is the Exchange's compliance rule (“Compliance Rule”) regarding the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”)
For purposes of this Section B to Chapter 7:
(a)-(b) No change.
(1) No change.
(2) Subject to subparagraph (a)(3) below, each Industry Member shall record and report to the Central Repository the following, as applicable (“Received Industry Member Data” and, collectively with the information referred to in subparagraph (a)(1), “Industry Member Data”)) in the manner prescribed by the Operating Committee pursuant to the CAT NMS Plan:
(A) if the order is executed, in whole or in part:
[(i) Allocation Report;]
(B)-(E) No change.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the Compliance Rule regarding the CAT NMS Plan 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 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
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 7.20.
The Exchange proposes to amend the definition of “Allocation Report” set forth in Rule 7.20(c) to reflect the requirements of the Allocation Exemption. Rule 7.20(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 7.20(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 Commission 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 7.20(c) (to be renumbered as Rule 7.20(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 7.20(c) (to be renumbered as Rule 7.20(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 7.22(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 7.22(a)(2)(F) to the Compliance Rule. Proposed Rule 7.22(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 7.22(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 7.20(l). Proposed Rule 7.20(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 7.22(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 7.22(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 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
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (“Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, 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 Commission 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 impose 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.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
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.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Tennessee dated 01/28/2021. Incident: Explosion. Incident Period: 12/25/2020.
Issued on 01/28/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 16856 4 and for economic injury is 16857 0.
The State which received an EIDL Declaration # is Tennessee.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Florida dated 01/28/2021. Incident: Hurricane Sally. Incident Period: 09/13/2020 through 09/18/2020.
Issued on 01/28/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16860 8 and for economic injury is 16861 0.
The State which received an EIDL Declaration # is Florida.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Florida dated 01/28/2021.
Issued on 01/28/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16858 8 and for economic injury is 16859 0.
The State which received an EIDL Declaration # is Florida.
Federal Aviation Administration (FAA), DOT.
Notice of Intent to Rule on Request to Release Airport Property for Land Disposal at the Liberal Mid-America Regional Airport (LBL), Liberal, Kansas.
The FAA proposes to rule and invites public comment on the release and sale of two parcels of land at the Liberal Mid-America Regional Airport (LBL), Liberal, Kansas.
Comments must be received on or before March 5, 2021.
Comments on this application may be mailed or delivered to the FAA at the following address: Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901 Locust Room 364, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: Lynn Koehn, The Koehn Law Firm, L.L.C., 217 N Washington, Liberal, KS 67901.
Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901 Locust Room 364, Kansas City, MO 64106, (816) 329-2603,
The request to release property may be reviewed, by appointment, in person at this same location.
The FAA invites public comment on the request to release approximately 4.28 acres of airport property at the Liberal Mid-America Regional Airport (LBL) under the provisions of 49 U.S.C. 47107(h)(2). The Airport Sponsor has requested from the FAA that two parcels of land for a combined 4.28 acres of property be released for sale to the City of Liberal Water Department. The FAA determined the request to release and sell property at Liberal Mid-America Regional Airport (LBL) submitted by the Sponsor meets the procedural requirements of the Federal Aviation Administration and the release and sale of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this Notice.
The following is a brief overview of the request:
Liberal Mid-America Regional Airport (LBL) is proposing the release and sale of two parcels of airport property, totaling 4.28 acres. The release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The sale of the subject property will result in the release of land and surface rights at the Liberal Mid-America Regional Airport (LBL) from the conditions of the AIP Grant Agreement Grant Assurances, but retaining the mineral rights. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market value and the property will be used as a water reservoir and warehouse by the City of Liberal Water Department.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before February 23, 2021.
Send comments identified by docket number FAA-2018-0283 using any of the following methods:
•
•
•
•
•
•
•
Mark Forseth, AIR-612, Technical Writing Section, Strategic Policy Management Branch, Policy and Innovation Division, Federal Aviation Administration, 2200 S 216th St., Des Moines, WA 98198-6547, email
This notice is published pursuant to 14 CFR 11.85.
Issued in Washington, DC.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning foreign tax credit; notification of foreign tax redeterminations.
Written comments should be received on or before April 5, 2021 to be assured of consideration.
Direct all written comments to Kinna Brewington, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Federal Deposit Insurance Corporation (FDIC).
Final rule.
The Federal Deposit Insurance Corporation (FDIC) is rescinding and removing its regulation titled “Nondiscrimination Requirements” and amending its regulation titled “Fair Housing” to make it applicable to State savings associations. These actions will streamline the FDIC's rules by eliminating unnecessary, inconsistent, and duplicative regulations, and ensure insured State nonmember banks and State savings associations generally will be subject to the same nondiscrimination requirements.
The final rule is effective on March 5, 2021. Compliance with 12 CFR 338.4(b) regarding displaying the current address of the FDIC's Consumer Response Center on an Equal Housing Lender poster is mandatory on February 3, 2022.
Navid Choudhury, Counsel, Legal Division, (202) 898-6526,
Title III of the Dodd-Frank Act
Section 316(c) of the Dodd-Frank Act
Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act
As noted, on June 14, 2011, operating pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferred OTS regulations. These transferred OTS regulations were published as new FDIC regulations in the
One of the OTS rules transferred to the FDIC requires State savings associations to not discriminate with respect to lending, employment, and other services provided. The OTS rule, formerly found at 12 CFR part 528 (part 528), was transferred to the FDIC with only technical changes and is now found in the FDIC's rules at part 390, subpart G, entitled “Nondiscrimination Requirements.”
On September 25, 2020, the FDIC published a notice of proposed rulemaking (NPR or “proposal”) regarding the removal of part 390, subpart G (85 FR 60389). Although few provisions of part 390, subpart G, have a direct counterpart within the FDIC's regulations, the provisions are largely duplicative of regulations implementing Federal laws (Equal Credit Opportunity Act (ECOA), Fair Housing Act (FHA), Equal Employment Opportunity Act (EEOA), and other laws concerning nondiscrimination in lending, employment, and services) implemented by other agencies. Regarding the functions of the former OTS that were transferred to the FDIC, section 316(b)(3) of the Dodd-Frank Act
For a statement of the rationale for rescission and removal of each section of subpart G, the reader is referred to the fulsome explanations provided in the NPR, which the FDIC references here as the basis for finalizing the regulations as proposed. In several instances, the proposal to remove a specific section of subpart G was coupled with a proposed amendment to part 338 of the FDIC's regulations. These amendments are also discussed below.
The FDIC's part 338, Fair Housing, applies to insured State nonmember banks and addresses discrimination in advertising and recordkeeping requirements under ECOA and the Home Mortgage Disclosure Act (HMDA). The FDIC proposed to make technical conforming edits to part 338 to encompass State savings associations and update the regulation. In short, the FDIC proposed to: (1) Revise § 338.1 to reflect that the advertising provisions of subpart A apply to State savings associations and their subsidiaries, to conform to and reflect the scope of FDIC's current supervisory responsibilities as the appropriate Federal banking agency for State savings associations; (2) in § 338.2, add a defined term “FDIC-supervised institution,” defined to mean “either a bank [defined in § 338.2(a) to mean “an insured State nonmember bank as defined in section 3 of the Federal Deposit Insurance Act”] or a State savings association”; (3) add a new subsection to define “State savings association” as having “the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act;”
The Supplementary Information section of this final rule sets forth the rationales for the amendments to the FDIC's regulations located in part 338 because, as proposed, the final rule revises FDIC regulations that will remain in place, albeit in an amended form.
Section 338.1 states that its purposes are to prohibit insured State nonmember banks from engaging in discriminatory advertising with regard to residential real estate-related transactions and require them to publicly display either the Equal Housing Lender poster set forth in § 338.4(b) of the FDIC's regulations or the Equal Housing Opportunity poster prescribed in 24 CFR part 110 in HUD's regulations. The FDIC proposed to amend § 338.1 to change references to “insured State nonmember banks” to refer to “FDIC-supervised institutions” to reflect that § 338.1 applies to all institutions for which the FDIC is the appropriate Federal banking agency.
Section 338.2 defines terms used in subpart A of part 338, including the term “bank” defined in § 338.2(a) to mean “an insured state nonmember bank as defined in section 3 of the Federal Deposit Insurance Act.” The FDIC proposed to add a new defined term “FDIC-supervised institution” meaning a bank or a State savings association to § 338.2(c) and to add to § 338.2(f), a new defined term “State savings association” having “the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).” The FDIC also proposed to make conforming technical edits to other subsections in § 338.2 to reflect the re-ordering of definitions.
Section 338.3 provides certain requirements with respect to dwelling-related advertisements to reflect the bank's nondiscrimination lending practice and prohibits such advertisements from including “words, symbols, models, or other forms of communication which express, imply, or suggest a discriminatory preference or policy of exclusion in violation of the provisions of the FHA or ECOA. To reflect that § 338.3 applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposed to amend § 338.3 to change references to “bank” to refer to “FDIC-supervised institution.”
Section 338.4(a) requires insured State nonmember banks engaged in extending dwelling-related loans to conspicuously display either an Equal Housing Lender poster or an Equal Housing Opportunity poster “in a central location within the bank where deposits are received or where such loans are made in a manner clearly visible to the general public entering the area, where the poster is displayed.” This requirement is substantially similar to the requirement in § 390.146 for State savings associations to display an Equal Housing Lender poster, which the FDIC proposed to rescind and remove. To reflect that § 338.4(a) applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposed to amend § 338.4(a) to change references to “insured State nonmember banks” to refer to “FDIC-supervised institutions.”
Section 338.4(b) sets forth the required text of the FDIC's Equal Housing Lender poster, including the former mailing address of the FDIC's Consumer Response Center (CRC), formatted as a Portable Document Format (PDF) image. When the CRC mailing address changed in 2011, the FDIC made available to FDIC-supervised institutions an Equal Housing Lender poster with the correct address of the CRC, both in English and in Spanish.
To assist FDIC-supervised institutions, the FDIC expects to continue to provide them with access to a poster stating the required text, including the accurate CRC mailing
Section 338.5 states that its purpose is to notify insured State nonmember banks of their duty both to collect and retain certain information about a home loan applicant's personal characteristics in accordance with Regulation B and to maintain, update and report a register of home loan applications in accordance with Regulation C. To reflect that § 338.5 applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposed to amend § 338.5 to change references to “insured State nonmember banks” to refer to “FDIC-supervised institutions.” The FDIC also proposed to make technical amendments to § 338.5 to reflect that Regulation B and Regulation C have been re-designated as 12 CFR part 1002 and 12 CFR part 1003, respectively, and are implemented by the CFPB.
Section 338.6 defines terms used in subpart B of part 338, including the term “bank” defined in § 338.6(a) to mean “an insured State nonmember bank as defined in section 3 of the Federal Deposit Insurance Act.” The FDIC proposed to add to § 338.2(c) a new defined term “FDIC-supervised institution” meaning a bank or a State savings association and add to § 338.6(d) a new defined term “State savings association” having “the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).”
Section 338.7 requires banks that receive an application for credit primarily for the purchase or refinancing of a dwelling occupied or to be occupied by the applicant as a principal residence where the extension of credit will be secured by the dwelling to request and retain the monitoring information required by Regulation B.
Section 338.8 requires banks and other lenders required to file a HMDA loan/application register (LAR) with the FDIC to maintain, update and report such LAR in accordance with Regulation C. To reflect that § 338.8 applies to all institutions for which the FDIC is the appropriate Federal banking agency, the FDIC proposed to amend § 338.8 to change references to “bank” to refer to “FDIC-supervised institution.” Additionally, to reflect amendments made to Regulation C regarding the responsibilities of a financial institution with respect to HMDA LAR data, the FDIC proposed to amend § 338.8 to require banks and other lenders required to file a HMDA LAR with the FDIC to collect, record, and report such LAR in accordance with Regulation C. The FDIC also proposed to make technical amendments to § 338.8 to reflect that Regulation C has been re-designated as 12 CFR part 1003 and is implemented by the CFPB.
Section 338.9 establishes requirements that apply if a bank refers applicants to a “controlled entity,” as defined in § 338.6, and purchases any home purchase loans or home improvement loans (as defined in Regulation C) that are originated by the controlled entity, as a condition to transacting any business with the controlled entity.
Because this final rule is intended to rescind and remove former OTS regulations that are duplicative of regulations under ECOA, FHA, or EEOA, the FDIC did not propose to impose substantive requirements regarding the business transactions between a State savings association and any entity it controls and therefore did not propose to replace the term “bank” with the term “FDIC-supervised institution” in § 338.9. However, the FDIC proposed to make technical amendments to § 338.9 to reflect that Regulation C has been re-designated as 12 CFR part 1003 and is implemented by the CFPB.
The FDIC received no comments on the rescission and removal of part 390, subpart G, nor to the amendments to part 338.
For the reasons stated herein and in the NPR, the FDIC is adopting the proposal as proposed.
As of June 30, 2020, the FDIC supervised 3,270 depository institutions,
The final rule rescinds §§ 390.140 and 390.141. As discussed previously, these sections include definitions and cross-references to other parts of section 390, so their rescission has no independent significance for institutions or applicants, but rather is a technical amendment associated with the rescission of subpart G of part 390 in its entirety.
The final rule rescinds § 390.142. As discussed in the NPR, this section has substantial overlap with the requirements of ECOA and Regulation B and the FHA and HUD's FHA regulations. Therefore, the FDIC believes that these aspects of the final rule are unlikely to significantly affect FDIC-supervised institutions or applicants.
The final rule rescinds § 390.143. As discussed in the NPR, aspects of § 390.143 are either duplicative of prohibitions under the general fair lending laws. With regard to § 390.143(b), the rule reduces compliance requirements associated with maintaining and distributing relevant paperwork. The FDIC believes that this is likely to pose a relatively small benefit to the 35 institutions to which it applies. Further, the FDIC believes that it is unlikely that the rescission of the requirement to establish, maintain, and distribute upon request nondiscriminatory loan underwriting standards for these 35 State savings associations would lead to an increase in discriminatory lending behavior because these institutions are still subject to the general fair lending laws. Therefore, the FDIC does not believe that this aspect of the final rule, if adopted, is likely to have substantive effects on FDIC-supervised institutions or applicants.
The final rule rescinds § 390.144. As discussed in the NPR, Section 390.144(a) is substantially similar to, and duplicative of, prohibitions under the general Federal fair lending laws.
The final rule rescinds § 390.145. As discussed in the NPR, Section 390.145 is substantially similar to § 338.4 and the rule amends § 338.4 to cover State savings associations in addition to insured State nonmember banks. Therefore, the FDIC believes that this aspect of the final rule is unlikely to have any substantive effect on FDIC-supervised institutions or applicants.
The final rule rescinds § 390.146. As discussed in the NPR, the requirements of § 390.146 are substantially similar to the requirements applicable to insured State nonmember banks under § 338.4. Section 338.4, however, unlike § 390.146, does not include a “recommendation” that a Spanish-language version of the Equal Housing Lender poster be posted in offices serving areas with a substantial Spanish-speaking population. The FDIC does, however, make a Spanish-language poster available to the institutions it supervises. Given the substantive similarity of much of § 390.146 to § 338.4, the FDIC believes that rescinding it is unlikely to have substantial effects on covered institutions or applicants.
With the adoption of this final rule the FDIC rescinds § 390.147. As discussed in the NPR, the FDIC believes that § 390.147 is duplicative now that reporting reason for denial is required rather than optional under Regulation C. Further, since Regulation C provides a partial exemption from reporting reason for denial and certain other data points for financial institutions that meet specified conditions, but no such exemption exists for State savings associations, the final rule establishes parity with respect to the reporting requirements for HMDA LARs for State savings associations and other FDIC-supervised institutions. The FDIC believes that this aspect of the final rule is unlikely to significantly affect FDIC-supervised institutions or applicants.
The final rule rescinds § 390.148. As discussed in the NPR, the FDIC believes that there is significant overlap between the requirements of § 390.148(a) through (d) and various aspects of the EEOA. Further, § 390.148(e) and (f) references multiple employment laws, including the EEOA, which with the rescission of the rest of § 390.148, would be unnecessary. Therefore, the FDIC believes that this aspect of the final rule is unlikely to substantively affect FDIC-supervised institutions or applicants.
The final rescinds § 390.149. As discussed in the NPR, the FDIC has procedures for referring complaints to HUD regarding lending discrimination by financial institutions and these procedures apply to complaints involving lending by State savings associations. However, there appears to be no equivalent requirement to the provisions in § 390.149 regarding referring complaints to the Equal Employment Opportunity Commission (EEOC) regarding employment discrimination by FDIC-supervised institutions. This aspect of the final rule will thus create parity between insured State nonmember banks and State savings associations with respect to complaints about discriminatory lending. Given that FDIC-supervised institutions are still subject to applicable elements of the EEOA and FDIC regulations and procedures, the FDIC does not believe that this aspect of the final rule is likely to have a substantive effect on covered institutions or their employees.
The final rule rescinds § 390.150. As discussed in the NPR, this section contains guidelines intended to serve as a resource for State savings associations when developing and implementing nondiscriminatory lending policies. State savings associations, like other FDIC-supervised banks, remain subject to Federal fair lending laws and regulations and the FDIC does not believe removal of these guidelines will have any meaningful effect on these institutions or their applicants.
Finally, the final rule makes some technical changes to FDIC's part 338 in order to make it applicable to State savings associations and provide for Equal Housing Lender posters to state the accurate CRC mailing address. As previously discussed, these changes are unlikely to have significant effects on State savings associations because those savings associations are already subject to substantively similar regulations. Rescinding part 390, subpart G, also will serve to streamline the FDIC's rules and eliminate unnecessary, inconsistent, and duplicative regulations. The final rule will ensure that insured State nonmember banks and State savings associations will be subject to the same antidiscrimination requirements.
Several alternatives to the final rule were available to the FDIC. The FDIC could have retained the current regulations in part 390, subpart G, but chose not to do so since most of the requirements in subpart G are duplicative of or substantively similar to existing requirements under Federal law or under the FDIC's current fair housing requirements in part 338. As discussed in the NPR, the FDIC also could have retained certain requirements in subpart G that the OTS issued pursuant to the Home Owners' Loan Act, but chose not to do.
In the instances where the regulations in part 390, subpart G, were more stringent than similar requirements for insured State nonmember banks, the FDIC could have applied those requirements to insured State nonmember banks. However, the FDIC chose not to adopt this alternative because it believes the fair lending laws and regulations that already apply to insured State nonmember banks provide an appropriate and sufficient framework to prohibit discrimination.
The FDIC believes that this final rule, which removes and rescinds part 390, subpart G, and makes the FDIC's existing nondiscrimination regulations applicable to State savings associations, is less burdensome to State savings associations and the public than the alternatives discussed above since it would promote consistency among the
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA),
The Regulatory Flexibility Act (RFA) generally requires that, in connection with a rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis describing the impact of the final rule on small entities.
As of June 30, 2020, the FDIC supervised 3,270 depository institutions,
As previously discussed, this final rule rescinds § 390.142. This section has substantial overlap with the requirements of ECOA and Regulation B and the FHA and HUD's FHA regulations. Therefore, the FDIC believes that these aspects of the final rule are unlikely to significantly affect small FDIC-supervised institutions or borrowers.
The final rule rescinds § 390.143. As discussed previously, aspects of § 390.143 are duplicative of prohibitions under the general fair lending laws. With regard to § 390.143(b), the final rule reduces compliance requirements associated with maintaining and distributing relevant paperwork. The FDIC believes that this is likely to pose a relatively small benefit to the 33 small institutions to which it applies. Further, the FDIC believes that it is unlikely that the rescission of the requirement to establish, maintain, and distribute upon request nondiscriminatory loan underwriting standards for these 33 small State savings associations will lead to an increase in discriminatory lending behavior because these institutions are still subject to the general fair lending laws. Therefore, the FDIC does not believe that this aspect of the final rule is likely to have substantive effects on small FDIC-supervised institutions or borrowers.
As discussed previously, the final rule rescinds § 390.144. Section 390.144(a) is substantially similar to, and duplicative of, prohibitions under the general Federal fair lending laws.
As discussed previously, the final rule rescinds § 390.145. Section 390.145 is substantially similar to § 338.4 and the final rule amends § 338.4 to cover State savings associations in addition to insured State nonmember banks. Therefore, the FDIC believes that this aspect of the final rule is unlikely to have any substantive effect on small FDIC-supervised institutions or borrowers.
As discussed previously, the final rule rescinds § 390.146. The requirements of § 390.146 are substantially similar to the requirements applicable to insured State nonmember banks under § 338.4. However, § 338.4, unlike § 390.146, does not include a “recommendation” that a Spanish-language version of the Equal Housing Lender poster be posted in offices serving areas with a substantial Spanish-speaking population. The FDIC does make a Spanish-language poster available to the institutions it supervises. Given the substantive similarity of much of §§ 390.146 to 338.4, the FDIC believes that rescinding it is unlikely to have substantial effects on small covered institutions or borrowers.
The final rule rescinds § 390.147. As previously discussed, the FDIC believes that § 390.147 is duplicative now that reporting reason for denial is required rather than optional under Regulation C. Further, since Regulation C provides a partial exemption from reporting reason for denial and certain other data points for financial institutions that meet specified conditions, but no such exemption exists for State savings associations, the final rule establishes parity with respect to the reporting requirements for HMDA LARs for State savings associations and other FDIC-supervised institutions. The FDIC believes that this aspect of the final rule is unlikely to substantively affect small FDIC-supervised institutions or borrowers.
As previously discussed, the final rule rescinds § 390.148. The FDIC believes that there is significant overlap between the requirements of § 390.148(a)-(d) and
As previously discussed, the final rule rescinds § 390.149. The FDIC has procedures for referring complaints to HUD regarding lending discrimination by financial institutions and these procedures apply to complaints involving lending by State savings associations. However, there appears to be no equivalent requirement to the provisions in § 390.149 regarding referring complaints to the EEOC regarding employment discrimination by FDIC-supervised institutions. This aspect of the final rule thus creates parity between State nonmember banks and State savings associations with respect to discriminatory complaints. Given that FDIC-supervised institutions are still subject to applicable elements of the EEOA and FDIC regulations and procedures, the FDIC does not believe that this aspect of the final rule is likely to have a substantive effect on covered institutions or their employees.
As previously discussed, the final rule rescinds § 390.150. This section contains guidelines intended to serve as a resource for State savings associations when developing and implementing nondiscriminatory lending policies. Small State savings associations, like other FDIC-supervised banks, remain subject to Federal fair lending laws and regulations and the FDIC does not believe removal of these guidelines will have any meaningful effect on these institutions or their borrowers.
Finally, the final rule makes some technical changes to FDIC's part 338 in order to make it applicable to State savings associations and provide for Equal Housing Lender posters to state the accurate CRC mailing address. As previously discussed, these changes are unlikely to pose significant effects for small State savings associations because they are already subject to substantively similar regulations.
Rescinding part 390, subpart G, also will serve to streamline the FDIC's rules and eliminate unnecessary, inconsistent, and duplicative regulations. The final rule generally provides for all small insured State nonmember banks and State savings associations to be subject to the same nondiscrimination requirements.
The FDIC does not have data with which to estimate the costs that State savings associations currently incur to comply with subpart G or how those costs will change pursuant to this final rule. However, since this final rule affects only 33 small entities, and since the differences between subpart G and existing regulation and law are modest, the FDIC certifies that this final rule will not have a significant economic effect on a substantial number of small entities.
Section 722 of the Gramm-Leach-Bliley Act
Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),
As previously stated, the final rule removes part 390, subpart G, from the Code of Federal Regulations because, after careful review and consideration, the FDIC believes it is largely unnecessary, redundant, or duplicative of existing statutes and regulations. In addition, the final also includes amendments to the FDIC's part 338 to make it applicable to State savings associations, introduce new definitions, and to make technical conforming edits. These amendments do not impose any additional reporting, disclosure, or other requirements on IDIs. Because the final rule does not impose additional reporting, disclosure, or other new requirements on IDIs, section 302 of the RCDRIA does not apply.
For purposes of the Congressional Review Act, the Office of Management and Budget (OMB) makes a determination as to whether a final rule constitutes a “major” rule. If a rule is deemed a “major rule”
The Congressional Review Act (CRA) defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign
The OMB has determined that this final rule is not a “major rule” for purposes of the CRA. As required by the Congressional Review Act, the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.
Aged, Banks, banking, Civil rights, Credit, Fair housing, Individuals with disabilities, Marital status discrimination, Mortgages, Religious discrimination, Reporting and recordkeeping requirements, Savings associations, Sex discrimination, Signs and symbols.
Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the preamble, the FDIC amends 12 CFR parts 338 and 390 as follows:
12 U.S.C. 1817, 1818, 1819, 1820(b), 2801
The purpose of this subpart is to prohibit FDIC-supervised institutions from engaging in discriminatory advertising with regard to residential real estate-related transactions. This subpart also requires FDIC-supervised institutions to publicly display either the Equal Housing Lender poster set forth in § 338.4(b) or the Equal Housing Opportunity poster prescribed by 24 CFR part 110 of the United States Department of Housing and Urban Development's regulations. This subpart enforces section 805 of title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-3619 (Fair Housing Act), as amended by the Fair Housing Amendments Act of 1988.
For purposes of this subpart:
(a)
(b)
(c)
(d)
(1) A physical or mental impairment which substantially limits one or more of such person's major life activities;
(2) A record of having such an impairment; or
(3) Being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
(e)
(1) A parent or another person having legal custody of such individual or individuals; or
(2) The designee of such parent or other person having such custody, with the written permission of such parent or other person; and
(3) The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.
(f)
(a) Any FDIC-supervised institution which directly or through third parties engages in any form of advertising of any loan for the purpose of purchasing, constructing, improving, repairing, or maintaining a dwelling or any loan secured by a dwelling shall prominently indicate in such advertisement, in a manner appropriate to the advertising medium and format utilized, that the FDIC-supervised institutions makes such loans without regard to race, color, religion, national origin, sex, handicap, or familial status.
(1) With respect to written and visual advertisements, this paragraph (a) may be satisfied by including in the advertisement a copy of the logotype with the Equal Housing Lender legend contained in the Equal Housing Lender poster prescribed in § 338.4(b) or a copy of the logotype with the Equal Housing Opportunity legend contained in the Equal Housing Opportunity poster prescribed in 24 CFR 110.25(a) of the United States Department of Housing and Urban Development's regulations.
(2) With respect to oral advertisements, this paragraph (a) may be satisfied by a statement, in the spoken text of the advertisement, that the FDIC-supervised institution is an “Equal Housing Lender” or an “Equal Opportunity Lender.”
(3) When an oral advertisement is used in conjunction with a written or visual advertisement, the use of either of the methods specified in paragraphs (a)(1) and (2) of this section will satisfy the requirements of this paragraph (a).
(b) No advertisement shall contain any words, symbols, models, or other forms of communication which express, imply, or suggest a discriminatory preference or policy of exclusion in violation of the provisions of the Fair Housing Act or the Equal Credit Opportunity Act.
(a) Each FDIC-supervised institution engaged in extending loans for the purpose of purchasing, constructing, improving, repairing, or maintaining a dwelling or any loan secured by a dwelling shall conspicuously display either the Equal Housing Lender poster set forth in paragraph (b) of this section or the Equal Housing Opportunity poster prescribed by 24 CFR 110.25(a) of the United States Department of Housing and Urban Development's regulations, in a central location within the FDIC-supervised institution where deposits are received or where such loans are made, in a manner clearly visible to the general public entering the area, where the poster is displayed.
(b) The Equal Housing Lender Poster shall be at least 11 by 14 inches in size and have the following text:
We Do Business in Accordance with Federal Fair Lending Laws.
UNDER THE FEDERAL FAIR HOUSING ACT, IT IS ILLEGAL, ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, RELIGION, SEX, HANDICAP, OR FAMILIAL STATUS (HAVING CHILDREN UNDER THE AGE OF 18) TO:
• Deny a loan for the purpose of purchasing, constructing, improving, repairing or maintaining a dwelling or to deny any loan secured by a dwelling; or
• Discriminate in fixing the amount, interest rate, duration, application procedures, or other terms or conditions of such a loan or in appraising property.
IF YOU BELIEVE YOU HAVE BEEN DISCRIMINATED AGAINST, YOU SHOULD SEND A COMPLAINT TO:
Assistant Secretary for Fair Housing and Equal Opportunity, Department of Housing and Urban Development, Washington, DC 20410.
For processing under the Federal Fair Housing Act
AND TO:
Federal Deposit Insurance Corporation, Consumer Response Center, [Insert address for the Consumer Response Center stated on the FDIC's website at
For processing under the FDIC Regulations.
UNDER THE EQUAL CREDIT OPPORTUNITY ACT, IT IS ILLEGAL TO DISCRIMINATE IN ANY CREDIT TRANSACTION:
• On the basis of race, color, national origin, religion, sex, marital status, or age;
• Because income is from public assistance; or
• Because a right has been exercised under the Consumer Credit Protection Act.
IF YOU BELIEVE YOU HAVE BEEN DISCRIMINATED AGAINST, YOU SHOULD SEND A COMPLAINT TO:
Federal Deposit Insurance Corporation, Consumer Response Center, [Insert address for the Consumer Response Center stated on the FDIC's website at
(c) The Equal Housing Lender Poster specified in this section was adopted under 24 CFR 110.25(b) of the United States Department of Housing and Urban Development's rules and regulations as an authorized substitution for the poster required in § 110.25(a) of those rules and regulations.
The purpose of this subpart is two-fold. First, this subpart notifies all FDIC-supervised institutions of their duty to collect and retain certain information about a home loan applicant's personal characteristics in accordance with 12 CFR part 1002 (Regulation B of the Bureau of Consumer Financial Protection) in order to monitor an institution's compliance with the Equal Credit Opportunity Act of 1974 (15 U.S.C. 1691
For purposes of this subpart—
(a)
(b)
(c)
(d)
All FDIC-supervised institutions that receive an application for credit primarily for the purchase or refinancing of a dwelling occupied or to be occupied by the applicant as a principal residence where the extension of credit will be secured by the dwelling shall request and retain the monitoring information required by Regulation B of the Bureau of Consumer Financial Protection (12 CFR part 1002).
FDIC-supervised institutions and other lenders required to file a Home Mortgage Disclosure Act loan/application register (LAR) with the Federal Deposit Insurance Corporation shall collect, record and report such LAR in accordance with Regulation C of the Bureau of Consumer Financial Protection (12 CFR part 1003).
Any bank which refers any applicants to a controlled entity and which purchases any covered loan as defined in Regulation C of the Bureau of Consumer Financial Protection (12 CFR part 1003) originated by the controlled entity, as a condition to transacting any business with the controlled entity, shall require the controlled entity to enter into a written agreement with the bank. The written agreement shall provide that the entity shall:
(a) Comply with the requirements of §§ 338.3, 338.4, and 338.7, and, if otherwise subject to Regulation C of the Bureau of Consumer Financial Protection (12 CFR part 1003), § 338.8;
(b) Open its books and records to examination by the Federal Deposit Insurance Corporation; and
(c) Comply with all instructions and orders issued by the Federal Deposit Insurance Corporation with respect to its home loan practices.
12 U.S.C. 1819.
Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; 78n; 78p; 78w.
By order of the Board of Directors.
Federal Deposit Insurance Corporation (FDIC).
Final rule.
The Federal Deposit Insurance Corporation (FDIC) is adopting a final rule (final rule) to rescind and remove certain regulations transferred to the FDIC from the Office of Thrift Supervision (OTS) in 2011 pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). These regulations generally concern the supervision and governance of State savings associations, including the application processing procedures for certain applications, notices and filings by State savings associations. In addition to the removal of our regulations, the FDIC is making technical changes to our regulations that do not currently apply to State savings associations. Following the rescission, the filing regulations pertaining to State savings associations and all other FDIC-supervised institutions will be substantially the same.
The final rule is effective March 5, 2021.
Donald Hamm, Special Advisor, (202) 898-3528,
The policy objective of the final rule is to remove unnecessary and duplicative regulations in order to simplify and improve the public's understanding of the FDIC's regulations, and to promote parity between State savings associations and State nonmember banks by applying the same filing requirements to both classes of institutions. Thus, as further detailed in this section, the FDIC is rescinding and removing, from the Code of Federal Regulations (CFR), 12 CFR part 390, subpart F (subpart F).
As discussed below, the FDIC is making technical changes to certain sections of part 303. The rescission of subpart F, with the accompanying revisions to 12 CFR part 303, simplifies and streamlines the FDIC's regulations by removing unnecessary provisions that are adequately provided for in other existing statutes and regulations.
The Dodd-Frank Act, signed into law on July 21, 2010, provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies.
Pursuant to section 316(c) of the Dodd-Frank Act,
Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act
As noted, on July 14, 2011, operating pursuant to this authority, the FDIC's Board of Directors issued a list of regulations of the former OTS that the FDIC would enforce with respect to State savings associations. On that same date, the FDIC Board reissued and re-designated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the
A subset of the regulations transferred to the FDIC from the OTS concern application processing procedures. The OTS regulations, formerly found at 12 CFR part 516, §§ 516.1 through 516.290, were transferred to the FDIC with only nomenclature changes and now comprise part 390, subpart F (subpart F). Subpart F governs the FDIC's procedures for processing applications, notices or filings under part 390 and, prior to its rescission, part 391 for State savings associations.
Section 316(b)(3) of the Dodd-Frank Act in pertinent part, provides that the regulations of the former OTS, as they apply to State savings associations, will be enforceable by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law.
On October 15, 2020, the FDIC published a notice of proposed rulemaking (NPR or proposal) regarding the removal of subpart F, which concerns the FDIC's procedures for processing applications, notices or filings under part 390 and, prior to its rescission, part 391 for State savings associations.
Rather than restate the rationale for rescission and removal of each section of subpart F, the reader is referred to the explanations for rescission and removal provided in the NPR,
Part 303 of the FDIC Rules and Regulations (12 CFR part 303) provides a framework for filing requirements for various applications, notices, and requests (collectively, “filings” as defined in § 303.2(s)) (12 CFR 303.2(s)). Subpart A of part 303, Rules of General Applicability, prescribes the general procedures for submitting filings to the FDIC that are required by statute or regulation. This subpart also prescribes the procedures to be followed by the FDIC, applicants, and interested parties during the process of considering a filing, including public notices and comment when required. This subpart explains the availability of expedited processing for eligible depository institutions (defined in § 303.2(r)) for matters subject to expedited processing. Specific filings are detailed in subpart B through subpart M of part 303.
The FDIC is making technical changes in certain sections of part 303, subparts A, K, and M. The revisions make those sections applicable on their terms to State savings associations.
Section 5 of the FDI Act,
Subpart F of part 390 of the FDIC regulations addresses public notice requirements, stating that §§ 390.111 through 390.115 apply whenever a FDIC regulation requires an applicant to follow the public notice procedures.
Section 303.7 of the FDIC regulations, of part 303, subpart A, addresses public notice requirements for filings with respect to mergers, changes in control, and requests for deposit insurance. With one exception, § 303.7 makes no distinction between banks and savings associations. However, § 303.7(c)(1)(i) states, in part: “[i]n the case of an application for deposit insurance for a de novo
The FDIC received no comments on these aspects of the proposal.
Pursuant to section 5 of the FDI Act, the FDIC may approve deposit insurance for certain depository institutions. One of the statutory requirements for a State bank to be eligible for Federal deposit insurance is that it must be “incorporated under the laws of any State.”
Section 303.15(b) further provides that, for purposes of the FDI Act and the FDIC regulations, the terms “stockholder,” “shareholder,” “director,” “officer,” “voting stock,” “voting shares,” and “voting securities,” for banks chartered as LLCs, shall encompass or have substantially the same meaning as those terms have for banks chartered as corporations. The definition of “State savings association” under the FDI Act, which uses the phrase “organized and operating according to the laws of the State” instead of “incorporated,” does not limit State savings associations to the corporate charter form (absent a state requirement).
The FDIC received no comments on these aspects of the proposal.
Part 303 of the FDIC's regulations includes procedures to implement the filing requirements for certain activities or transactions relative to undercapitalized or weaker depository institutions, and implements certain elements of section 38 of the FDI Act.
Sections 303.204 and 303.205 of the FDIC regulations implement the provisions of section 38 described above. Section 303.204 requires any insured State nonmember bank and any insured branch of a foreign bank that is undercapitalized or significantly undercapitalized, and any critically undercapitalized insured depository institution, to submit an application to engage in acquisitions, branching, or new lines of business. This section clarifies that new lines of business include “any new activity exercised which, although it may be permissible, has not been exercised by the institution.” It also specifies the content of the filing, including information regarding whether the institution's primary Federal regulator has accepted the institution's capital restoration plan, and whether the institution has implemented that plan.
Section 303.205 requires any insured State nonmember bank or insured branch of a foreign bank that is (i) significantly undercapitalized or critically undercapitalized, or (ii) is undercapitalized and has failed to submit or implement an acceptable capital restoration plan, to submit an application to pay a bonus or increase compensation to any senior executive officer. The section specifies the content of the filing, including information regarding the acceptance and implementation of the institution's capital restoration plan.
Although section 38 and other sections of subpart K of part 303 by their terms apply to all insured depository institutions, § 303.204, in part, and § 303.205 apply by their terms only to insured State nonmember banks and insured branches of foreign banks. The NPR proposed to revise §§ 303.204 and 303.205 to make those sections expressly apply to State savings associations to the same extent as they do to insured State nonmember banks. The final rule revises those sections to add “insured State savings associations.”
The FDIC received no comments on these aspects of the proposal.
Part 348
Under section 13(k) of the FDI Act, and notwithstanding any provision of State law, the FDIC may authorize dual service that would otherwise be prohibited by the Interlocks Act upon determining that severe financial conditions threaten the stability of a significant number of savings associations, or of savings associations possessing significant financial resources, and that such authorization would lessen the risk to the FDIC.
As discussed above, the FDIC transferred various OTS regulations into FDIC regulations. One of the transferred OTS regulations governed OTS oversight of management official interlocks in the context of State savings associations. The OTS regulation, formerly found at 12 CFR part 563f, was transferred to the FDIC with only minor, nonsubstantive changes, and was found in the FDIC's regulations at 12 CFR part 390, subpart V (part 390, subpart V), entitled “Management Official Interlocks.” Before the transfer of the OTS regulations and continuing today as noted above, the FDIC's regulations contained part 348. After review and comparison of part 390, subpart V, and part 348, effective January 20, 2016, the FDIC rescinded part 390, subpart V, because the FDIC found it to be substantially redundant to existing part 348, considering technical conforming edits to part 348.
However, § 303.249, found in part 303, subpart M, of the FDIC regulations, addresses the “procedures to be followed by an insured State nonmember
The FDIC received no comments on these aspects of the proposal.
For the reasons stated herein and in the NPR, the FDIC is adopting the amendments as proposed.
As of June 30, 2020, the FDIC supervised 3,270 depository
As previously discussed, the final rule rescinds part 390, subpart F, because most of its elements are duplicative of substantively similar provisions of FDIC regulations, principally part 303. Additionally, the final rule amends certain elements of part 303 so that the provisions are applicable to State savings associations. In doing so, the final rule makes elements of part 390, subpart F, substantively duplicative of the amended elements of part 303, and, therefore, unnecessary. As such, the FDIC does not believe the final rule will have substantive effects on State savings associations.
Section 390.100 sets forth application processing procedures for State savings associations. However, existing statutes
Section 390.101 specifies the criteria for determining which filings receive expedited treatment and which receive standard treatment. State savings associations are already subject to substantively similar requirements in §§ 303.2(r) and 303.11(c), as well as the substantive subparts of part 303 of the FDIC regulations. Therefore, rescinding § 390.101 is not expected to have any substantive effects on State savings associations.
Section 390.102 addresses the computation of time periods for State savings associations. State savings associations are subject to regulations that address the computation of relevant time periods at § 303.4 of the FDIC regulations. Therefore, rescinding § 390.102 is not expected to have any substantive effects on State savings associations.
Section 390.103 addresses pre-filing meetings and FDIC contacts for filings to acquire control of State savings associations. Pre-filing meetings are not addressed in FDIC regulations, but are addressed in the Applications Procedures Manual (APM), in which a substantively similar description of pre-filing meetings is given. Additionally, the APM states that a Case Manager will be assigned by the FDIC to the application in order to facilitate communication and engagement with the applicant. Therefore, the FDIC believes that rescinding § 390.103 is unlikely to have any substantive effects on State savings associations or change in control applicants.
Section 390.104 addresses certain requirements for business plans submitted by State savings associations under subpart F, which permits the FDIC to require additional business plan information during processing of the filing. Under part 303, business plans are required for certain filings, though the FDIC may request additional information for any filing. In this regard, the FDIC's review processes include, as appropriate, pre-filing and other activities to ensure institutions' understanding of the FDIC's filing requirements and information needs. In certain cases, the content for business plans is addressed in filing forms or other FDIC resources. For example, the Inter-agency Charter and Deposit Insurance Application Form contains detailed instructions for the development of the business plan; and those instructions may assist institutions when submitting business plans as part of other filings. The FDIC has also provided a Handbook for Organizers—Applying for Deposit Insurance, which aids all applicants for deposit insurance and includes sections on developing a business plan and business plan content. Generally, the FDIC believes it is appropriate to provide an institution with flexibility to tailor the content of the business plan to reflect its unique circumstances, strategies, and challenges. Therefore, in light of the discussion above, the FDIC believes that rescinding § 390.104 is unlikely to have any substantive effects on State savings associations or change in control applicants.
Section 390.105 addresses expedited and standard processing, as well as waiver requests for State savings associations. Expedited and standard processing, as well as waiver requirements, are encompassed in FDIC regulations applicable to State savings associations found throughout various subparts and sections of part 303. Therefore, the FDIC believes that rescinding § 390.105 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.106 addresses the content of filings for State savings associations. It directs State savings associations to the applicable forms and the content requirements. The required content of filings is encompassed in FDIC regulations applicable to State savings associations throughout various subparts and sections of part 303. Therefore, the FDIC believes that rescinding § 390.106 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.107 addresses application confidentiality for State savings associations. FDIC regulations found at § 303.8 and applicable to FDIC-supervised institutions, including State savings associations, includes confidential treatment regulations that are substantively similar to those in § 390.107. Therefore, the FDIC believes that rescinding § 390.107 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.108 addresses where to file applications, specifically providing regional office addresses. General application filing procedures for all FDIC-supervised institutions, including State savings associations, are encompassed in regulations found at § 303.3 of the FDIC regulations. Further, although specific regional office addresses are not included in the regulation, they are available on the FDIC's public website. Therefore, the FDIC believes that rescinding § 390.108 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.109 explains the application filing date. The FDIC does not have substantively similar regulations governing the filing date of an application. However, FDIC regulations operate on the basis of the date on which a substantially complete filing is submitted. Further, the FDIC's APM, which is accessible to all FDIC-supervised institutions, including State savings associations, addresses the date on which an application is considered to be substantively complete. Therefore, the FDIC believes that rescinding § 390.109 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.110 discusses amending or supplementing an application. The FDIC does not have substantively similar regulations governing amending or supplementing an application. However, the FDIC relies on determinations as to when an application is substantially complete. In addition, the FDIC's APM, which is applicable to all FDIC-supervised institutions, including State savings associations, addresses both substantially complete filings and those not substantially complete, as well as
Sections 390.111 through 390.115 address public notice requirements. FDIC-supervised institutions, including State savings associations, are subject to substantively similar public notice requirements in § 303.7 of the FDIC regulations and throughout various subparts and sections of part 303. Therefore, the FDIC believes that rescinding §§ 390.111 through 390.115 is unlikely to have any substantive effects on State savings associations or future applicants.
Sections 390.116 through 390.120 address procedures for submission of public comments. FDIC-supervised institutions, including State savings associations, are subject to substantively similar requirements regarding procedures for submission of public comments in § 303.9 of the FDIC regulations and throughout various subparts and sections of part 303. Therefore, the FDIC believes that rescinding §§ 390.116 through 390.120 is unlikely to have any substantive effects on State savings associations or future applicants.
Sections 390.121 through 390.125 contain meeting procedures. Meetings are addressed generally in FDIC regulations found at 12 CFR 303.6 and 303.10 for FDIC-supervised institutions, including State savings associations. Although §§ 303.6 and 303.10 of the FDIC regulations are generally less specific than §§ 390.121 through 390.125, the FDIC believes the language in § 303.6 is generally inclusive of the substance of §§ 390.121 through 390.125 by stating that “[t]he FDIC may examine or investigate and evaluate facts related to any filing under this chapter to the extent necessary to reach an informed decision and take any action necessary or appropriate under the circumstances.” Therefore, the FDIC believes that rescinding §§ 390.121 through 390.125 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.126 addresses expedited treatment, including removal of the filing to standard processing, additional information requests, suspension of the processing period, and when the applicant can proceed with the activity if the FDIC has not acted. FDIC-supervised institutions, including State savings associations, are subject to substantively similar requirements for matters receiving expedited treatment in § 303.11(c) of the FDIC regulations, as well as §§ 303.122 and 303.142. Sections 303.3 and 303.11(e), as well as substantive subparts of part 303, provide the FDIC authority to require submission of additional information. Therefore, the FDIC believes that rescinding § 390.126 is unlikely to have any substantive effects on State savings associations or future applicants.
Sections 390.127 and 390.128 address application completeness. The FDIC does not have corresponding regulations addressing application completeness. Instead, the application processing time periods under part 303 are triggered by the FDIC's receipt of a substantially complete filing.
Section 390.129 addresses eligibility examinations, as well as the authority of the FDIC to require such examinations and to request additional information. Under § 303.6 of the FDIC regulations, the FDIC may examine or investigate and evaluate facts related to any filing to the extent necessary to reach an informed decision and take any action necessary or appropriate under the circumstances. Sections 303.3 and 303.11(e), as well as substantive subparts of part 303, provide the FDIC authority to require submission of additional information. Therefore, the FDIC believes that a separate eligibility determination provision is unneeded, and rescinding § 390.129 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.130 addresses potential FDIC requests for additional information or actions from applicants. FDIC-supervised institutions, including State savings associations, are subject to substantively similar requirements regarding potential FDIC requests for additional information or actions from applicants through various subparts and sections of part 303. Therefore, the FDIC believes that rescinding § 390.130 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.131 explains requirements to publish new public notices. FDIC-supervised institutions, including State savings associations, are subject to substantively similar requirements regarding publishing new public notices in § 303.7(f) of the FDIC regulations. Therefore, the FDIC believes that rescinding § 390.131 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.132 addresses suspension of an application. Part 303 has no such provision. However, the FDIC believes that situations envisioned by § 390.132 can be effectively addressed on a case-by-case basis without need of a regulation, or that a regulation is not needed because the processing period under part 303 does not begin until the FDIC receives a substantially complete filing and, thus, no suspension is necessary. Therefore, the FDIC believes that rescinding § 390.132 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.133 addresses the applicable review period for an application. The FDIC's part 303 regulations contain provisions that bear on the same issues and are similar in substantive effect as the § 390.133 provisions. Thus, while part 303 addresses review periods in a different manner than subpart F, the FDIC believes that the substantive effect is similar and that rescinding § 390.133 is unlikely to have any substantive effects on State savings associations or future applicants.
Section 390.134 requires the FDIC to approve or deny an application before the expiration of the applicable review period, including any extensions, and notify the applicant, in writing, of its decision. If the FDIC does not act under paragraph (a)(1) of the section, the application is deemed approved. The FDIC's part 303 procedures do not contain such a requirement for applications (as opposed to some notice filings). However, when read in conjunction with § 390.133, the FDIC has significant, though not complete, discretion under subpart F to extend the
Section 390.135 addresses withdrawal if an application is not acted on within two calendar years. The FDIC does not have substantively similar regulations addressing withdrawal if an application is not acted on. However, the FDIC's APM, which aids all FDIC-supervised institutions, including State savings associations, states that the FDIC's goal is to act on filings as promptly as practical, while allowing appropriate time for review and evaluation. Additionally, the FDIC has established timeframes for processing each type of filing, which have been published in Financial Institution Letter 81-2018.
The final rule amends certain elements of part 303, specifically §§ 303.7(c)(1)(i) and 303.15(b)(1) through (4), so that the provisions are applicable to State savings associations. In so doing, the final rule makes elements of part 390, subpart F, substantively duplicative of the amended elements of part 303, and, therefore, unnecessary.
The final rule amends §§ 303.204 and 303.205 of part 303's subpart K (Prompt Corrective Action). Section 303.204 requires any insured State nonmember bank and any insured branch of a foreign bank that is undercapitalized or significantly undercapitalized, and any critically undercapitalized insured depository institution, to submit an application to engage in acquisitions, branching, or new lines of business. Section 303.205 requires any insured State nonmember bank or insured branch of a foreign bank that is (i) significantly undercapitalized or critically undercapitalized, or (ii) is undercapitalized and has failed to submit or implement an acceptable capital restoration plan, to submit an application to pay a bonus or increase compensation to any senior executive officer. The final rule makes these sections applicable to State savings associations. The provisions of section 38 of the FDI Act,
Section 303.249 of the FDIC regulations addresses the “procedures to be followed by an insured State nonmember bank to seek the approval of the FDIC to establish an interlock pursuant to” the Interlocks Act, section 13(k) of the FDI Act, and part 348 of the FDIC regulations. The final rule amends § 303.249(a) to apply to State savings associations. Although the amendment sets forth more explicit requirements for State savings associations seeking approval for establishing an interlock, State savings associations would not realize any effects because they are already subject to the Interlocks Act, and part 348. Therefore, State savings associations would currently need to undertake similar procedures, and provide substantively similar information, to those outlined in § 303.249.
By removing duplicative or unnecessary regulations, the FDIC believes that the final rule will benefit State savings associations by clarifying regulations and improving the ease of references.
The FDIC has considered alternatives to the rule, but believes the amendments represent the most appropriate option for covered institutions. As discussed previously, the Dodd-Frank Act transferred to the FDIC certain powers, duties, and functions formerly performed by the OTS. The FDIC's Board reissued and redesignated certain transferred regulations from the OTS, but noted that it would evaluate and might later, as appropriate, rescind, amend, or incorporate the regulations into other FDIC regulations.
The FDIC has evaluated the existing regulations related to application processing procedures. The FDIC considered the status quo alternative of retaining the current regulations, but believes it would be procedurally complex and unnecessary for FDIC-supervised institutions to continue to refer to the separate sets of regulations. Therefore, the FDIC is amending the specified sections of part 303 and rescinding subpart F.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The final rule rescinds and removes from FDIC regulations subpart F and makes technical revisions to certain sections of part 303. The final rule will not create any new or revise any existing collections of information under the PRA. Therefore, no information collection request will be submitted to the OMB for review.
The Regulatory Flexibility Act (RFA), requires that, in connection with a final rule, an agency prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of the final rule on small entities.
As of June 2020, the FDIC supervised 3,270 insured depository institutions, of which 2,492 are considered small banking organizations for the purposes of RFA. The final rule primarily affects regulations that govern State savings associations.
As previously discussed, the final rule rescinds part 390, subpart F, because most of its elements are duplicative of substantively similar provisions of FDIC regulations, specifically part 303. Additionally, the final rule amends §§ 303.7(c)(1)(i) and 303.15(b)(1) through (4) of part 303 so that the provisions are applicable to State savings associations. In doing so, the final rule makes elements of part 390, subpart F, substantively duplicative of the amended elements of part 303, and, therefore, unnecessary.
The final rule amends §§ 303.204 and 303.205 to make the provisions applicable to all insured depository institutions, including small, State savings associations. The revisions to §§ 303.204 and 303.205 provide a procedure for State savings associations to apply to the FDIC for relief from the restrictions of section 38 of the FDI Act.
Finally, the final rule amends § 303.249(a) to make the provisions applicable to all insured depository institutions, including small, State savings associations. The FDIC believes that the amendment will not have any substantive effects on small, State savings associations because it will not result in any substantive change in the procedures for, or content associated with seeking approval for establishing an interlock. Thus, the FDIC does not believe the final rule will substantially impact small, FDIC-supervised institutions or future applicants.
The FDIC received no comments on the information provided in the Regulatory Flexibility Act section of the NPR.
Based on the information above, the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule.
The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The OMB has determined that the final rule is not a major rule for purposes of the Congressional Review Act and the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.
Section 722 of the Gramm-Leach-Bliley Act
Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA),
As previously stated, the final rule removes subpart F from the Code of Federal Regulations because, after careful review and consideration, the FDIC believes it is largely unnecessary in light of the applicability of other provisions of Federal statutes and regulations, specifically 12 CFR part 303 (part 303) or guidance that produce substantially the same supervisory results. In addition, the final rule also includes amendments to certain sections of part 303, subparts A, K, and M, of the FDIC's regulations make those sections applicable by their terms to State savings associations. Those amendments do not impose any additional reporting, disclosure, or other requirements on IDIs. Because the final rule does not impose additional reporting, disclosure, or other new requirements on IDIs, section 302 of the RCDRIA does not apply.
Administrative practice and procedure, Bank deposit insurance, Banks, banking, Reporting and recordkeeping requirements, Savings associations.
Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the preamble, the Federal Deposit Insurance Corporation amends 12 CFR parts 303 and 390 as follows:
12 U.S.C. 378, 1463, 1467a, 1813, 1815, 1817, 1818, 1819(a) (Seventh and Tenth), 1820, 1823, 1828, 1831i, 1831e, 1831o, 1831p-1, 1831w, 1831z, 1835a, 1843(l), 3104, 3105, 3108, 3207, 5412; 15 U.S.C. 1601-1607.
(c) * * *
(1) The public notice referred to in paragraph (a) of this section shall consist of the following:
(i) In the case of an application for deposit insurance for a de novo depository institution, include the names of all organizers or incorporators. In the case of an application to establish a branch, include the location of the proposed branch or, in the case of an application to relocate a branch or main office, include the current and proposed address of the office. In the case of a merger application, include the names of all parties to the transaction. In the case of a notice of acquisition of control, include the name(s) of the acquiring parties. In the case of an application to relocate an insured branch of a foreign bank, include the current and proposed address of the branch.
(ii) Type of filing being made;
(iii) Name of the depository institution(s) that is the subject matter of the filing;
(iv) That the public may submit comments to the appropriate FDIC regional director;
(v) The address of the appropriate FDIC office where comments may be sent (the same location where the filing will be made);
(vi) The closing date of the public comment period as specified in the appropriate subpart of this part; and
(vii) That the nonconfidential portions of the application are on file in the appropriate FDIC office and are available for public inspection during regular business hours; photocopies of the nonconfidential portion of the application file will be made available upon request.
(b) For purposes of the Federal Deposit Insurance Act and this chapter:
(1) Each of the terms “stockholder” and “shareholder” includes an owner of any interest in a depository institution chartered as an LLC, including a member or participant;
(2) The term “director” includes a manager or director of a depository institution chartered as an LLC, or other person who has, with respect to such a depository institution, authority substantially similar to that of a director of a corporation;
(3) The term “officer” includes an officer of a depository institution chartered as an LLC, or other person who has, with respect to such a depository institution, authority substantially similar to that of an officer of a corporation; and
(4) Each of the terms “voting stock,” “voting shares,” and “voting securities” includes ownership interests in a depository institution chartered as an LLC, as well as any certificates or other evidence of such ownership interests.
(a)
(2) A new line of business will include any new activity exercised which, although it may be permissible, has not been exercised by the institution.
(b)
(a)
(a)
12 U.S.C. 1819.
Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; 78n; 78p; 78w.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Final rule.
The Federal Deposit Insurance Corporation (FDIC) is adopting a final rule to rescind and remove rules from the Code of Federal Regulations (CFR) regulations titled
The final rule is effective on March 5, 2021.
Donald Hamm, Special Advisor, (202) 898-3528,
The policy objective of the final rule is to simplify the FDIC's regulations by removing unnecessary regulations and realigning existing regulations in order to improve the public's understanding of the rules and to improve the ease of the public's reference to them. Thus, as further detailed in this section, the FDIC is rescinding and removing from the CFR rules entitled
Subpart O includes definitions related to State savings association subsidiaries,
The FDIC has determined that the requirements for State savings association subordinate organizations set forth in subpart O are substantially similar to requirements of section 28 of the FDI Act and its implementing regulations, 12 CFR part 362 of the FDIC's Rules and Regulations; and section 37 of the FDI Act.
The Dodd-Frank Act,
Pursuant to section 316(c) of the Dodd-Frank Act,
Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act
As noted, on July 14, 2011, operating pursuant to this authority, the FDIC's Board of Directors reissued and re-designated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the
The final rule adopts, without change, the notice of proposed rulemaking (NPR) published in the
On October 26, 2020, the FDIC published an NPR regarding the removal of part 390, subpart O (formerly OTS's 12 CFR part 559),
The NPR proposed removing subpart O, because, after careful review and consideration, the FDIC believes it is duplicative of substantially similar FDIC statutory and regulatory provisions that produce the same supervisory result for an insured State savings association as subpart O.
Section 28 of the FDI Act prohibits a State savings association from engaging as principal in any type of activity, or in any activity in an amount, that is not permissible for a Federal savings association unless the FDIC has determined the activity would pose no significant risk to the Deposit Insurance Fund (DIF); and the State savings association is, and continues to be, in compliance with the capital standards set forth in section 5(t) of the Home Owners Loan Act (HOLA).
The NPR proposed using 12 CFR part 362,
Subpart C of part 362 governs the activities of insured State savings associations and implements section 28(a) of the FDI Act, which restricts and prohibits insured State savings associations and their service corporations from engaging in activities and investments of a type that are not permissible for a Federal savings association and their service corporations. Subpart D of part 362 governs acquiring, establishing, or conducting new activities through a subsidiary by an insured State savings association, and implements section 18(m) of the FDI Act, which requires that prior notice be given to the FDIC when an insured savings association establishes or acquires a subsidiary or engages in any new activity in a subsidiary. In doing so it applies the definitions of § 362.2 unless otherwise indicated. The phrase “activity permissible for a Federal savings association” means any activity authorized for a Federal savings association under any statute including HOLA,
Rather than restate the rationale for the rescission and removal of each section of subpart O, the reader is referred to the fulsome explanations for the rescission and removal provided in the NPR,
Section 390.251 is a definition section related to subordinate organizations. Included in the definitions section are:
The definition of
A separate definition for
The core eligibility requirements in § 362.4(c) describe corporate separateness in the context of the State-chartered depository institution-subsidiary. The eligible subsidiary requirements in § 362.4(c)(2)—which are more detailed than eligible subsidiary requirements of § 390.252—are designed specifically for the bank/subsidiary relationship, and provide for separation between the State-chartered depository institution and its subsidiary to lessen the possibility of piercing the corporate veil; deduction of the State-chartered depository institution investment in the subsidiary to segregate the capital supporting the State-chartered depository institution from the capital supporting the subsidiary; and limitations on the State-chartered depository institution's investment in the subsidiary and on transactions with the subsidiary to ensure transactions are arms-length.
The provisions of § 362.4(c)(2) that are duplicative of § 390.252 require that an eligible subsidiary: (1) Meet applicable statutory or regulatory capital requirements and have sufficient operating capital for normal obligations that are reasonably foreseeable for a business of its size and character; (2) be physically separate and distinct in its operations from the operations of the state-chartered depository institution; (3) maintain separate accounting and other business records; (4) observe separate business entity formalities; (5) conduct business pursuant to independent policies and procedures designed to inform customers and prospective customers of the subsidiary that the subsidiary is a separate organization from the State-chartered depository institution; and (6) that the State-chartered depository institution is not responsible for, and does not guarantee, the obligations of the subsidiary.
State savings associations and service corporations that qualify as eligible depository institutions and eligible subsidiaries pursuant to § 362.4(c) maintain separate corporate identities, which should sufficiently insulate State savings associations from the liabilities of subsidiaries.
This section provides that such a notice must contain all of the information required under § 362.15, is subject to FDIC objection, and must be filed at least 30 days prior to the establishment or acquisition of a subsidiary or commencement of a new activity through a subsidiary. The notice requirements of § 362.15 are substantially similar to the transferred OTS notice requirement in § 390.253.
The proposal included a technical amendment to remove references to Federal savings association notice requirements in § 362.15. Section 18(m) of the FDI Act, as amended by section 363(7) of the Dodd-Frank Act,
State savings association subsidiaries are permitted to issue securities pursuant to section 28 of the FDI Act because the operating subsidiaries and service corporations of Federal savings associations are permitted to issue securities, subject to regulatory limitations. State savings associations and their subsidiaries are reminded that subsidiary issuances, like other permissible activities, are subject to the same restrictions or conditions imposed on the Federal savings association and must be conducted in the same manner in which an operating subsidiary or service corporation is authorized to issue such securities.
Accordingly, a State savings association subsidiary should not state or imply that the securities it issues are covered by Federal deposit insurance, or issue any security the payment, maturity, or redemption of which may be accelerated upon the condition that
In the NPR, staff proposed that State savings associations apply to the FDIC for prior approval pursuant to § 362.11 before making a contribution or a loan to a lower-tier entity (salvage investment) that exceeds the maximum amount otherwise permitted under law or regulation to exercise its power to salvage the underlying asset to be consistent with State law. The applicant would be required to provide evidence that the State approved any exception over the loans to one borrower (LTOB) limit.
As discussed in the NPR, these FDIC statutory and regulatory provisions provide a substantially similar process for an insured State savings association, or its subsidiary, to apply for prior consent from the FDIC to engage in certain activities, that are not otherwise prohibited by Federal or State law, while reaching substantially the same result as provided in subpart O without the burden of referring to a duplicative set of regulations.
The FDIC issued the NPR with a 30-day comment period, which closed on November 25, 2020.
The final rule rescinds and removes subpart O and amends § 362.15 to remove references to Federal savings associations made unnecessary because of the amendment of Section 18(m) of the FDI Act, as amended by section 363(7) of the Dodd-Frank Act which no longer requires Federal savings associations to provide notice to the FDIC prior to the establishment, or acquisition, of a subsidiary, or prior to commencement of a new activity in a subsidiary controlled by a Federal savings association.
As discussed in the NPR, the FDIC statutory and regulatory provisions applicable to State savings associations and their subsidiaries provide a substantially similar process for an insured State savings association, or its subsidiary, to apply for prior consent from the FDIC to engage in certain activities, that are not otherwise prohibited by Federal or State law, while reaching substantially the same result as provided in subpart O without the burden of referring to a duplicative set of regulations.
As of June 30, 2020, the FDIC supervised 3,270 depository institutions, of which 35 (1.1 percent) are State savings associations.
The FDIC considered alternatives to the final rule but believes that the amendments represent the most appropriate option for covered institutions. As discussed previously, the Dodd-Frank Act transferred certain powers, duties, and functions formerly performed by the OTS to the FDIC. The FDIC's Board reissued and redesignated certain transferred regulations from the OTS, but noted that it would evaluate them and might later incorporate them into other FDIC regulations, amend them, or rescind them, as appropriate. The FDIC has evaluated the existing regulations relating to certain subordinate organizations of State savings associations. The FDIC considered the alternative of retaining the current regulations, but did not choose to do so because it would be needlessly complex and confusing for its supervised institutions to continue to have substantively similar regulations regarding subordinate organizations of State savings associations located in different locations within the CFR. The FDIC believes it would be unnecessarily burdensome for FDIC-supervised institutions to refer to these separate sets of regulations, and, therefore, is rescinding and removing subpart O and
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The final rule rescinds and removes from part 390, subpart O, and makes a technical amendment to § 362.15 to remove references to Federal savings associations to streamline the FDIC's regulations. The final rule will not create any new or revise any existing collections of information under the PRA. Therefore, no information collection request will be submitted to the OMB for review.
The Regulatory Flexibility Act (RFA), requires that, in connection with a final rule, an agency prepare a final regulatory flexibility analysis that describes the impact of a proposed rule on small entities.
As of June 30, 2020, the FDIC supervised 3,270 insured depository institutions, of which 2,548 are considered small banking organizations for the purposes of RFA. The rule primarily affects regulations that govern State savings associations.
As previously discussed, the rule rescinds part 390, subpart O, because most of its elements are duplicative of, or substantially similar to the requirements of section 28 of the FDI Act and its implementing regulations, 12 CFR part 362 of the FDIC's Rules and Regulations; and section 37 of the FDI Act.
Additionally, the rule would amend certain sections of part 362 to remove the references to Federal savings association notice requirements because Federal savings associations are no longer required to provide notice to the FDIC prior to the establishment, or acquisition, of a subsidiary, or prior to commencement of a new activity in a subsidiary controlled by a Federal savings association.
Section 390.250 sets forth the FDIC's general rulemaking and supervisory authority under the FDI Act, its specific authority under section 18(m) of the FDI Act
Section 390.251 is a definition section related to subordinate organizations. As previously discussed, the FDIC believes that the definitions of
Section 390.252 requires State savings associations and their subordinate organizations to operate in a manner that demonstrates to the public that they are separate corporate entities because of concerns that a failure to maintain separate corporate existences could potentially result in a court, for equitable reasons, holding the savings association liable for the obligations of the subordinate organization.
Section 390.253 establishes notification requirements for State savings associations prior to their establishing, acquiring or engaging in new activities of a subsidiary as required under section 18(m) of the FDI Act.
Section 362.15 established notification requirements for State and Federal savings associations prior to their establishing or acquiring a subsidiary, or conducting any new activity through a subsidiary. As discussed previously, after the Dodd Frank Act amendment of section 18(m) of the FDI Act, Federal savings associations are no longer required to provide notice to the FDIC prior to the establishment, or acquisition, of a subsidiary, or prior to the commencement of a new activity in a subsidiary controlled by a Federal savings association.
Section 390.254 permits a State savings association subsidiary to issue, either directly or through a third party intermediary, any securities that its parent State savings association is permitted to issue. As discussed previously, although there is no corollary regulation for FDIC-supervised depository institutions, State savings association subsidiaries are permitted to issue securities pursuant to section 28 of the FDI Act because the operating subsidiaries and service corporations of Federal savings associations are permitted to issue securities, subject to regulatory limitations. Therefore, the FDIC believes that the rescission of § 390.254, if adopted, is unlikely to have any substantive effect on small State savings associations or their subsidiaries.
Section 390.255 generally permits a State savings association to notify the FDIC at least 30 days before making a contribution or a loan (including a guarantee of a loan made by any other person) to a lower-tier entity (salvage investment) that exceeds the maximum amount otherwise permitted under law or regulation to exercise its power to salvage the underlying asset (typically, an outstanding loan).
By removing duplicative or unnecessary regulations, the FDIC believes that the rule will benefit small State savings associations by clarifying regulations and improving the ease of references.
For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule. If a rule is deemed a major rule by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication.
The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in: (A) An annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The OMB has determined that the final rule is not a major rule for purposes of the Congressional Review Act and the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.
Section 722 of the Gramm-Leach-Bliley Act
Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA), in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), each Federal banking agency must consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, section 302(b) of RCDRIA requires new regulations and amendments to
Because the final rule does not impose additional reporting, disclosure, or other requirements on IDIs, section 302 of RCDRIA does not apply.
Administrative practice and procedure, Authority delegations (Government agencies), Bank deposit insurance, Banks, Banking, Investments, Reporting and recordkeeping requirements.
Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the preamble, the Federal Deposit Insurance Corporation amends 12 CFR parts 362 and 390 as follows:
12 U.S.C. 1816, 1818, 1819(a)(Tenth), 1828(j), 1828(m), 1828a, 1831a, 1831e, 1831w, 1843(l).
No state insured savings association may establish or acquire a subsidiary, or conduct any new activity through a subsidiary, unless it files a notice in compliance with § 303.142(c) of this chapter at least 30 days prior to establishment of the subsidiary or commencement of the activity and the FDIC does not object to the notice. This section does not apply to any state savings association that acquired its principal assets from a Federal savings bank that was chartered prior to October 15, 1982, as a savings bank under state law.
12 U.S.C. 1819.
Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; 78n; 78p; 78w.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Final rule.
The Federal Deposit Insurance Corporation (FDIC) is adopting a final rule to rescind and remove from the Code of Federal Regulations rules entitled “Prompt Corrective Action” that were transferred to the FDIC from the Office of Thrift Supervision (OTS) on July 21, 2011, in connection with the implementation of Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and amend certain sections of existing FDIC regulations governing the issuance and review of orders pursuant to the prompt corrective action provisions of the Federal Deposit Insurance Act to make it clear that such rules apply to all insured depository institutions for which the FDIC is the appropriate Federal banking agency.
The final rule is effective on March 5, 2021.
Robert Watkins, Review Examiner,
The policy objective of the rule is to remove unnecessary and duplicative regulations in order to simplify them and improve the public's understanding of them. Part 390, subpart Y, outlines administrative procedures related to prompt corrective action that are equivalent to procedures outlined in part 308, subpart Q, of the FDIC's existing regulations. Thus, the FDIC is rescinding the regulations in part 390, subpart Y, and reserving the subpart for future use. In addition, the FDIC is amending certain sections of part 308, subpart Q, of the FDIC's existing regulations on the issuance and review of orders pursuant to the prompt corrective action provisions of the Federal Deposit Insurance Act to make it clear that part 308, subpart Q, applies to all insured depository institutions for which the FDIC is the appropriate Federal banking agency.
Part 390, subpart Y, was included in the regulations that were transferred to the FDIC from the Office of Thrift Supervision (OTS) on July 21, 2011, in connection with the implementation of applicable provisions of title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).
As of July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act,
Pursuant to section 316(c) of the Dodd-Frank Act,
Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act
As noted above, on June 14, 2011, operating pursuant to this authority, the Board issued a list of regulations of the former OTS that the FDIC would enforce with respect to State savings associations. On that same date, the Board reissued and redesignated certain regulations transferred from the former OTS. These transferred OTS regulations were published as new FDIC regulations in the
A subset of the regulations transferred to the FDIC from the OTS concerns prompt corrective action provisions applicable to State savings associations. The OTS regulations, formerly found at 12 CFR part 565, §§ 565.7, 565.8, 565.9 and 565.10, were transferred to the FDIC with only nomenclature changes and now comprise part 390, subpart Y. Each provision of part 390, subpart Y, is discussed in Part III of this
On September 28, 2020, the FDIC published a notice of proposed rulemaking (NPR) regarding the removal of part 390, subpart Y (formerly OTS 12 CFR part 565, §§ 565.7, 565.8, 565.9 and 565.10), which addressed prompt corrective action provisions applicable to State savings associations.
Consistent with its legal authority to issue and modify regulations as the appropriate Federal banking agency under section 3(q) of the Federal Deposit Insurance Act, the FDIC also proposed to amend and revise provisions of part 308, subpart Q, to clarify and state explicitly the regulations apply to all FDIC-supervised institutions.
Section 390.456 describes the administrative procedures for the FDIC to issue a directive to take prompt corrective action against a State savings association. These administrative procedures were initially found at 12 CFR 565.7 and are equivalent to the administrative procedures relating to FDIC-supervised banks found at 12 CFR 308.201.
The FDIC proposed that § 390.456 be rescinded in its entirety. The amendments to subpart Q will clarify in a single location that the regulations apply to all FDIC-supervised institutions. Therefore, it is not necessary to have a regulation specifically applicable to State savings associations.
Section 390.457 describes the administrative procedures to reclassify a State savings association based on criteria other than capital. This section describes how the FDIC may consider other unsafe or unsound practices to lower a State saving association's capital category under part 324. The section also details the procedures for notifying the State saving association and contesting the determination. These administrative procedures were initially found at 12 CFR 565.8 and were recently modified to account for
The FDIC proposed that § 390.457 be rescinded in its entirety. The amendments to subpart Q will clarify in a single location that the regulations apply to all FDIC-supervised institutions. Therefore, it is not necessary to have a regulation specifically applicable to State savings associations.
Section 390.458 describes the additional administrative procedures related to prompt corrective action directives that require the State savings association to terminate the employment of a director or officer. This section also includes provisions to challenge this type of prompt corrective order directive. These administrative procedures were initially found at 12 CFR 565.9. Section 390.458 is equivalent to the administrative procedures relating to FDIC-supervised banks found at 12 CFR 308.203.
The FDIC proposed that § 390.458 be rescinded in its entirety. The amendments to subpart Q will clarify in a single location that the regulations apply to all FDIC-supervised institutions. Therefore, it is not necessary to have a regulation specifically applicable to State savings associations
Section 390.459 describes the additional remedies the FDIC may take to seek compliance with prompt corrective action directives. These procedures were initially found at 12 CFR 565.10. Section 390.459 is equivalent to the administrative procedures relating to FDIC-supervised banks found at 12 CFR 308.204.
The FDIC proposed that § 390.459 be rescinded in its entirety. The amendments to subpart Q will clarify in a single location that the regulations apply to all FDIC-supervised institutions. Therefore, it is not necessary to have a regulation specifically applicable to State savings associations.
As discussed in part III of this
Additionally, the FDIC proposed one additional change to conform the FDIC's regulations relating to prompt corrective action directives that apply to banks and the former OTS regulations relating to State savings associations. Sections 308.202 and 390.457 describe the procedures relating to classifying an institution due to something other than capital. These two regulations differ in one respect. The FDIC regulation at § 308.202(a)(6) provides that when a hearing is ordered, it will begin no later than 30 days from the date of the request unless the bank requests a later date. The former OTS version of this regulation, incorporated by the FDIC at § 390.457, provides that the hearing should be ordered within 30 days of request unless the FDIC allows further time at the request of the State savings association. While both of these provisions demonstrate that a hearing is likely to be delayed at the request of the institution, the former OTS version of the regulation is written with greater clarity that the FDIC will evaluate and may then provide consent to the request. The OTS version of the regulation makes it clear that there is no automatic extension granted to the institution. The greater clarity in this language makes it the preferred choice when reconciling the two regulations into one regulation that applies to all FDIC-supervised institutions. The changes to this aspect of the regulation will provide greater clarity to those institutions going forward.
The FDIC issued the NPR with a 30-day comment period, which closed on October 28, 2020. The FDIC received no comments on its NPR, and consequently the FDIC is adopting the amendments as proposed.
As discussed in the NPR, the requirements for State savings associations in part 390, subpart Y, are largely unnecessary, redundant, or duplicative of existing FDIC regulations. To that effect, the Final Rule removes and rescinds 12 CFR part 390, subpart Y, and amends the FDIC's requirements of part 308, subpart Q to expressly apply to all FDIC-supervised insured depository institutions. These initiatives will serve to streamline the FDIC's regulations.
As explained in detail in Section III of this
As explained previously, the rule would rescind 12 CFR part 390, subpart Y, which includes the following: § 390.456, which outlines administrative procedures for issuing a directive to take prompt corrective action against a State savings association; § 390.457, which outlines administrative procedures for reclassifying a State savings association based on criteria other than capital; § 390.458, which outlines administrative procedures related to prompt corrective action that require a State savings association to terminate the employment of a director or officer; and § 390.459, which outlines administrative procedures the FDIC may take to seek compliance with prompt corrective action directives. The FDIC has determined that these sections of 12 CFR part 390 are equivalent to regulations related to prompt corrective action in the FDIC's existing regulations. Therefore, the FDIC does not expect the removal of the regulations in subpart Y
The final rule would also amend the FDIC's regulations that establish administrative procedures for prompt corrective action in 12 CFR 308.200 through 308.204 to make them applicable to all FDIC-supervised institutions, including State savings associations. As discussed previously, these changes would not change the required procedures related to prompt corrective action that are applicable to State savings associations since the requirements in subpart Y are equivalent to requirements in the FDIC's existing regulations; therefore this aspect of the rule is unlikely to substantively affect FDIC-supervised State savings associations.
Finally, the rule revises 12 CFR 308.202 to clarify the procedures for delaying a hearing if an institution is reclassified based on criteria other than capital. The FDIC's regulation currently states that if a hearing is scheduled, it will be held within 30 days of the request unless the institution requests a later date. The regulations in § 390.457 state that a hearing will be held within 30 days of the request unless the FDIC allows further time at the request of the institution. The FDIC is adopting the language from § 390.457 in its own regulations since § 390.457 clarifies that requests for an extension will not be automatically granted. This aspect of the rule will pose no change for the 35 FDIC-supervised State savings associations. The FDIC believes that adopting the language from § 390.457 should further clarify for State nonmember institutions that requests for an extension will not automatically be granted, however, this change is unlikely to pose any substantive effects on State nonmember institutions.
Since the prompt corrective action directive provisions in part 390, subpart Y, are substantively similar to existing regulations for state nonmember banks found in part 308, subpart Q, the FDIC does not believe that rescission of §§ 390.456 through 390.459 would have any substantive effects on FDIC-supervised State savings associations.
The FDIC believes that the amendments represent the most appropriate option for covered institutions and, at this time, has not identified significant alternatives to the rule in its current form. As discussed previously, the Dodd-Frank Act transferred certain powers, duties, and functions formerly performed by the OTS to the FDIC. The FDIC's Board reissued and redesignated certain transferred regulations from the OTS but noted that it would evaluate them and might later incorporate them into other FDIC regulations, amend them, or rescind them, as appropriate. The FDIC has evaluated the existing regulations relating to prompt corrective actions, including part 308, subpart Q, and part 390, subpart Y. The FDIC has available the status quo alternative of retaining the current regulations but is not choosing to do so because it would be needlessly duplicative for substantively similar regulations regarding prompt corrective action directives for banks and State savings associations to be located in different locations within the Code of Federal Regulations. The FDIC believes it would be redundant and potentially confusing for FDIC-supervised institutions to continue to refer to these separate sets of regulations and is therefore amending and streamlining them in accordance with this final rulemaking.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA),
The final rule rescinds and removes from FDIC regulations part 390, subpart Y. With regard to part 308, subpart Q, the final rule amends §§ 308.200 through 308.204 to clarify that State savings associations, as well as State nonmember banks and foreign banks having insured branches are all subject to part 308, subpart Q. The final rule will not create any new or revise any existing collections of information under the PRA. Therefore, no information collection request will be submitted to the OMB for review.
The Regulatory Flexibility Act (RFA), requires that, in connection with a notice of final rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of the final rule on small entities.
As of June 30, 2020, the FDIC supervised 3,270 depository institutions,
The final rule also amends the FDIC's regulations that establish administrative procedures for prompt corrective action in 12 CFR 308.200 through 308.204 to make them applicable to all FDIC-supervised institutions, including State savings associations. As discussed previously, these changes would not change the required procedures related to prompt corrective action that are applicable to small State savings associations since the requirements in subpart Y are equivalent to requirements in the FDIC's existing regulations.
Finally, the rule revises 12 CFR 308.202 to clarify the procedures for delaying a hearing if an institution is reclassified based on criteria other than capital. The FDIC's regulation currently states that if a hearing is scheduled, it will be held within 30 days of the request unless the institution requests a later date. The regulations in § 390.457 state that a hearing will be held within 30 days of the request unless the FDIC allows further time at the request of the institution. The FDIC is adopting the language from § 390.457 in its own regulations since § 390.457 clarifies that requests for an extension will not be automatically granted. This aspect of the rule will pose no change for the 33 small FDIC-supervised State savings associations. The FDIC believes that adopting the language from § 390.457 should further clarify for small State nonmember institutions that requests for an extension will not automatically be granted; however, this change is unlikely to pose any substantive effects on small State nonmember institutions.
Since the prompt corrective action directive provisions in part 390, subpart Y, are substantively similar to existing regulations for state nonmember banks found in part 308, subpart Q, the FDIC believes it is unlikely that that rescission of §§ 390.456 through 390.459 would have any substantive effects on small FDIC-supervised State savings associations.
Based on the information above, the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major rule.”
The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The OMB has determined that the final rule is not a major rule for purposes of the Congressional Review Act and the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.
Section 722 of the Gramm-Leach-Bliley Act
Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.
Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),
Administrative practice and procedure, Bank deposit insurance, Banks, Banking, Claims, Crime, Equal access to justice, Fraud, Investigations, Lawyers, Penalties.
Administrative practice and procedure, Advertising, Aged, Civil rights, Conflict of interests, Credit, Crime, Equal employment opportunity, Fair housing, Government employees, Individuals with disabilities, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the preamble, the Federal Deposit Insurance Corporation amends parts 308 and 390
5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1829(b), 1831i, 1831m(g)(4), 1831
The rules and procedures set forth in this subpart apply to FDIC-supervised institutions and senior executive officers and directors of the same that are subject to the provisions of section 38 of the Federal Deposit Insurance Act (section 38) (12 U.S.C. 1831o) and subpart H of part 324 of this chapter. For purposes of this subpart, the term “FDIC-supervised institution” means any insured depository institution for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(q).
(a)
(2)
(b)
(1) A statement of the FDIC-supervised institution's capital measures and capital levels;
(2) A description of the restrictions, prohibitions, or affirmative actions that the FDIC proposes to impose or require;
(3) The proposed date when such restrictions or prohibitions would be effective or the proposed date for completion of such affirmative actions; and
(4) The date by which the FDIC-supervised institution subject to the directive may file with the FDIC a written response to the notice.
(c)
(2)
(i) An explanation why the action proposed by the FDIC is not an appropriate exercise of discretion under section 38;
(ii) Any recommended modification of the proposed directive; and
(iii) Any other relevant information, mitigating circumstances, documentation, or other evidence in support of the position of the FDIC-supervised institution regarding the proposed directive.
(d)
(1) Issue the directive as proposed or in modified form;
(2) Determine not to issue the directive and so notify the FDIC-supervised institution; or
(3) Seek additional information or clarification of the response from the FDIC-supervised institution or any other relevant source.
(e)
(f)
(a)
(
(
(B) Any action pursuant to this paragraph (a)(1)(i) shall be referred to in this section as
(ii)
(2)
(i) A statement of the FDIC-supervised institution's capital measures and capital levels and the category to which the FDIC-supervised institution would be reclassified;
(ii) The reasons for reclassification of the FDIC-supervised institution; and
(iii) The date by which the FDIC-supervised institution subject to the notice of reclassification may file with the FDIC a written appeal of the proposed reclassification and a request for a hearing, which shall be at least 14 calendar days from the date of service of the notice unless the FDIC determines that a shorter period is appropriate in light of the financial condition of the FDIC-supervised institution or other relevant circumstances.
(3)
(i) An explanation of why the FDIC-supervised institution is not in an unsafe or unsound condition or otherwise should not be reclassified; and
(ii) Any other relevant information, mitigating circumstances, documentation, or other evidence in support of the position of the FDIC-supervised institution regarding the reclassification.
(4)
(5)
(6)
(7)
(ii) The informal hearing shall be recorded, and a transcript shall be furnished to the FDIC-supervised institution upon request and payment of the cost thereof. Witnesses need not be sworn, unless specifically requested by a party or the presiding officer(s). The presiding officer(s) may ask questions of any witness.
(iii) The presiding officer(s) may order that the hearing be continued for a reasonable period (normally five business days) following completion of oral testimony or argument to allow additional written submissions to the hearing record.
(8)
(9)
(b)
(a)
(b)
(2)
(3)
(c)
(d)
(2) The informal hearing shall be recorded, and a transcript shall be furnished to the Respondent upon request and payment of the cost thereof. Witnesses need not be sworn, unless specifically requested by a party or the presiding officer(s). The presiding officer(s) may ask questions of any witness.
(3) The presiding officer(s) may order that the hearing be continued for a reasonable period (normally five business days) following completion of oral testimony or argument to allow additional written submissions to the hearing record.
(e)
(1) To become adequately capitalized, to the extent that the directive was issued as a result of the FDIC-supervised institution's capital level or failure to submit or implement a capital restoration plan; and
(2) To correct the unsafe or unsound condition or unsafe or unsound practice, to the extent that the directive was issued as a result of classification of the FDIC-supervised institution based on supervisory criteria other than capital, pursuant to section 38(g) of the FDI Act.
(f)
(g)
(a)
(b)
(2)
(c)
12 U.S.C. 1819.
Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.
Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; 78n; 78p; 78w.
By order of the Board of Directors.