International Trade Administration
National Oceanic and Atmospheric Administration
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Children and Families Administration
Inspector General Office, Health and Human Services Department
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
National Park Service
Drug Enforcement Administration
Executive Office for Immigration Review
Employee Benefits Security Administration
Employment and Training Administration
Federal Aviation Administration
Federal Highway Administration
Comptroller of the Currency
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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U.S. Citizenship and Immigration Services, Department of Homeland Security; Executive Office for Immigration Review, Department of Justice.
Interim final rule with request for comments.
On December 23, 2020, the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) (collectively, “the Departments”) published a final rule (“Security Bars rule”) to clarify that the “danger to the security of the United States” standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and to make certain other changes; that rule was scheduled to take effect on January 22, 2021. As of January 21, 2021, the Departments delayed the rule's effective date for 60 days to March 22, 2021. In this rule, the Departments are further extending and delaying the rule's effective date to December 31, 2021. In addition, in light of evolving information regarding the best approaches to mitigating the spread of communicable disease, the Departments are also considering action to rescind or revise the Security Bars rule. The Departments are seeking public comment on whether that rule represents an effective way to protect public health while reducing barriers for noncitizens seeking forms of protection in the United States, or whether the Security Bars rule should be revised or revoked.
As of March 22, 2021, the effective date of the final rule published at 85 FR 84160 (Dec. 23, 2020), which was delayed by the rule published at 86 FR 6847 (Jan. 25, 2021), is further delayed by this interim final rule until December 31, 2021.
You may submit comments, identified by DHS Docket No. USCIS-2020-0013, by any one of the following methods:
•
•
Comments submitted in a manner other than those listed above, including emails or letters sent to DHS or U.S. Citizenship and Immigration Services officials, or DOJ or Executive Office for Immigration Review officials, will not be considered comments on this final rule and may not receive a response from the Departments.
Interested persons are invited to submit comments on any aspect of this action, as well as a potential future rulemaking rescinding or amending the Security Bars rule, by submitting relevant written data, views, or arguments. To provide the most assistance to the Departments, comments should reference a specific portion of the rule; explain the reason for any recommendation; and include data, information, or authority that supports the recommended change or rescission.
All comments submitted should include the agency name (U.S. Citizenship and Immigration Services) and Docket No. USCIS 2020-0013. Please note that all comments received are considered part of the public record and made available for public inspection at
On December 23, 2020, the Departments published the Security Bars rule to amend existing regulations
On January 20, 2021, the White House Chief of Staff issued a memorandum asking agencies to consider delaying, consistent with applicable law, the effective dates of any rules that have published and not yet gone into effect, for the purpose of allowing the President's appointees and designees to review questions of fact, law, and policy raised by those regulations.
The Departments have good cause to delay this rule's effective date further without advance notice and comment because implementation of this rule is not feasible due to a preliminary injunction against a related rule. The provisions of the Security Bars rule are premised upon, and reliant upon, the revisions to the Departments' asylum rules previously made by a separate joint rule that became effective before the Security Bars rule was scheduled to take effect. The Departments issued the “Global Asylum” rule, entitled
As the Departments noted in their previous rule delaying the January 22, 2021, effective date for the Security Bars rule, because of the preliminary injunction in effect against implementation of the Global Asylum final rule, implementing the Security Bars rule is not viable at this time, as the two rules are intertwined.
While DHS and DOJ were reviewing the comments submitted in response to the Security Bars NPRM, the Global Asylum final rule was published on December 11, 2020.
Moreover, the framework established by the Global Asylum final rule is critical to the justification for the Security Bars rule, because it would permit the Departments to remove individuals who are subject to the bars expeditiously. On the other hand, if the Departments were to implement only the remaining portions of the Security Bars rule that do not overlap with the enjoined Global Asylum final rule, the result would be the very situation that the Security Bars rule was created to remedy—namely, that possibly infectious individuals would be detained or released inside the United States, potentially for a lengthy period, while awaiting their removal hearings.
Additionally, to implement the full Security Bars rule—and effectively reinsert or rely upon regulatory provisions that the
If the injunction against implementation of the Global Asylum rule is lifted before December 31, the Departments will revise the effective date of the Security Bars rule as soon as possible thereafter. Similarly, if the injunction remains in effect on December 31, the Departments may delay the effective date of the Security Bars rule further. The Departments have chosen this time-limited delay, rather than an indefinite delay, due to the preliminary nature of the injunction.
The Departments are further considering amending or rescinding the Security Bars rule. In particular, the Departments are considering whether to publish a new rule that would remove or revise the regulatory changes promulgated in the Security Bars rule. In connection with that consideration, the Departments welcome data, views, and information on the best approaches for mitigating the spread of communicable disease in the operational context implicated by the Security Bars rule. The Departments are interested in information the public may have on more effective alternative approaches than that taken by the Security Bars rule, particularly in light of new or more comprehensive data. The Departments are also reviewing the Security Bars rule in light of the Administration's policy of expanding pathways for noncitizens seeking forms of protection in the United States and removing barriers that impede access to immigration benefits, and are seeking comment on alternative approaches that may achieve the best public health outcome while remaining more consistent with that policy goal.
Executive Orders (E.O.) 12866 (Regulatory Planning and Review), and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs, benefits, and transfers of available alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits, including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Pursuant to E.O. 12866, the Office of Information and Regulatory Affairs of the Office of Management and Budget determined that this rule is “significant” under E.O. 12866 and has reviewed this regulation.
The Departments have reviewed this rule in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601
This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Congressional Review Act (“CRA”). 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign
This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of E.O. 13132, the Departments believe that this rule will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of E.O. 12988.
This rule does not create new, or revisions to existing, “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.
This rule does not have “tribal implications” because it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Accordingly, E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), requires no further agency action or analysis.
U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS).
Final rule and temporary final rule; extension.
The Department of Homeland Security (DHS) is extending the effective date (for 180 days) of its temporary final rule which modified certain regulatory requirements to help ensure that USCIS may continue with affirmative asylum adjudications during the COVID-19 pandemic.
This final rule is effective March 22, 2021. The expiration date of the temporary final rule published at 85 FR 59655 on September 23, 2020, is extended from March 22, 2021, to September 20, 2021.
Maureen Dunn, Chief, Humanitarian Affairs Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20588-0009; telephone 240-721-3000 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).
The Secretary of Homeland Security (Secretary) publishes this extension of the temporary final rule pursuant to his authorities concerning asylum determinations. The Homeland Security Act of 2002 (HSA), Public Law 107-296, as amended, transferred many functions related to the execution of Federal immigration law to the newly created DHS. The HSA amended the Immigration and Nationality Act (INA or the Act), charging the Secretary “with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens,” INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the Secretary the power to take all actions “necessary for carrying out” the immigration laws, including the INA,
Asylum is a discretionary benefit that generally can be granted to eligible noncitizens who are physically present or who arrive in the United States, irrespective of their status, subject to the requirements in section 208 of the INA, 8 U.S.C. 1158, and implementing regulations,
Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several mandates and procedural requirements for the consideration of asylum applications. Congress also specified that the Attorney General and Secretary of Homeland Security “may provide by regulation for any other conditions or limitations on the consideration of an application for asylum,” so long as those limitations are “not inconsistent with this chapter.” INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). In sum, the current statutory framework leaves the Attorney General (and, after the HSA, also the Secretary) significant discretion to regulate consideration of asylum applications. USCIS regulations promulgated under this authority set agency procedures for asylum interviews, and require that applicants unable to proceed in English “must provide, at no expense to the Service, a competent interpreter fluent in both English and the applicant's native language or any other language in which the applicant is fluent.” 8 CFR 208.9(g). This requirement means that all asylum applicants who cannot proceed in English must bring an interpreter to their interview, posing a serious health risk in the current climate.
Accordingly, this temporary rule extends the temporary final rule published at 85 FR 59655 to continue to address the international spread of pandemic Coronavirus Disease 2019 (COVID-19) by seeking to slow the transmission and spread of the disease during asylum interviews before USCIS asylum officers. To that end, this temporary rule will extend the requirement in certain instances that noncitizens interviewed for this discretionary asylum benefit use USCIS Government-provided interpreters.
On January 31, 2020, the Secretary of Health and Human Services declared a public health emergency under section 319 of the Public Health Service Act (42 U.S.C. 247d), in response to COVID-19.
Since publication of the original rule, several variants of the virus that causes COVID-19 have been reported in the United States.
As of February 27, 2021, the U.S. Food and Drug Administration (FDA) has issued emergency use authorizations (EUAs) for three COVID-19 vaccines.
Many states and businesses are reopening in various phases, yet there are numerous challenges. The CDC has posted guidance for workplaces that either have reopened, or plan to do so, which include: Ensuring social distancing, installing physical barriers, modifying workspaces, closing communal spaces, staggering shifts, limiting travel, modifying commuting practices, and actively encouraging employees who have symptoms to stay home.
In light of the pandemic and to protect its workforce and help mitigate the spread of COVID-19, USCIS temporarily suspended all face-to-face services with the public from March 18, 2020 to June 4, 2020. In an effort to promote safety as USCIS reopened offices to the public for in-person services and resumed necessary operations, so that applicants for asylum and other USCIS immigration benefits could continue with their applications and petitions and not face adverse delays, USCIS implemented various mitigation efforts to protect the health and safety of the employees and the public, including: Requiring facial covers for all employees and members
DHS implemented a temporary rule on September 23, 2020 in order to reduce visitors to asylum offices in support of the overall COVID-19 mitigation strategies described above. Between September 23, 2020 and March 10, 2021, USCIS conducted 7,764 asylum interviews. That temporary rule, along with other noted public safety measures, have been effective in keeping our workforce and the public safe. As of March 5, 2021, there have been 1,577 confirmed cases of COVID-19 exposure among USCIS employees and contractors. The USCIS exposure rate (5.6%) remains below the national average (8.6%).
Therefore, DHS has determined that it is in the best interest of the public and USCIS employees and contractors to extend the temporary rule for another 180 days. Under this extension, asylum applicants who are unable to proceed with the interview in English will ordinarily be required to proceed with government-provided telephonic contract interpreters so long as they speak one of the 47 languages found on the Required Languages for Interpreter Services Blanket Purchase Agreement/U.S. General Services Administration Language Schedule (“GSA Schedule”). If the applicant does not speak a language on the GSA Schedule or elects to speak a language that is not on the GSA Schedule, the applicant will be required to bring his or her own interpreter to the interview who is fluent in English and the elected language (not on the GSA schedule).
USCIS incorporates into this extension the justifications, as well as the discussion on the benefits of providing telephonic contract interpreters in reducing the risk of contracting COVID-19 for applicants, attorneys, interpreters, and USCIS employees from the original rule.
DHS has determined that there are reasonable grounds for regarding potential exposure to COVID-19 as a public health concern and thus sufficient to continue to modify the interpreter requirement for asylum applicants to lower the number of in-person attendees at asylum interviews. DHS will continue to require asylum applicants to proceed with the asylum interview using USCIS's interpreter services for another 180 days following publication of this temporary final rule if they are fluent in one of the 47 languages discussed in the temporary rule at 85 FR at 59657.
DHS noted in the original temporary final rule that it would evaluate the public health concerns and resource allocation to determine whether to extend the rule. DHS has determined that extending this rule is necessary for public safety, and accordingly, DHS is extending this rule for 180 days unless it is further extended at a later date, and it continues to apply to all asylum interviews across the nation. USCIS has determined that an extension of 180 days is appropriate given that (1) the pandemic is ongoing;
DHS is issuing this extension as a temporary final rule pursuant to the APA's “good cause” exception. 5 U.S.C. 553(b)(B). DHS may forgo notice-and-comment rulemaking and a delayed effective date because the APA provides an exception from those requirements when an agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B);
The good cause exception for forgoing notice-and-comment rulemaking “excuses notice and comment in emergency situations, or where delay could result in serious harm.”
DHS is publishing this extension as a temporary final rule because of the continuing COVID-19 crisis and incorporates into this extension the discussion of good cause from the original temporary rule. Additionally, as discussed earlier in this preamble, on January 7, 2021, the Secretary of Health and Human Services renewed the determination that a COVID-19 public health emergency exists.
As of February 23, 2021, there have been approximately 110,763,898 cases of COVID-19 identified globally, resulting in approximately 2,455,331 deaths; approximately 27,702,074 cases have been identified in the United States, with about 480,467 new cases being identified in the 7 days preceding February 23rd, and approximately 491,894 reported deaths due to the disease.
Hospitalization may still be required in severe cases and mechanical respiratory support may be needed in the most severe cases. Additionally, several variants of the virus that causes COVID-19 have been reported in the United States.
Based on the continuing health emergency, DHS has concluded that the good cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this temporary final rule extension. Delaying implementation of this rule until the conclusion of notice-and-comment procedures and the 30-day delayed effective date would be impracticable and contrary to the public interest due to the need to continue agency operations and reduce associated risk to asylum office staff, as well as the public, with the spread of COVID-19.
As of March 10, 2021, USCIS had 397,451 asylum applications, on behalf of 625,220 noncitizens, pending final adjudication. Over 94% of these pending applications are awaiting an interview by an asylum officer. The USCIS backlog will continue to increase unless USCIS can safely and efficiently conduct asylum interviews.
This extension temporary final rule is promulgated as a response to COVID-19. It is temporary, limited in application to only those asylum applicants who cannot proceed with the interview in English, and narrowly tailored to mitigate the spread of COVID-19. To not extend such a measure could cause serious and far-reaching public safety and health effects.
The Regulatory Flexibility Act, 5 U.S.C. 601
This temporary final rule extension will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This temporary final rule extension is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or 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.
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule is designated a significant regulatory action under E.O. 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation. DHS, however, is proceeding under the emergency provision of Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously during the current public health emergency.
This extension of the original temporary rule will continue to help asylum applicants proceed with their interviews in a safe manner, while protecting agency staff. As a result of the original temporary rule, between September 23, 2020 and March 10, 2021, USCIS conducted 7,764 asylum interviews, with interpreters available telephonically. This extension of the original temporary rule is not expected to result in any additional costs to the applicant or to the government. As previously explained, the contract interpreters will be provided at no cost to the applicant. USCIS already has an existing contract to provide telephonic interpretation and monitoring in interviews for all of its case types. USCIS has provided monitors for many years. Almost all interviews that utilize a USCIS provided interpreter after this rulemaking would have had a contracted monitor under the status quo. As the cost of monitoring and interpretation are identical under the contract and monitors will no longer be needed for these interviews, the implementation of this rule is projected to be cost neutral or negligible as USCIS is already paying for these services even without this rule.
This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this
This rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988.
This rule does not propose new, or revisions to existing, “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. As this is an extension of a temporary final rule and would only span 180 days, USCIS does not anticipate a need to update the Form I-589, Application for Asylum and for Withholding of Removal, despite the existing language on the Instructions regarding interpreters, because it will be primarily rescheduling interviews that were cancelled due to COVID-19. USCIS will post updates on its I-589 website,
Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, the Secretary of Homeland Security amends 8 CFR part 208 as follows:
8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.
(h)
Office of the Comptroller of the Currency, Treasury (OCC); Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Interim final rule; request for public comment.
In order to support and facilitate the timely implementation and acceptance of the Congressionally authorized Emergency Capital Investment Program (ECIP) for the Department of the Treasury to make capital investments in low- and moderate-income community financial institutions, the OCC, Board, and FDIC (together, the agencies) are issuing an interim final rule that provides that preferred stock issued under ECIP qualifies as additional tier 1 capital and that subordinated debt issued under ECIP qualifies as tier 2 capital under the agencies' capital rule.
This rule is effective on March 22, 2021. Comments must be received on or before May 21, 2021.
You may review comments and other related materials that pertain to this action by the following method:
Go to
The docket may be viewed after the close of the comment period in the same manner as during the comment period.
All public comments are available from the Board's website at
On December 27, 2020, the Consolidated Appropriations Act, 2021,
Under ECIP, a financial institution is generally eligible to receive capital investments from Treasury if it is a low- and moderate-income community financial institution, which is defined by the Act to include any financial institution that is (1) a community development financial institution or minority depository institution,
Under ECIP, Treasury can acquire senior preferred stock from eligible banking organizations (Senior Preferred Stock). Additionally, if the Secretary of the Treasury determines that an eligible banking organization cannot feasibly issue preferred stock, such as a bank organized as an S corporation
On March 4, 2021, Treasury published the terms of the Senior
Under the terms of Senior Preferred Stock, participating eligible banking organizations will not be required to pay dividends until two years after issuance of the Senior Preferred Stock, and then will be subject to a noncumulative dividend with a rate not to exceed 2 percent that may fluctuate based on certain lending growth criteria applied to the issuer. A participating eligible banking organization is prohibited from paying dividends under certain circumstances, including if the participating eligible banking organization determines that the payment would be detrimental to the financial health of the institution. Under the terms of the Subordinated Debt, interest payments on the Subordinated Debt would be subject to determinants and constraints similar to those described above, but the interest payments would be cumulative and deferrable.
The Act requires Treasury to establish restrictions on executive compensation, share buybacks, and dividend payments for issuers of capital instruments issued under ECIP, as well as restrictions on conflicts of interest.
The Senior Preferred Stock and Subordinated Debt will feature characteristics that are similar to those of instruments that qualify under the agencies' capital rule as additional tier 1 capital and tier 2 capital, respectively. As discussed above, the Act directs the Secretary of the Treasury to seek to establish the terms of the Senior Preferred Stock to enable these instruments to receive “Tier 1” capital treatment. Further, the establishment of ECIP and the capital investments being made thereunder help support the efforts of low- and moderate-income community financial institutions to provide financial intermediary services in low-income and underserved communities. To facilitate implementation of ECIP, the agencies are revising the capital rule to provide that the Senior Preferred Stock will qualify as additional tier 1 capital and Subordinated Debt will qualify as tier 2 capital.
In addition, the OCC is adding language to its licensing rule, which sets forth certain requirements applicable to subordinated debt issued by a national bank. Paragraph (d)(2) of section 5.47 prohibits a national bank from including in a subordinated debt note any provision or covenant that unduly restricts or otherwise acts to unduly limit the authority of a national bank or interferes with the OCC's supervision of the national bank. To facilitate the ability of a national bank to issue subordinated debt through ECIP, the OCC is adding new paragraph (j) to section 5.47. This new paragraph clarifies that provisions and covenants added to a subordinated debt document pursuant to requirements imposed by the Treasury Department for purposes of ECIP will not be considered, under paragraph (d)(2) of section 5.47, to unduly restrict or otherwise act to unduly limit the authority of a national bank or interfere with the OCC's supervision of the national bank.
The agencies seek comment on all aspects of this interim final rule. In particular, the agencies seek comment on the regulatory capital treatment of the Senior Preferred Stock and Subordinated Debt issued under ECIP and on the following specific question:
The agencies are issuing the interim final rule without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA).
As discussed above, the purpose of capital investments made under ECIP is to support the efforts of low- and moderate-income community financial institutions and the communities they serve, which may be disproportionately impacted by the economic effects of the COVID-19 event. The Act also requires Treasury to seek to establish the terms of senior preferred stock instruments issued under the Program such that these instruments would be considered
The agencies believe that the public interest is best served by implementing the interim final rule immediately upon publication in the
The APA also requires a 30-day delayed effective date, except for (1) substantive rules that grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause.
In addition, the agencies find good cause to publish the interim final rule with an immediate effective date for the same reasons set forth above under the discussion of section 553(b)(B) of the APA. While the agencies believe that there is good cause to issue the interim final rule without advance notice and comment and with an immediate effective date, as noted, the agencies are interested in the views of the public on all aspects of the interim final rule.
For purposes of Congressional Review Act (CRA), the Office of Management and Budget (OMB) makes a determination as to whether a final rule constitutes a “major” rule.
The 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-based enterprises in domestic and export markets.
For the same reasons set forth above, the agencies are adopting the interim final rule without the delayed effective date generally prescribed under the CRA. The delayed effective date required by the CRA does not apply to any rule for which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
As required by the CRA, the agencies will submit the interim final rule and other appropriate reports to Congress and the Government Accountability Office for review.
The Paperwork Reduction Act of 1995 (PRA) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid OMB control number.
The Regulatory Flexibility Act (RFA)
Nevertheless, the agencies seek comment on whether, and the extent to which, the interim final rule would affect a significant number of small entities.
Section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA)
In addition, section 302(b) of RCDRIA requires new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on insured depository institutions generally to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form.
The OCC analyzes proposed rules for the factors listed in Section 202 of the Unfunded Mandates Reform Act of 1995 before promulgating a final rule for which a general notice of proposed rulemaking was published.
Section 722 of the Gramm-Leach-Bliley Act
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Administrative practice and procedure, Capital, National banks, Risk.
Administrative practice and procedure, Federal savings associations, National banks, Reporting and recordkeeping requirements, Securities.
Administrative practice and procedure, Banks, Banking, Capital, Federal Reserve System, Holding companies.
Administrative practice and procedure, Banks, Banking, Confidential business information, Investments, Reporting and recordkeeping requirements, Savings associations.
For the reasons stated in the joint preamble, the Office of the Comptroller of the Currency amends chapter I of Title 12 of the Code of Federal Regulations as follows:
12 U.S.C. 93a, 161, 1462, 1462a, 1463, 1464, 1818, 1828(n), 1828 note, 1831n note, 1835, 3907, 3909, 5412(b)(2)(B), and Pub. L. 116-136, 134 Stat. 281.
The additions and revisions read as follows:
(c) * * *
(3) * * *
(ii) Any preferred stock instruments issued under the U.S. Department of the Treasury's Emergency Capital Investment Program pursuant to section 104A of the Community Development Banking and Financial Institutions Act of 1994, added by the Consolidated Appropriations Act, 2021.
(d) * * *
(4) * * *
(ii) Any debt instruments issued under the U.S. Department of the Treasury's Emergency Capital Investment Program pursuant to section 104A of the Community Development Banking and Financial Institutions Act of 1994, added by the Consolidated Appropriations Act, 2021.
12 U.S.C. 1
(j)
For the reasons stated in the preamble, the Board of Governors of the Federal Reserve System amends 12 CFR chapter II as follows:
12 U.S.C. 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 additions and revisions read as follows:
(c) * * *
(3) * * *
(ii) Any preferred stock instrument issued under the U.S. Department of the Treasury's Emergency Capital Investment Program pursuant to section 104A of the Community Development Banking and Financial Institutions Act of 1994, added by the Consolidated Appropriations Act, 2021.
(d) * * *
(4) * * *
(ii) Any debt instrument issued under the U.S. Department of the Treasury's Emergency Capital Investment Program pursuant to section 104A of the Community Development Banking and Financial Institutions Act of 1994, added by the Consolidated Appropriations Act, 2021.
For the reasons stated in the preamble, the Federal Deposit Insurance Corporation amends chapter III of Title 12 of the Code of Federal Regulations as follows:
12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 1818(c), 1818(t), 1819(Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 4808; 5371; 5412; Pub. L. 102-233, 105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102-242, 105 Stat. 2236, 2355, as amended by Pub. L. 103-325, 108 Stat. 2160, 2233 (12 U.S.C. 1828 note); Pub. L. 102-242, 105 Stat. 2236, 2386, as amended by Pub. L. 102-550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note); Pub. L. 111-203, 124 Stat. 1376, 1887 (15 U.S.C. 78o-7 note); Pub. L. 115-174; section 4014 § 201, Pub. L. 116-136, 134 Stat. 281 (15 U.S.C. 9052).
The additions and revisions read as follows:
(c) * * *
(3) * * *
(ii) Any preferred stock instruments issued under the U.S. Department of the Treasury's Emergency Capital Investment Program pursuant to section 104A of the Community Development Banking and Financial Institutions Act of 1994, added by the Consolidated Appropriations Act, 2021.
(d) * * *
(4) * * *
(ii) Any debt instruments issued under the U.S. Department of the Treasury's Emergency Capital Investment Program pursuant to section 104A of the Community Development Banking and Financial Institutions Act of 1994, added by the Consolidated Appropriations Act, 2021.
By order of the Board of Governors of the Federal Reserve System.
By order of the Board of Directors.
Farm Credit Administration.
Direct final rule.
The Farm Credit Administration (FCA, we, or our) issues this direct final rule to repeal certain regulations in part 627 that have been superseded by section 5412 of the Agricultural Improvement Act of 2018 (2018 Farm Bill), which strengthens, clarifies, and updates the authorities of the Farm Credit System Insurance Corporation (FSCIC or Insurance Corporation) to act as a conservator or receiver of a Farm Credit System (FCS or System) institution.
If no significant adverse comment is received on or before April 21, 2021, this regulation shall become effective no earlier than the expiration of 30 days after publication in the
For accuracy and efficiency reasons, please submit comments by email or through FCA's website. We do not accept comments submitted by facsimiles (fax), as faxes are difficult for us to process and achieve compliance with section 508 of the Rehabilitation Act of 1973. Please do not submit your comment multiple times via different methods. You may submit comments by any of the following methods:
•
• FCA Website:
•
You may review copies of comments we receive on our website at
We will show your comments as submitted, including any supporting data provided, but for technical reasons we may omit items such as logos and special characters. Identifying information that you provide, such as phone numbers and addresses, will be publicly available. However, we will attempt to remove email addresses to help reduce internet spam. You may also review comments at our office in McLean, Virginia. Please call us at (703) 883-4056 or email us at
The objective of this direct final rule is to repeal regulatory provisions in part 627 that have been superseded by section 5412 of the 2018 Farm Bill.
On December 20, 2018, President Trump signed the 2018 Farm Bill into law.
FCA is revising its regulations in part 627 so they are consistent with section 5412 of the 2018 Farm Bill. FCA is issuing this direct final rule that repeals several regulations in part 627 that are now inconsistent with provisions in section 5.61C of the Act pertaining to FCSIC's authority to administer conservatorships and receiverships of FCS institutions. FCA may address the following issues in subsequent rulemakings: (1) Voluntary liquidation of System institutions under section 4.12(a) of the Act; (2) FCA appointment of conservators and receivers pursuant to section 4.12(b) of the Act; and (3) chartering and dissolving bridge banks in accordance with section 5.61C(h) of the Act.
FCA is rescinding, in their entirety, nine (9) regulations in subpart B and one regulation in subpart C of part 627 pertaining to the receivership or conservatorship of System institutions. New section 5.61C of the Act has strengthened, clarified, and updated FCSIC's conservatorship and receivership authorities, thereby superseding and rendering these ten (10) regulations obsolete. More specifically, this direct rule rescinds:
• 12 CFR 627.2725 Powers and duties of the receiver—sets forth the powers and duties of the receiver of a System institution.
• 12 CFR 627.2726 Treatment by the conservator or receiver of financial assets transferred in connection with a securitization or participation—defines beneficial interests, financial assets, participation, securitization, and special purpose entity. It describes the treatment of financial assets transferred in connection with a securitization or participation in a conservator or receiver.
• 12 CFR 627.2730 Preservation of equity—provides that no capital stock, participation certificates, equity reserves, or other allocated equities of an institution in receivership will be issued, allocated, retired, sold, distributed, transferred, assigned, or applied against any indebtedness of the owners of such equities. This regulation confirms that borrower stock must be retired in accordance with section 4.9A of the Act.
• 12 CFR 627.2740 Creditors' claims—describes the requirements to provide notice to creditors, the allowance and disallowance of claims, and the procedures for handling certain claims.
• 12 CFR 627.2745 Priority of claims—associations—describes the priority of claims for the distribution of the assets of an association in liquidation.
• 12 CFR 627.2750 Priority of claims-banks—describes the priority of claims for the distribution of the assets of a bank in liquidation.
• 12 CFR 627.2752 Priority of claims—other Farm Credit institutions—describes the priority of claims for the distribution of the assets of a System institution other than an association or bank.
• 12 CFR 627.2755 Payment of claims—describes the payment of claims and if there are insufficient funds to pay any class of claims in full, distribution for that class of claims will be handled on a pro rata basis.
• 12 CFR 627.2760 Inventory, audit, and reports—describes inventory, audit, and reporting requirements for the receiver upon possession, annually, and upon final liquidation.
• 12 CFR 627.2780 Powers and duties of conservators—describes the powers and duties of the conservator to conduct its operations for the benefit of the creditors and stockholders of the institution.
As noted earlier, section 5412 of the 2018 Farm Bill, which added section 5.61C to the Act, enhanced, clarified, and updated FCSIC's powers to conduct conservatorships and receiverships of System institutions. More specifically, various provisions in section 5.61C(b)(2) of the Act include authorization for FCSIC to: (1) Operate any System institution in conservatorship or receivership, (2) function as the institution's board of directors, officers, members, and stockholders, (3) use proceeds collected from the performance of contracts and sale of assets to pay valid claims, and (4) receive, determine, and settle claims, and set the priority of claims in accordance with the statute. Furthermore, sections 5.61C(b)(1), (b)(4), and (b)(10)(C) of the Act expressly authorize FCSIC to prescribe regulations regarding the conduct of conservatorships and receiverships, and the allowance, disallowance, and resolution of claims in receivership.
Section 5.61C(b)(15)(B) of the Act states that FCSIC shall make an annual accounting or report about each conservatorship or receivership available to the FCA Board. Providing an annual accounting or report to FCA is currently required by § 627.2760, which is among the regulations that we are rescinding. Pursuant to the Act, FCA is able to obtain necessary annual accounting or reports from FCSIC.
This direct final rule is not rescinding subpart A, §§ 627.2720, 627.2735, or 627.2765 in subpart B, or §§ 627.2770, 627.2775, 627.2785, or 627.2790 in subpart C of part 627 because these regulations implement section 4.12(b) of the Act which authorizes FCA to appoint FCSIC as the receiver or conservator of System institutions. Similarly, we are not repealing subpart D of part 627 which governs our authority to supervise and regulate the voluntary liquidation of a System institution without a receiver. FCA may revise or update these regulations in a
For the reasons discussed above, we are rescinding the above-referenced sections of part 627 subparts B (Receivers and Receiverships) and C (Conservators and Conservatorships) by direct final rulemaking. The Administrative Conference of the United States recommends direct final rulemakings for Federal agencies to enact noncontroversial regulations on an expedited basis, without the usual notice and comment period.
In a direct final rulemaking, we notify the public that the rule will become effective on a specified date unless we receive a significant adverse comment during the comment period. A significant adverse comment is one where the commenter explains why the rule would be inappropriate (including challenges to its underlying premise or approach), ineffective, or unacceptable without a change. In general, a significant adverse comment would raise an issue serious enough to warrant a substantive response from the FCA in a notice-and-comment proceeding.
We believe that a direct final rulemaking is the appropriate method for rescinding above-referenced sections in subparts B and C of part 627 that are superseded by the 2018 Farm Bill. We do not anticipate there will be significant adverse comments because this direct final rule implements recent statutory amendments governing FCSIC's numerous powers and duties as the conservator or receiver of System institutions. If, however, we receive a significant adverse comment during the comment period, we will publish in the
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
Under the provisions of the Congressional Review Act (5 U.S.C. 801
Agriculture, Banks, Banking, Claims, Rural areas.
For the reasons stated in the preamble, part 627 of chapter VI, title 12 of the Code of Federal Regulations are amended as follows:
Secs. 4.2, 5.9, 5.10, 5.17, 5.51, 5.58, 5.61 of the Farm Credit Act (12 U.S.C. 2183, 2243, 2244, 2252, 2277a, 2277a-7, 2277a-10).
U.S. Small Business Administration.
Interim final rule.
This interim final rule implements changes related to loans made under the Paycheck Protection Program (PPP), which was originally established under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to provide economic relief to small businesses nationwide adversely impacted by the Coronavirus Disease 2019 (COVID-19). On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act) was enacted, extending the authority to make PPP loans through March 31, 2021, revising certain PPP requirements, and permitting second draw PPP loans. On January 14, 2021, SBA published an interim final rule that incorporated the Economic Aid Act amendments to the PPP and consolidated the interim final rules (and important guidance) that had been issued governing borrower eligibility, lender eligibility, and PPP application and origination requirements for PPP loans. On March 11, 2021, the American Rescue Plan Act of 2021 (American Rescue Plan Act) was enacted expanding eligibility for first and second draw PPP loans, revising the exclusions from payroll costs for purposes of loan forgiveness, and providing that a PPP borrower that receives a PPP loan after December 27, 2020 can be approved for a Shuttered Venue Operator Grant under certain conditions. This interim final rule revises the PPP rules to incorporate the American Rescue Plan Act's amendments to the PPP. Additionally, this interim final rule clarifies the eligibility for first draw PPP loans for applicants that are assigned a North American Industry Classification System (NAICS) code beginning with 72 and have more than one physical location and clarifies certain payroll cost exclusions included in the Economic Aid Act.
You may submit comments, identified by number SBA-2021-0013 through the Federal eRulemaking Portal:
SBA will post all comments on
A Call Center Representative at 833-572-0502, or the local SBA Field Office; the list of offices can be found at
On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) (Pub. L. 116-136) was enacted to provide emergency assistance and health care response for individuals, families, and businesses affected by the coronavirus disease 2019 (COVID-19) pandemic. Section 1102 of the CARES Act temporarily permitted the Small Business Administration (SBA) to guarantee 100 percent of 7(a) loans under a new program titled the “Paycheck Protection Program,” pursuant to section 7(a)(36) of the Small Business Act (15 U.S.C. 636(a)(36)) (First Draw PPP Loans). Section 1106 of the CARES Act provided for forgiveness of up to the full principal amount of qualifying loans guaranteed under the Paycheck Protection Program (PPP).
On December 27, 2020, the Economic Aid to Hard-Hit Small Businesses, Nonprofits and Venues Act (Economic Aid Act) (Pub. L. 116-260) was enacted. The Economic Aid Act reauthorized lending under the PPP through March 31, 2021. The Economic Aid Act added a new temporary section 7(a)(37) to the Small Business Act, which authorizes SBA to guarantee additional PPP loans (Second Draw PPP Loans) to eligible borrowers under generally the same terms and conditions available under section 7(a)(36) of the Small Business Act through March 31, 2021. The Economic Aid Act also redesignated section 1106 of the CARES Act as section 7A of the Small Business Act, to appear after section 7 of the Small Business Act.
SBA initially published an interim final rule implementing the PPP on April 15, 2020 and subsequently issued additional interim final rules. On January 14, 2021, SBA published interim final rules implementing the Economic Aid Act amendments to the PPP.
This interim final rule is being issued without advance notice and public comment because section 1114 of the CARES Act and section 303 of the Economic Aid Act authorize SBA to issue regulations to implement the Paycheck Protection Program without regard to notice requirements. In addition, this rule is being issued to allow for immediate implementation of these changes. The intent of the CARES Act, the Economic Aid Act, and the American Rescue Plan Act is that SBA provide relief to America's small businesses and nonprofit organizations expeditiously. Given the urgent need to provide borrowers with timely relief and the short period of time before the program ends on March 31, 2021, SBA has determined that it is impractical and not in the public interest to provide a 30-day delayed effective date. An immediate effective date will allow SBA to give small businesses and nonprofit organizations affected by this interim final rule the maximum amount of time to apply for loans and lenders the maximum amount of time to process applications before the program ends. This good cause justification also supports waiver of the 60-day delayed effective date for major rules under the Congressional Review Act at 5 U.S.C. 808(2). Although this interim final rule is effective immediately, comments are solicited from interested members of the public on all aspects of the interim final rule.
These comments must be submitted on or before April 21, 2021. SBA will consider these comments and the need for making any revisions as a result of these comments.
Part III.B.1. of the consolidated interim final rule implementing updates to the PPP identifies the businesses, organizations, and individuals that are eligible for First Draw PPP Loans, including the applicable size standards. Part III.B.3. of that rule sets forth the affiliation rules generally applicable to PPP loans, including the affiliation waivers available to certain businesses and organizations. The American Rescue Plan Act expands eligibility to additional businesses and organizations and revises size standards and adds affiliation waivers for certain eligible businesses and organizations.
The American Rescue Plan Act also revises section 324 of the Economic Aid Act to provide that businesses that receive a PPP loan after December 27, 2020 are no longer ineligible for a Shuttered Venue Operator (SVO) Grant under certain conditions. Specifically, if a PPP borrower receives a First Draw or Second Draw PPP Loan after December 27, 2020, the amount of any subsequently-approved SVO grant will
In addition, SBA is making a clarifying change to the list of eligible entities for First Draw PPP Loans by adding businesses with a NAICS code beginning with 72 that employ no more than 500 employees per physical location. These entities are included in section 7(a)(36)(D)(iii) of the Small Business Act (15 U.S.C. 636(a)(36)(D)(iii)), as amended by the CARES Act, and are addressed in section B.3. of the consolidated interim final rule implementing updates to the PPP. Because the omission of these entities from the list of eligible entities could cause borrower confusion, SBA is revising subsection B.1.a. to add these entities.
Therefore, Part III.B.1.a. (86 FR 3692, 3695) of the consolidated interim final rule implementing updates to the PPP is revised to read as follows:
You are eligible for a PPP loan if:
i. You, together with any affiliates (if applicable),
• A small business concern under the applicable revenue-based size standard established by SBA in 13 CFR 121.201 for your industry or under the SBA alternative size standard;
• an independent contractor, eligible self-employed individual, or sole proprietor;
• a business concern, a tax-exempt nonprofit organization described in section 501(c)(3) of the Internal Revenue Code (IRC), a tax-exempt veterans organization described in section 501(c)(19) of the IRC, a Tribal business concern described in section 31(b)(2)(C) of the Small Business Act, and you employ no more than the greater of 500 employees or, if applicable, the size standard in number of employees established by SBA in 13 CFR 121.201;
• a housing cooperative that employs no more than 300 employees and meets the criteria described in subsection B.1.g.v. of the consolidated interim final rule implementing updates to the PPP, as amended by this interim final rule;
• a business concern that is assigned a North American Industry Classification System (NAICS) code beginning with 72 that employs no more than 500 employees per physical location;
• an eligible section 501(c)(6) organization or an eligible destination marketing organization,
• a news organization that is majority owned or controlled by a NAICS code 511110 or 5151 business or a nonprofit public broadcasting entity with a trade or business under NAICS 511110 or 5151, that employs no more than 500 employees (or, if applicable, the size standard in number of employees established by SBA in 13 CFR 121.201 for your industry) per location;
• a tax-exempt non-profit organization described in section 501(c)(3) of the Internal Revenue Code that employs not more than 500 employees per physical location of the organization;
• a tax-exempt nonprofit organization described in any paragraph of section 501(c) of the Internal Revenue Code of 1986, other than paragraph (3), (4), (6), or (19) that employs not more than 300 employees per physical location and meets the criteria described in subsection B.1.g.iii. of the consolidated interim final rule implementing updates to the PPP, as amended by this interim final rule;
• a business concern or other organization that is assigned a NAICS code of 519130, certifies in good faith as an internet-only news publisher or internet-only periodical publisher, and is engaged in the collection and distribution of local or regional and national news and information, that employs not more than 500 employees (or the size standard in number of employees established by SBA in 13 CFR 121.201 for NAICS code 519130) per physical location, and meets the criteria described in subsection B.1.g.iv. of the consolidated interim final rule implementing updates to the PPP, as amended by this interim final rule
• another type of entity specifically provided for by PPP rules (as described below); and
ii. you were in operation on February 15, 2020, and either had employees for whom you paid salaries and payroll taxes or paid independent contractors, as reported on a Form 1099-MISC or you were an eligible self-employed individual, independent contractor, or sole proprietorship with no employees.
You must submit documentation sufficient to establish eligibility and to demonstrate the qualifying payroll amount, which may include, as applicable, payroll records, payroll tax filings, Form 1099-MISC, Schedule C or F, income and expenses from a sole proprietorship, or bank records.
The American Rescue Plan Act expands eligibility for PPP loans to tax-exempt organizations described in any paragraph of section 501(c) of the Internal Revenue Code of 1986, except for section 501(c)(4). Thus, subsections III.B.1.g.iii. and iv. of the consolidated interim final rule implementing updates to the PPP, which describe the eligibility of electric cooperatives and telephone cooperatives that are exempt from Federal income taxation under section 501(c)(12) of the Internal Revenue Code, are no longer necessary. For PPP loans made after the effective date of this interim final rule, such organizations will be eligible as set forth in a new subsection for tax-exempt organizations under any paragraph of section 501(c) of the Internal Revenue Code (other than paragraph (3), (4), (6), or (19)) discussed immediately below. With the new statutory change, the size eligibility requirements for electric and telephone cooperatives have changed as well. Previously, these entities were eligible if they had no more than 500 employees, met the employee-based SBA size standard for their industry (if higher), or met SBA's alternative size standard. For PPP loans made after the effective date of this interim final rule, these entities are eligible if they have no more than 300 employees per physical location, and these entities are no longer permitted to use the employee-based SBA size standard for their industry or SBA's alternative size standard to determine size.
Therefore, Part III.B.1.g. of the consolidated interim final rule implementing updates to the PPP (86 FR 3692, 3696-3697) is revised by replacing subsections B.1.g.iii. and iv. of the industry-specific eligibility issues with two new subsections to read as follows:
Yes. An organization described in any paragraph of section 501(c) of the Internal Revenue Code of 1986, other than paragraph (3), (4), (6), or (19) and exempt from tax under section 501(a) of such Code, is eligible for a PPP loan if: (1) The organization does not receive more than 15 percent of its receipts from lobbying activities; (2) the lobbying activities of the organization do not comprise more than 15 percent of the total activities of the organization; (3) the cost of the lobbying activities of the organization did not exceed $1,000,000 during the most recent tax year of the organization that ended prior to February 15, 2020; and (4) the organization employs not more than 300 employees.
Yes. A business concern or other organization that was not eligible to receive a PPP loan before March 11, 2021, is eligible for a PPP loan if it: (1) Is assigned a NAICS code of 519130; (2) certifies in good faith that it is an internet-only news publisher or internet-only periodical publisher; (3) is engaged in the collection and distribution of local or regional and national news and information; (4) employs not more than 500 employees (or the size standard in number of employees established by SBA in 13 CFR 121.201 for NAICS code 519130) per physical location; and (5) certifies in good faith that proceeds of the loan will be used to support expenses at the component of the business concern or organization that supports local or regional news.
To implement the American Rescue Plan Act provision that allows businesses to receive both a Shuttered Venue Operator (SVO) Grant and a PPP loan under certain conditions, Part III.B.2.a.vi. of the consolidated interim final rule implementing updates to the PPP (86 FR 3692, 3698) is revised to read as follows:
You are ineligible for a PPP loan if, for example:
vi. You or your business have been approved for a grant under the Shuttered Venue Operator (SVO) Grant Program under section 324 of the Economic Aid Act. (If you receive a PPP loan after December 27, 2020 and you are subsequently approved for an SVO grant, the amount of the SVO grant received will be reduced by the amount of a First Draw or Second Draw PPP Loan. If you receive both a First Draw and Second Draw PPP Loan after December 27, 2020 and you are subsequently approved for an SVO grant, the SVO grant will be reduced by the combined amounts of both PPP loans. A PPP loan received before December 27, 2020 will not reduce the amount of the SVO grant.)
As noted above, the American Rescue Plan Act added affiliation waivers for certain eligible organizations with respect to PPP loans. To implement the additional affiliation waiver applicable to eligible internet publishing organizations, the parenthetical at the end of Part III.B.2.a.viii. of the consolidated interim final rule implementing updates to the PPP (86 FR 3692, 3698) is revised to include a reference to B.1.g.iv, which describes the conditions under which such internet publishing companies are eligible. Therefore, Part III.B.2.a.viii of the consolidated interim final rule implementing updates to the PPP, as amended by this interim final rule, is revised to read as follows:
viii. Your business is an issuer, the securities of which are listed on an exchange registered as a national securities exchange under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f)
Also, Part III.B.12.vi. of the consolidated interim final rule implementing updates to the PPP (86 FR 3692, 3706) is revised to read as follows:
On the PPP borrower application, an authorized representative of the applicant must certify in good faith to all of the below:
vi. The Applicant has not been approved for a Shuttered Venue Operator (SVO) grant from SBA as of the date of this loan application, and the Applicant acknowledges that if the Applicant is approved for an SVO grant before SBA issues a loan number for this loan, the Applicant is ineligible for the loan and acceptance of any loan proceeds will be considered an unauthorized use.
Part III.B.3. of the consolidated interim final rule implementing updates to the PPP describes the affiliation rules generally applicable to PPP loans (86 FR 3692, 3698-3699). The American Rescue Plan Act adds affiliation waivers for certain businesses and organizations. Therefore, footnote 40 in part III.B.3.a. is revised to read as follows:
Paragraph 7(a)(36)(D)(iv) of the Small Business Act (15 U.S.C. 636(a)(36)(D)(iv)), as added by the CARES Act and amended by the Economic Aid Act and the American Rescue Plan Act, waives the affiliation rules contained in § 121.103 for (1) any business concern with not more than 500 employees that, as of the date on which the loan is disbursed, is assigned a North American Industry Classification System code beginning with 72; (2) any business concern operating as a franchise that is assigned a franchise identifier code by the Administration; (3) any business concern that receives financial assistance from a company
Part IV.(c) of the interim final rule on second draw PPP loans sets forth who is eligible for a Second Draw PPP Loan. The American Rescue Plan Act amended the eligibility criteria for a Second Draw PPP Loan similarly to the amendments discussed above for First Draw PPP Loans. Therefore, part IV.(c)(1) of the interim final rule on second draw PPP loans (86 FR 3712, 3717) is revised to read as follows:
Subject to subsection (e) of this section, below, the following applicants are eligible for Second Draw PPP Loans:
(1) An applicant is eligible for a Second Draw PPP Loan if it is a business concern, independent contractor, eligible self-employed individual, sole proprietor, nonprofit organization eligible for a First Draw PPP Loan, veterans organization, Tribal business concern, housing cooperative, small agricultural cooperative, eligible 501(c)(6) organization or destination marketing organization, an eligible nonprofit news organization, additional covered nonprofit entity, or eligible internet publishing company
(i) Previously received a First Draw PPP loan in accordance with the eligibility criteria in the Consolidated First Draw PPP IFR (as amended);
(ii) has used, or will use, the full amount of its First Draw PPP Loan (including the amount of any increase on such First Draw PPP Loan) on authorized uses under subsection B.11. of the Consolidated First Draw PPP IFR on or before the expected date on which the Second Draw PPP Loan will be disbursed;
(iii) employs not more than 300 employees, unless it satisfies the alternative criteria for businesses with a North American Industry Classification System (“NAICS”) code beginning with 72, eligible news organizations, (501)(c)(3) nonprofit organizations, additional covered nonprofit entities, 501(c)(6) organizations, eligible destination marketing organizations, and eligible internet publishing organizations with more than one physical location described in subsection (c)(3), (c)(4), (c)(5), or (c)(6) of this section; and
(iv) (A) experienced a reduction in revenue in calendar year 2020, measured as follows:
Part IV.(c) of the interim final rule on second draw PPP loans (86 FR 3712, 3718) also is revised by adding two new subsections at the end to read as follows:
(5) An entity is eligible for a Second Draw PPP Loan if it is a 501(c)(3) nonprofit organization, an additional covered nonprofit entity, an eligible 501(c)(6) organization, or an eligible destination marketing organization and it employs not more than 300 employees per physical location of the entity or organization.
(6) A business concern or other organization that was not eligible to receive a covered loan before March 11, 2021, is eligible to receive a Second Draw PPP Loan for the continued provision of news, information, content, or emergency information if it is assigned a NAICS code of 519130, certifies in good faith as an internet-only news publisher or internet-only periodical publisher, and is engaged in the collection and distribution of local or regional and national news and information, and:
(i) The business concern or organization employs not more than 300 employees per physical location of the business concern or organization; and
(ii) the business concern or organization makes a good faith certification that proceeds of the loan will be used to support expenses at the component of the business concern or organization that supports local or regional news.
Part IV.(d) of the interim final rule on second draw PPP loans states that eligibility for Second Draw PPP Loans is governed by the same affiliation rules (and waivers) as First Draw PPP Loans, except as described in subsection (d)(2). The American Rescue Plan Act revised the affiliation waivers for First Draw and Second Draw PPP Loans. Although the American Rescue Plan Act did not amend section 7(a)(37)(E)(ii) of the Small Business Act (15 U.S.C. 636(a)(37)(E)(ii)) to substitute “not more than 300 employees” for “not more than 500 employees” in subclause (V) of section 7(a)(36)(D)(iv) of the Small Business Act (15 U.S.C. 636(a)(36)(D)(iv)), as section 7(a)(37)(E)(ii) does for eligible news organizations, SBA is doing so here to harmonize the affiliation waiver for internet publishing organizations with the 300 employees per location size standard for Second Draw PPP Loans to internet publishing organizations.
Therefore, Part IV.(d)(2) of the interim final rule on second draw PPP loans (86 FR 3712, 3718) is revised by adding a new subsection (iii) to read as follows:
(iii) Any business concern or other organization that was not eligible to receive a covered loan before March 11, 2021, is assigned a NAICS code of 519130, certifies in good faith as an internet-only news publisher or internet-only periodical publisher, and is engaged in the collection and distribution of local or regional and national news and information, if the business concern or organization:
(A) Employs not more than 300 employees, per physical location of the business concern or organization; and
(B) is majority owned or controlled by a busines concern or organization that is assigned a NAICS code of 519130.
In order to implement the American Rescue Plan Act provision that allows businesses to receive both a Shuttered Venue Operator (SVO) Grant and a PPP loan, part IV.(e)(5) of the interim final rule on second draw PPP loans (86 FR 3712, 3719) is revised to read as follows:
An applicant is not eligible for a Second Draw PPP Loan, even if it meets the eligibility requirements of subsection (c) of this section, if the applicant is:
(5) any person or entity that has been approved for a grant under the Shuttered Venue Operator (SVO) Grant Program under
As noted above, the American Rescue Plan Act added affiliation waivers for certain eligible organizations with respect to PPP loans. To implement the additional affiliation waiver applicable to eligible internet publishing organizations, the parenthetical at the end of Part IV.(e)(7) of the interim final rule on second draw loans (86 FR 3712, 3719) is revised to include a reference to Part IV.(c)(6), which describes the conditions under which such internet publishing companies are eligible. Therefore, Part IV.(e)(7) of the interim final rule on second draw loans, as amended by this interim final rule, is revised to read as follows:
(7) Any issuer, the securities of which are listed on an exchange registered as a national securities exchange under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f), where the terms “exchange,” “issuer,” and “security” have the meanings given those terms in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)) (except that SBA will not consider whether a news organization that is eligible under subsection (c)(4) or an internet publishing organization that is eligible under subsection (c)(6) is affiliated with an entity, which includes any entity that owns or controls such news organization or internet publishing organization, that is an issuer);
Part III.B.14 of the consolidated interim final rule implementing updates to the PPP provides general information to borrowers on loan forgiveness. The consolidated interim final rule implementing updates to the PPP requires a revision to clarify certain forgiveness payroll cost exclusions included in the Economic Aid Act and to incorporate section 3134 of the Internal Revenue Code of 1986 (Internal Revenue Code) as added by section 9651 of the American Rescue Plan Act. Additionally, section 5001(c) of the American Rescue Plan Act revised the forgiveness payroll cost exclusions to include premiums taken into account in determining the credit allowed under section 6432 of the Internal Revenue Code. Therefore, the fourth full sentence in part III.B.14 of the consolidated interim final rule implementing updates to the PPP (86 FR 3692, 3706) reading “[p]ayroll costs that are qualified wages taken into account in determining the Employer Retention Credit are not eligible for loan forgiveness,” is revised to read “The following payroll costs are not eligible for loan forgiveness: (a) Qualified wages taken into account in determining (i) the Employee Retention Credit under section 2301 of the CARES Act, as amended by section 206 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Relief Act), (ii) the Employee Retention Credit under section 3134 of the Internal Revenue Code, or (iii) the disaster credit under section 303 of the Relief Act, and (b) premiums for COBRA continuation coverage taken into account in determining the credit under section 6432 of the Internal Revenue Code.”
Part IV.1 of the consolidated interim final rule on loan forgiveness requirements and loan review procedures sets forth general information about loan forgiveness for First Draw and Second Draw PPP Loans. The consolidated interim final rule on loan forgiveness requirements and loan review procedures requires revisions to clarify certain forgiveness payroll cost exclusions under the Economic Aid Act and revisions to incorporate the forgiveness payroll cost exclusions required by the American Rescue Plan Act. Part IV.1.a.(1) describes the payroll costs that are eligible for loan forgiveness and identifies those costs that are to be excluded. The second full sentence of part IV.1.a.(1), Payroll Costs (86 FR 8283, 8286), reading “[p]ayroll costs that are qualified wages taken into account in determining the Employer Retention Credit are not eligible for loan forgiveness,” is revised to read “The following payroll costs are not eligible for loan forgiveness: (a) Qualified wages taken into account in determining (i) the Employee Retention Credit under section 2301 of the CARES Act, as amended by section 206 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Relief Act) (CARES Act Employee Retention Credit), (ii) the Employee Retention Credit under section 3134 of the Internal Revenue Code of 1986 (ARP Employee Retention Credit), or (iii) the disaster credit under section 303 of the Relief Act (Disaster Credit), and (b) premiums for COBRA continuation coverage taken into account in determining the credit under section 6432 of the Internal Revenue Code of 1986 (COBRA Continuation Coverage).”
Part IV.1.b. of the consolidated interim final rule on loan forgiveness requirements and loan review procedures describes the amount eligible for loan forgiveness for individuals with self-employment income who file an IRS Form 1040, Schedule C or F. The last clause of part IV.1.b.i (86 FR 8283, 8287) is revised to read “but excluding any qualified wages taken into account in determining the CARES Act Employee Retention Credit, ARP Employee Retention Credit, or the Disaster Credit or premiums for COBRA Continuation Coverage.”
SBA may provide further guidance, if needed, through SBA notices that will be posted on SBA's website at
This interim final rule is economically significant for the purposes of Executive Orders 12866 and 13563. SBA, however, is proceeding under the emergency provision at Executive Order 12866 section 6(a)(3)(D) based on the need to move expeditiously to mitigate the current economic conditions arising from the COVID-19 emergency.
This rule is necessary to provide economic relief to small businesses and nonprofit organizations nationwide adversely impacted under the COVID-19 Emergency Declaration. We anticipate that this rule will result in substantial benefits to small businesses, nonprofit organizations, their employees, and the communities they serve. However, we lack data to estimate the effects of this rule.
The Administrator of the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) has determined that this is a major rule for purposes of Subtitle E of the Small Business Regulatory Enforcement and Fairness Act of 1996 (also known as the Congressional Review Act or CRA) (5 U.S.C. 804(2)
Notwithstanding this requirement, the CRA allows agencies to dispense with
The last day to apply for and receive a PPP loan is March 31, 2021. Given the short duration of this program, and the urgent need to issue loans quickly, SBA has determined that it is impractical and not in the public interest to provide a delayed effective date. An immediate effective date will give small businesses and nonprofit organizations affected by this interim final rule the maximum amount of time to apply for loans and lenders the maximum amount of time to process applications before the program ends.
SBA has drafted this rule, to the extent practicable, in accordance with the standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, to minimize litigation, eliminate ambiguity, and reduce burden. The rule has no preemptive or retroactive effect.
SBA has determined that this rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various layers of government. Therefore, SBA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.
SBA has determined that this rule will require revisions to existing recordkeeping or reporting requirements of the Paycheck Protection Program (PPP) information collections (OMB Control Numbers 3245-0407 and 3245-0417. The revisions will affect SBA Form 2483, Borrower Application Form Revised March 3, 2021, SBA Form 2483-C, Borrower Application Form for Schedule C Filers Using Gross Income March 3, 2021, SBA Form 2483-SD, Second Draw Borrower Application Form Revised March 3, 2021, SBA Form 2483-SD-C, Second Draw Borrower Application Form for Schedule C Filers Using Gross Income March 3, 2021, SBA Form 2484, Lender's Application—Paycheck Protection Program Loan Guaranty Revised March 3, 2021, SBA Form 2484-SD, Lender's Application—Second Draw Loan Guaranty Revised March 3, 2021,. SBA Forms 2483, 2483-C, 2483-SD, and 2483-SD-C were amended to include the additional eligible entities (where applicable) and revise the Shuttered Venue Operator Grant Program certification due to the changes made by the American Rescue Plan Act. Other clarifying changes were also made to the forms. Additionally, conforming changes were made to SBA Forms 2484 and 2484-SD.
SBA has requested Office of Management and Budget (OMB) emergency approval of the revisions to the information collections to give small businesses and nonprofits affected by this interim final rule the maximum amount of time to apply for loans and lenders the maximum amount of time to process applications before the program ends.
The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the Administrative Procedure Act or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the
Rules that are exempt from notice and comment are also exempt from the RFA requirements, including conducting a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. SBA Office of Advocacy guide: How to Comply with the Regulatory Flexibility Act, Ch.1. p.9. Since this rule is exempt from notice and comment, SBA is not required to conduct a regulatory flexibility analysis.
15 U.S.C. 636(a)(36); 15 U.S.C. 636(a)(37); 15 U.S.C. 636m; Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136, section 1114, Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Pub. L. 116-260), section 303, and American Rescue Plan Act of 2021, sections 5001 and 5005.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. This AD was prompted by a report that threaded fuel couplings were incorrectly installed at final assembly and in service. This AD requires repetitive functional tests of the auxiliary power unit (APU) fuel feed line shroud, a general visual inspection of the APU fuel feed line shroud for any loose couplings; and tightening any loose couplings, which would terminate the repetitive functional tests. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective April 26, 2021.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of April 26, 2021.
For service information identified in this final rule, contact Airbus Canada Limited Partnership, 13100 Henri-Fabre Boulevard, Mirabel, Québec J7N 3C6, Canada; telephone 450-476-7676; email
You may examine the AD docket on the internet at
Darren Gassetto, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7323; fax 516-794-5531; email
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-14, dated April 30, 2020 (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. You may examine the MCAI in the AD docket on the internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The NPRM published in the
The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. The Air Line Pilots Association, International (ALPA) stated that it supports the NPRM.
The FAA reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Airbus Canada has issued Service Bulletin BD500-282009, Issue 003, dated August 14, 2020. This service information describes procedures for repetitive functional tests of the APU fuel feed line shroud, a general visual inspection of the APU fuel feed line shroud for any loose couplings, and tightening of any loose couplings if necessary. The inspection and tightening of the APU fuel feed line shroud couplings terminates the repetitive functional tests of the APU fuel feed line shroud.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 22 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective April 26, 2021.
None.
This AD applies to Airbus Canada Limited Partnership (type certificate previously held by C Series Aircraft Limited Partnership (CSALP); Bombardier, Inc.) airplanes, certificated in any category, as identified in paragraphs (c)(1) and (2) of this AD.
(1) Model BD-500-1A10 airplanes, serial numbers 50010 through 50018 inclusive, and 50020 through 50041 inclusive.
(2) Model BD-500-1A11 airplanes, serial numbers 55003 through 55016 inclusive, 55018 through 55054 inclusive, and 55056.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by a report that threaded fuel couplings were incorrectly installed at final assembly and in service. The FAA is issuing this AD to address loose fuel couplings, which could eventually disconnect and could lead to fuel starvation of the auxiliary power unit (APU) and pose a risk of fire.
Comply with this AD within the compliance times specified, unless already done.
Within 4,000 flight hours after the effective date of this AD, do an initial functional test of the APU fuel feed line shroud, in accordance with Part A of the Accomplishment Instructions of Airbus Canada Service Bulletin BD500-282009, Issue 003, dated August 14, 2020. Thereafter, repeat the functional test at intervals not to exceed 4,000 flight hours. If any functional test reveals a leak, before further flight, do the applicable actions specified in paragraph (h) of this AD.
(1) Except as required by paragraph (g) of this AD: Within 9,350 flight hours or 56 months, whichever occurs first after the effective date of this AD: Do a general visual inspection of the APU fuel feed line shroud for any loose couplings, and tighten any loose couplings as applicable, in accordance with Part B of the Accomplishment Instructions of Airbus Canada Service Bulletin BD500-282009, Issue 003, dated August 14, 2020.
(2) For airplanes on which the inspection and tightening of the APU fuel feed line shroud couplings was done before the effective date of this AD, using Part B of the Accomplishment Instructions of Airbus Canada Service Bulletin BD500-282009, Issue 001, dated December 13, 2019: Within 9,350 flight hours or 56 months, whichever occurs first after the effective date of this AD, do a general visual inspection of the APU feed line shroud for any loose couplings between frame (FR) 63 and FR 80, and tighten any loose couplings as applicable, in accordance with Part C of the Accomplishment Instructions of Airbus Canada Service Bulletin BD500-282009, Issue 003, dated August 14, 2020.
The inspection and tightening of the APU fuel feed line shroud couplings as specified in paragraph (h) of this AD terminate the initial and repetitive functional tests of the APU fuel feed line shroud specified in paragraph (g) of this AD.
(1) This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Airbus Canada Service Bulletin BD500-282009, Issue 001, dated December 13, 2019, or Airbus Canada Service Bulletin BD500-282009, Issue 002, dated March 18, 2020, provided the functional test is repeated at intervals not to exceed 4,000 flight hours from the completion of those actions specified in paragraph (g) of this AD.
(2) This paragraph provides credit for actions required by paragraph (h)(1) of this AD, if those actions were performed before the effective date of this AD using Airbus Canada Service Bulletin BD500-282009, Issue 001, dated December 13, 2019.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) TCCA AD CF-2020-14, dated April 30, 2020, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Darren Gassetto, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7323; fax 516-794-5531; email
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Canada Service Bulletin BD500-282009, Issue 003, dated August 14, 2020.
(ii) [Reserved]
(3) For service information identified in this AD, contact Airbus Canada Limited Partnership, 13100 Henri-Fabre Boulevard, Mirabel, Québec J7N 3C6, Canada; telephone 450-476-7676; email
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Airbus SAS Model A330-200 Freighter series airplanes. This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This AD requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective April 26, 2021.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of April 26, 2021.
For material incorporated by reference (IBR) in this AD, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket on the internet at
Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229; email
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0190, dated August 27, 2020 (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI) (EASA AD 2020-0190), to correct an unsafe condition for all Airbus SAS Model A330-200 Freighter series airplanes, and Model A340-213 and -313 airplanes. EASA AD 2020-0190 refers to Airbus A330 Airworthiness Limitations Section (ALS) Part 1, Variation 10.2, dated June 29, 2020. Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after June 29, 2020 must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this AD therefore does not include those airplanes in the applicability.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-200 Freighter series airplanes. The NPRM published in the
The FAA is issuing this AD to address fatigue cracking, accidental damage, or corrosion in principal structural elements, and possible failure of certain life limited parts, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.
The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.
The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
EASA AD 2020-0190 describes new or more restrictive airworthiness limitations for airplane structures and safe life limits.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 6 airplanes of U.S. registry. The
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours x $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective April 26, 2021.
The AD affects AD 2018-23-14, Amendment 39-19501 (83 FR 60754, November 27, 2018) (AD 2018-23-14).
This AD applies to Airbus SAS Model A330-223F and -243F airplanes, certificated in any category, with an original airworthiness certificate or original export certificate of airworthiness issued on or before June 29, 2020.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address fatigue cracking, accidental damage, or corrosion in principal structural elements, and possible failure of certain life limited parts, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2020-0190, dated August 27, 2020 (EASA AD 2020-0190).
(1) The requirements specified in paragraph (1) of EASA AD 2020-0190 do not apply to this AD.
(2) Paragraph (2) of EASA AD 2020-0190 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, to incorporate the “limitations” specified in paragraph (2) of EASA AD 2020-0190 within 90 days after the effective date of this AD.
(3) The initial compliance time for doing the tasks specified in paragraph (2) of EASA AD 2020-0190 is on or before the applicable “limitations” specified in paragraph (2) of EASA AD 2020-0190, or within 90 days after the effective date of this AD, whichever occurs later.
(4) The provision specified in paragraph (3) of EASA AD 2020-0190 does not apply to this AD.
(5) The “Remarks” section of EASA AD 2020-0190 does not apply to this AD.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the revision required by this AD terminates the limitation for the nose landing gear lower torque link having part number D64001, as required by paragraph (g) of AD 2018-23-14, for Model A330-223F and -243F airplanes only.
The following provisions also apply to this AD:
(1)
(2)
(3)
For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2020-0190, dated August 27, 2020.
(ii) [Reserved]
(3) For EASA AD 2020-0190, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. This material may be found in the AD docket on the internet at
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain waters in the Potomac River. This action is necessary to provide for the safety of persons, property, and the marine environment from the potential safety hazards associated with construction operations at the new Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge, which will occur from 7 a.m. on March 22, 2021, through 9 p.m. on March 26, 2021. This rule will prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Maryland—National Capital Region or a designated representative.
This rule is effective from 7 a.m. on March 22, 2021, through 9 p.m. on March 26, 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 Mr. Ron Houck, Sector Maryland—NCR, Waterways Management Division, U.S. Coast Guard: telephone 410-576-2674, email
On March 16, 2021, Skanska-Corman-McLean, Joint Venture, notified the Coast Guard that from 7 a.m. on March 22, 2021, to 9 p.m. on March 26, 2021, it will be setting the tub sections at the new Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge at Pier 44, which is adjacent and to the east of the federal navigation channel. The operation requires using two large crane barges and other marine equipment positioned within the federal navigation channel. This operation will impede vessels requiring the use of the channel.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because construction operations, involving simultaneous crane heavy lifts, at the new Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge must occur within the federal navigation channel. Immediate action is needed to respond to the potential safety hazards associated with bridge construction. It is impracticable and contrary to the public interest to publish an NPRM because we must establish this safety zone by March 22, 2021.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP Maryland—National Capital Region has determined that potential hazards associated with bridge construction starting March 22, 2021, will be a safety concern for anyone within the federal navigation channel at the new Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge construction site. This rule is needed to
This rule establishes a safety zone from 7 a.m. on March 22, 2021, through 9 p.m. on March 26, 2021. The safety zone will cover all navigable waters of the Potomac River, encompassed by a line connecting the following points beginning at 38°21′50.96″ N, 076°59′22.04″ W, thence south to 38°21′43.08″ N, 076°59′20.55″ W, thence west to 38°21′41.80″ N, 076°59′29.90″ W, thence north to 38°21′49.70″ N, 076°59′31.40″ W, and east back to the beginning point, located between Charles County, MD and King George County, VA. The regulated area is approximately 300 yards in width and 270 yards in length.
This regulation requires that the bridge owner post a sign facing the northern and southern approaches of the navigation channel labeled “BRIDGE WORK—DANGER—STAY AWAY” affixed to the sides of the on-scene marine equipment and vessels operating within the area of the safety zone. This provides on-scene notice of the safety zone. This notice will consist of a diamond shaped sign (minimum 4 feet by 4 feet) with a 3-inch orange retro reflective border. The word “DANGER” will be 10 inch black block letters centered on the sign with the words “BRIDGE WORK” and “STAY AWAY” in 6 inch black block letters placed above and below the word “DANGER,” respectively, on a white background.
The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the tub sections are being set at the new Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge at Pier 44, which is adjacent and to the east of the federal navigation channel. Except for marine equipment and vessels operated by Skanska-Corman-McLean, Joint Venture, or its subcontractors, no vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
The COTP will notify the public that the safety zone will be enforced by all appropriate means to the affected segments of the public, as practicable, in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to, Broadcast Notice to Mariners. Vessels or persons violating this rule are subject to the penalties set forth in 46 U.S.C. 70036 (previously codified in 33 U.S.C. 1232) and 46 U.S.C. 70052 (previously codified in 50 U.S.C. 192).
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 size, duration, and the time-of-year of the safety zone. The bridge construction operations within the federal navigation channel are being conducted during the winter/non-peak season, when vessel transits in this area of the channel are infrequent. Vessel traffic not required to use the navigation channel will be able to safely transit around the safety zone. Such vessels may be able to transit to the west of the federal navigation channel, as similar vertical clearance and water depth exists under the next bridge span to the west. This safety zone will impact a small designated area of the Potomac River for approximately 110 hours, but coincides with the non-peak season for recreational boating.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety 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
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 110 total hours that will prohibit entry within a portion of the Potomac River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by telephone number 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz). Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
(f)
Environmental Protection Agency (EPA).
Final rule.
EPA is issuing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances which were the subject of premanufacture notices (PMNs). This action requires persons to notify EPA least 90 days before commencing manufacture (defined by statute to include import) or processing of any of these chemical substances for an activity that is designated as a significant new use by this rule. This action further requires that persons not commence manufacture or processing for the significant new use until they have submitted a Significant New Use Notice (SNUN), and EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken any risk management actions as are required as a result of that determination.
This rule is effective on May 21, 2021. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on April 5, 2021.
You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import provisions. This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA, which would include the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, pursuant to 40 CFR 721.20, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
The docket includes information considered by the Agency in developing the proposed and final rules. The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2020-0138, is available at
Due to the public health emergency, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
EPA is finalizing SNURs under TSCA section 5(a)(2) for chemical substances which were the subject of PMNs P-18-59, P-18-60, and P-18-381. These SNURs require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.
Previously, in the
TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four TSCA section 5(a)(2) factors listed in Unit III.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. Pursuant to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the
TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit. During its review of these chemicals, EPA identified certain conditions of use that are not intended by the submitters, but reasonably foreseen to occur. EPA is designating those reasonably foreseen conditions of use as well as certain other circumstances of use as significant new uses.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is
Under these procedures a manufacturer or processor may request EPA to determine whether a specific use would be a significant new use under the rule. The manufacturer or processor must show that it has a
If EPA determines that the use identified in the
EPA received public comments from two identifying entities on the proposed rule. The Agency's responses are described in a separate Response to Public Comments document contained in the public docket for this rulemaking. EPA made one change to a final rule as described in the document. EPA also received one anonymous comment. It was general in nature and did not pertain to the proposed rule; therefore, no response is required.
EPA is establishing significant new use and recordkeeping requirements for chemical substances in 40 CFR part 721, subpart E. In Unit IV. of the proposed SNUR, EPA provided the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).
• Basis for the SNUR.
• Potentially useful information.
• CFR citation assigned in the regulatory text section of this final rule.
The regulatory text section of these rules specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the rules, may be claimed as CBI.
During review of the PMNs submitted for the chemical substances that are the subject of these SNURs and as further discussed in Unit IV. of the proposed rule, EPA identified certain other reasonably foreseen conditions of use in addition to those conditions of use intended by the submitter. EPA has preliminarily determined that the chemical under the intended conditions of use is not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use. EPA is designating these conditions of use as well as certain other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without going through a separate, subsequent EPA review and determination process associated with a SNUN.
EPA is issuing these SNURs because the Agency wants:
• To have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.
• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.
• To be able to complete its review and determination on each of the PMN substances, while deferring analysis on the significant new uses proposed in these rules unless and until the Agency receives a SNUN.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at
To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule were undergoing premanufacture review at the time of signature of the proposed rule and were not on the TSCA inventory. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for the chemical substances subject to these SNURs EPA concluded at the time of signature of the proposed rule that the designated significant new uses were not ongoing.
EPA designated April 2, 2020 (the date of web posting of the proposed rule) as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach is to ensure that a person cannot defeat a SNUR by initiating a significant new use before the effective date of the final rule.
Persons who began commercial manufacture or processing of the chemical substances for a significant new use identified on or after that date will have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and EPA would have to take action under TSCA section 5 allowing manufacture or processing to proceed.
EPA recognizes that TSCA section 5 does not require development of any
In the absence of a rule, Order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. of the proposed rule lists potentially useful information for all SNURs listed here. Descriptions are provided for informational purposes. The potentially useful information identified in Unit IV. of the proposed rule will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN.
EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol election. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h).
The potentially useful information described in Unit IV. of the proposed rule may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket for this rulemaking.
Additional information about these statutes and Executive orders can be found at
This action establishes SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
According to PRA, 44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Regulatory Support Division, Office of Mission Support (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
Pursuant to RFA section 605(b), 5 U.S.C. 601
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action will not have federalism implications because it is not expected to have a substantial direct effect on 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action will not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 (65 FR 67249, November 9, 2000), do not apply to this action.
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).
This action is subject to the CRA (5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
This document was received for publication by the Office of the Federal Register on March 2, 2021.
Therefore, for the reasons stated in the preamble, 40 CFR chapter I is amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(3)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to withdraw the remaining portion of a Federal Implementation Plan (FIP) for Arkansas that was published in the
This final rule will be effective April 21, 2021.
The EPA has established a docket for this action under Docket No. EPA-R06-OAR-2015-0189. All documents in the docket are listed at the
James E. Grady, Air and Radiation Division, Environmental Protection
Throughout this document “we,” “us,” or “our” mean “the EPA.”
Arkansas submitted a SIP revision on September 9, 2008, to address the requirements of the first regional haze implementation period. On August 3, 2010, Arkansas submitted a SIP revision with mostly non-substantive revisions to Arkansas Pollution Control and Ecology Commission (APCEC) Regulation 19, Chapter 15.
Following the issuance of the Arkansas Regional Haze FIP, the State of Arkansas and several industry parties filed petitions for reconsideration and a motion for an administrative stay of the final rule.
EPA also published a document in the
On August 8, 2018, Arkansas submitted another SIP revision (Arkansas Regional Haze SO
On August 13, 2019, Arkansas submitted the Arkansas Regional Haze Phase III SIP (Phase III SIP revision). This SIP revision contains a BART alternative to address BART and the associated long-term strategy requirements for two subject-to-BART sources (Power Boilers No. 1 and 2) at the Domtar Ashdown Mill located in Ashdown, Arkansas. The BART alternative addresses SO
The background for this final rule and the separate final action also being published in this issue of the
We are withdrawing the remaining portion of the Arkansas Regional Haze FIP that we promulgated on September 27, 2016, found at 40 CFR 52.173(c). Specifically, we are withdrawing provisions addressing applicability and definitions of the FIP; SO
As explained in our March 16, 2020 proposal,
We received two comment letters concerning our proposed action, which included our proposed approval of the Phase III SIP revision, proposed approval of the visibility transport portions of the Arkansas Regional Haze Phase II SIP revision and the Arkansas 2015 O
Additional information about these statutes and Executive Orders can be found at
This action is exempt from review by the Office of Management and Budget (OMB) because it will withdraw a FIP containing source-specific SO
This action does not impose an information collection burden under the provisions of the PRA. Burden is defined at 5 CFR 1320.3(b). This final rule withdraws a FIP containing source-specific SO
I certify that this final action will not have a significant economic impact on a substantial number of small entities under the RFA. This final action will not impose any requirements on small entities. This final action withdraws a FIP containing source-specific SO
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because the FIP we are withdrawing does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has
Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d), as it revises a FIP under CAA section 110(c).
This rule is exempt from the CRA because it is a rule of particular applicably. EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability that only affects one individually identified facility in Arkansas.
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 21, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Best available retrofit technology, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate Matter, Regional haze, Reporting and recordkeeping requirements, Sulfur Dioxide, Visibility.
Title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
2. In § 52.173, remove and reserve paragraph (c).
Environmental Protection Agency (EPA).
Final rule.
Pursuant to the Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is finalizing approval of a revision to the Arkansas State Implementation Plan (SIP) submitted by the State of Arkansas through the Arkansas Department of Energy and Environment, Division of Environmental Quality (DEQ) on August 13, 2019. The SIP submittal addresses requirements of the Act and the Regional Haze Rule for visibility protection in mandatory Class I Federal areas (Class I areas) for the first implementation period. The EPA is approving an alternative measure to best available retrofit technology (BART) at the Domtar Ashdown Mill for sulfur dioxide (SO
This rule is effective on April 21, 2021.
The EPA has established a docket of all documents for this action at
James E. Grady, EPA Region 6 Office, Regional Haze and SO
Throughout this document “we,” “us,” and “our” mean the EPA.
Regional haze is visibility impairment that is produced by a multitude of sources and activities that are located across a broad geographic area and emit fine particulates (PM
Data from the existing visibility monitoring network, “Interagency Monitoring of Protected Visual Environments” (IMPROVE), shows that visibility impairment caused by air pollution occurs virtually all of the time at most national parks and wilderness areas. In 1999, the average visual range
In section 169A, enacted as part of the 1977 CAA Amendments, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the remedying of any existing, visibility impairment in mandatory Class I Federal areas where impairment results from manmade air pollution. Congress added section 169B to the CAA in 1990, which strengthened the visibility protection program of the Act, and the EPA promulgated final regulations addressing regional haze as part of the 1999 Regional Haze Rule, which was most recently updated in 2017.
Section 169A(b)(2)(A) of the CAA directs states to evaluate the use of BART controls at certain categories of existing major stationary sources built between 1962 and 1977.
A State may opt to implement or require participation in an emissions trading program or other alternative measure rather than require sources subject-to-BART to install, operate, and maintain BART. Such an emissions trading program or other alternative measure must achieve greater reasonable progress than would be achieved through the installation and operation of BART. In order to demonstrate that the alternative program achieves greater reasonable progress than source-specific BART, a state must demonstrate that its SIP meets the requirements in 40 CFR 51.308(e)(2)(i) to (iv). Among other things, the state must conduct an analysis of BART and the associated reductions for each source subject-to-BART covered by the alternative program, and compare the reductions and visibility improvements of the alternative program to what would have been achieved by BART.
Pursuant to 40 CFR 51.308(e)(2)(i)E), the state must provide a determination under 40 CFR 51.308(e)(3) or otherwise based on the “clear weight of evidence” that the alternative measure achieves greater reasonable progress than BART. 40 CFR 51.308(e)(3) provides two specific tests applicable under specific circumstances for determining whether the alternative measure achieves greater reasonable progress than BART. Under the first test, if the distribution of emissions is not substantially different than under BART, and the alternative measure results in greater emission reductions, then the alternative measure may be deemed to achieve greater reasonable progress. Under the second test, if the distribution of emissions is significantly different, then the State must conduct dispersion modeling to determine the difference in visibility between BART and the alternative measure for each impacted Class I area, for the twenty percent best and worst days. The modeling would demonstrate greater reasonable progress if both of the following two criteria are met: (i) Visibility does not decline in any Class I area, and (ii) there is an overall improvement in visibility, determined by comparing the average difference between BART and the alternative over all affected Class I areas.
Alternatively, under 40 CFR 51.308(e)(2)(i)(E), states may show based on the “clear weight of evidence” that the alternative achieves greater reasonable progress than would be achieved through the installation and operation of BART at the covered sources. As stated in the EPA's revisions to the Regional Haze Rule governing alternatives to source-specific BART determinations, weight of evidence demonstrations attempt to make use of all available information and data which can inform a decision while recognizing the relative strengths and weaknesses of that information in arriving at the soundest decision possible.
Finally, under 40 CFR 51.308(e)(2)(iii) and (iv), all emission reductions for the alternative program must take place during the period of the first long-term strategy for regional haze, and all the emission reductions resulting from the alternative program must be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP.
In addition to BART requirements, 40 CFR 51.308(d)(3)(i) to (iv) requires each state to include in its SIP a long-term strategy for the planning period that addresses regional haze visibility impairment for each Class I area located within the state and outside the state that may be affected by emissions generated from within the state. The long-term strategy is the vehicle for ensuring continuing reasonable progress toward achieving natural visibility conditions. It is a compilation of all control measures in the SIP that a state will use during the implementation period to meet the applicable reasonable progress goals (RPGs) established under 40 CFR 51.308(d)(1) for each Class I
The State of Arkansas submitted a regional haze SIP on September 9, 2008, intended to address the requirements of the first regional haze implementation period. On August 3, 2010, the State submitted a SIP revision with mostly non-substantive changes that addressed Arkansas Pollution Control and Ecology Commission (APCEC) Regulation 19, Chapter 15.
Following petitions for reconsideration and administrative stay submitted by the State, industry, and ratepayers, on April 14, 2017,
The State submitted its Phase II SIP revision (the Arkansas Regional Haze SO
On August 13, 2019, DEQ submitted the Arkansas Regional Haze Phase III SIP revision (Phase III SIP revision), which we are finalizing approval of in this action. This submittal contains an alternative measure to address BART and the associated long-term strategy requirements for two subject-to-BART sources (Power Boilers No. 1 and 2) at the Domtar Ashdown paper mill located in Ashdown, Arkansas. Power Boiler No. 1 was first installed in 1967-1968. At the time of SIP submittal and our proposed approval, the unit was permitted to burn only natural gas.
DEQ's original BART analyses and determinations (dated October 2006 and March 2007) for Power Boilers No. 1 and 2 were included in the 2008
DEQ submitted its third corrective regional haze SIP submittal to the EPA on August 13, 2019, which is the subject of this final action (the Arkansas Regional Haze Phase III SIP revision). The Phase III SIP revision includes Domtar's BART alternative approach and revises all of the prior BART determinations for Power Boilers No. 1 and 2 at the Ashdown Mill. The Phase III SIP submittal also incorporates plantwide provisions from the August 1, 2019, permit including emission limits and conditions for implementing the BART alternative.
We are also addressing the interstate visibility transport element required under CAA section 110(a)(2)(D)(i)(II) in this final action from multiple SIP revisions for several NAAQS. Sections 110(a)(1) and (2) of the CAA direct each state to develop and submit to the EPA a SIP that provides for the implementation, maintenance, and enforcement of a new or revised NAAQS.
• Contributing significantly to nonattainment of the NAAQS in another state (prong 1);
• Interfering with maintenance of the NAAQS in another state (prong 2);
• Interfering with measures that prevent significant deterioration of air quality in another state (prong 3); and
• Interfering with measures that protect visibility in another state (prong 4 or “visibility transport”).
We are only addressing the prong 4 element in this final approval. The prong 4 element is consistent with the requirements in the regional haze program, which explicitly require each state to address its share of emission reductions needed to meet the RPGs for surrounding Class I areas. The EPA most recently issued guidance that addressed prong 4 on September 13, 2013.
On March 24, 2017, the State submitted a SIP revision that addressed all four infrastructure prongs from section 110(a)(2)(D)(i) for the 2008 lead (Pb) NAAQS, the 2006 and 2012 PM
On March 16, 2020, we published a Notice of Proposed Rulemaking (NPRM)
The EPA also proposed to approve in its NPRM Arkansas' interstate visibility transport provisions from the August 8, 2018, regional haze Phase II SIP submittal as supplemented by the visibility transport provisions in the October 4, 2019, interstate transport SIP submittal, which cover the following six NAAQS: The 2006 24-hour PM
The public comment period for the NPRM closed on April 15, 2020. We received two sets of public comments concerning our proposed action. The comments are included in the publicly posted docket associated with this action at
As explained in the proposed action, the BART alternative would result in an overall decrease in SO
We explained in our proposed action that greater visibility improvement occurs because Domtar's baseline NO
The State's weight of evidence analysis of visibility improvement in the SIP was supported by our analysis of various metrics, which reinforced that the BART alternative achieves greater reasonable progress. We analyzed the pollutant species contribution to visibility impacts at the Class I areas from each power boiler. Specifically, for Power Boiler No. 1, baseline modeled nitrate (NO
The State's weight of evidence analysis of emission reductions and visibility improvement (using the 98th percentile metric) as complemented by our analysis of different metrics, justify our approval of the State's determination that the BART alternative achieves greater reasonable progress than BART under 40 CFR 51.308(e)(2)(i)(E). The State followed the prescribed process for determining the level of control required for the BART alternative for the Domtar Ashdown Mill and adequately supported its determination with analysis that meets the requirements under section 40 CFR 51.308(e)(2).
The BART alternative results in larger reductions in NO
The Arkansas Regional Haze Phase III SIP revision and concurrent withdrawal of the corresponding parts of the FIP pertaining to Domtar will also not reverse course from the prior FIP with respect to the separate reasonable progress requirements for Arkansas. As mentioned in section IV of our proposed action, we determined in our September 27, 2019 Arkansas Regional Haze SO
Pursuant to 40 CFR 51.308(e)(2)(i)(E), the state must provide a determination under 40 CFR 51.308(e)(3) or otherwise based on “clear weight of evidence” that the alternative measure achieves greater reasonable progress than BART. The State relied on a modeling analysis to determine if the BART alternative could be shown to make greater reasonable progress than BART, but that modeling was different than the modeling described under 40 CFR 51.308(e)(3). The State used an air quality modeling methodology approach using the maximum 98th percentile visibility impact of three modeled years using the CALPUFF model instead of modeled overall visibility conditions for the twenty percent best and worst days, as would be required under 40 CFR 51.308(e)(3). The State's approach could be considered a modified version of the two-part modeling test under 40 CFR 51.308(e)(3) and is more appropriate to classify under the weight of evidence analysis approach instead allowed under 40 CFR 51.308(e)(2)(i)(E).
The State's methodology and analysis under the clear weight of evidence test is reasonable. The State's CALPUFF modeling approach utilizing the 98th percentile visibility impacts is consistent with the approach recommended by the BART guidelines
CALPUFF is a single source air quality model that is recommended in the BART Guidelines. Since CALPUFF was used for this BART alternative analysis, the modeling results were post-processed in a manner consistent with the BART guidelines. This approach is, therefore, acceptable and reasonable for the comparison of the proposed BART alternative to the FIP BART determination for Domtar since it is the same modeling used to determine BART in the FIP, and the BART alternative is focused on only the BART sources at Domtar. The State also considered two methods of modeling evaluation provided by Domtar for this approach of using the maximum 98th percentile visibility impact. Method 1 assessed visibility impairment on a per source per pollutant basis and method 2 allowed for interaction of the pollutants from both boilers. The State followed the same general CALPUFF modeling protocol and used the same meteorological data inputs for the BART alternative assessment as discussed in Appendix B to the FIP TSD. Only the modeled emission rates changed to represent the modeled scenarios for each method.
DEQ determined that the visibility benefits as measured under method 2 and the previous FIP BART determination formed an appropriate BART benchmark for the purposes of the evaluation of Domtar's BART alternative. We continue to agree with DEQ that because method 2 provides for the full chemical interaction of emissions from both power boilers, method 2 analysis results are a reliable assessment of the anticipated overall visibility improvement of controls utilizing the 98th percentile impact. Under the weight of evidence approach, we made use of all available information and data which could inform our decision while recognizing the relative strengths and weaknesses of that information in arriving at the soundest decision possible.
As explained in response to comment A.1 in section III.A of this final action, we evaluated DEQ's analysis and additional model results (relying primarily on the analysis of the 98th percentile impacts),
To the extent the commenter is asserting that the emissions comparisons alone cannot be used as even one part of a weight of evidence demonstration, the commenter is mistaken in how a “weight of evidence” analysis is conducted. The term “weight” connotes that multiple pieces of evidence are brought together and analyzed as a whole.
Regarding the use of CALPUFF, we did not suggest that CALPUFF was replacing CAMx under 40 CFR 51.308(e)(3). We logically examined the two-part analysis under 40 CFR 51.308(e)(3) in the proposed action to show how the State arrived at classifying the approach as a weight of evidence approach. Our choice of using the term “modified” to describe the relationship of this analysis to the two-part test under 40 CFR 51.308(e)(3) was intended to describe how the State's approach was similar to 40 CFR51.308(e)(3) in considering distribution of emissions and visibility improvements using modeling, but different from 40 CFR 51.308(e)(3) because the analysis based on the CALPUFF modeling focused on the 98th percentile visibility impacts instead of the twenty percent best and worst days required by 40 CFR 51.308(e)(3). Therefore, the State's weight of evidence analysis is acceptable under 40 CFR 51.308(e)(2)(i)(E) and should not be judged according to 40 CFR 51.308(e)(3). The commenter's objection to 40 CFR 51.308(e)(3) not being met is immaterial since the weight of evidence approach followed in the SIP submittal does not fall under 40 CFR 51.308(e)(3) but under 40 CFR 51.308(e)(2)(i)(E).
The commenter states that EPA is wrong to consider CALPUFF as acceptable just because it “is consistent with the approach recommended by the BART guidelines for comparing different control options at a single source when developing BART determinations relying on the 98th percentile visibility impact as the key metric.” The commenter points out that a comparison of control options at a single source compares changes in the emission reductions in one pollutant,
EPA recognizes that the CALPUFF model includes simplified chemistry to account for interactions between pollutants. The simplified chemistry tends to magnify the actual visibility effects of a single source; thus, it is appropriate to use the 98th percentile to avoid overprediction and not give undue weight to the extreme tail of the distribution. This approach will effectively capture the sources that contribute to visibility impairment in a Class I area, while minimizing the likelihood that the highest modeled visibility impacts might be caused by unusual meteorology or conservative assumptions in the model.
The EPA has previously recognized this approach of using CALPUFF as an acceptable approach in the past when analyzing BART alternatives that only include emission reductions at a single or small group of BART sources. Specifically, we approved this approach for the State of Arizona which established a BART alternative for Steam Units 2 and 3 at Arizona Electric Power Cooperative's Apache Generating Station.
The commenter states that the FIP considered each pollutant separately, whereas the alternative attempts to analyze and take credit for combined emission reductions from three pollutants, which allegedly fails to assess the effect of the alternative on visibility as compared to BART. The commenter is incorrect in their premise. The CALPUFF modeling in the FIP evaluated each unit separately, but modeled the visibility impacts from all pollutants from that unit. For example, in evaluating the visibility benefit from NO
For these reasons, we disagree that the modeling data was of insufficient quality and failed to meet the requirements of the regulations.
We disagree with the assertion that we are supporting the source's preferred control outcome instead of addressing emissions cumulatively across all Class I areas. The commenter points out that the court in
In this action, by contrast, both the State and EPA have evaluated the cumulative visibility impacts across all of the affected Class I areas. The State considered this with both of its methods of analysis, and EPA coupled those results with our own analysis of cumulative visibility improvement. DEQ first included an analysis utilizing method 1 that shows that the BART alternative controls achieve greater overall cumulative reductions in visibility impairment from the baseline cumulatively across the four Class I areas when compared to BART (0.549 Δdv for the alternative versus 0.473 Δdv for BART). DEQ also determined using method 2 that the BART alternative controls reduce the overall cumulative visibility impairment from the baseline by 0.520 Δdv, which is greater than the overall visibility improvement modeled under BART, which is 0.516 Δdv. We complemented the State's analysis by comparing the average visibility impact across the top ten highest impacted days at each Class I area (average 8th to 17th highest). This analysis provided a broader look at those days with the highest impacts at each Class I area. The results were consistent with the State's analysis based on the 98th percentile day, which was selected as representative of the highest impact (
The commenter argues that EPA “fails to provide a basis for applying the 0.5 deciview threshold used by the State to determine if a source contributes to visibility impairment at a Class I area with the BART alternative analysis,” noting that numerous BART determinations relied on lower deciview thresholds that resulted in significant emission reducing outcomes. The meaning of this comment is not clear. EPA did not apply a 0.5 deciview threshold to cut off its evaluation of other Class I areas. However, it is reasonable to provide additional analysis when one Class I area is much more heavily impacted by a source than others. In the case of Domtar, the baseline visibility impacts at Caney Creek are much larger than impacts at the other Class I areas, so it is reasonable to give greater weight to visibility benefits at Caney Creek resulting from the alternative as compared to BART. The level of visibility benefit from controls at the other three Class I areas are smaller than those at Caney Creek, and the baseline visibility impacts of the source at these areas was well below the 0.5 dv threshold used by the State to determine if a source contributes to visibility impairment at a Class I area. In making this observation, we do not categorically dismiss or ignore impacts to other Class I areas below 0.5 or any other threshold. We simply note that the changes in visibility at these other Class I areas were individually very small and collectively smaller than the comparative gain in visibility achieved by the BART alternative at Caney Creek.
The commenter mentioned that Congress provided no authority for EPA to treat one Class I area differently from others. As mentioned previously, we treated all Class I areas the same and measured the cumulative visibility impacts across all of them using multiple metrics. We specifically analyzed the effects at Caney Creek, since it is the Class I area impacted the most. But that analysis does not show favoritism and merely provides one metric for interpreting how impacts are correlated to overall emissions from the source at each Class I area.
In response to the commenter's concerns, EPA has further evaluated conditions 35 and 42 to determine whether they provide adequate bounding, allowing EPA to assess the provisions for compliance with applicable requirements and the potential impacts that could result from DEQ's potential exercise of the discretion to authorize alternative monitoring. In support of EPA's proposed approval of plantwide conditions 35 and 42 into the Arkansas SIP, DEQ provided additional information in a letter (dated December 3, 2020) to EPA to clarify the process and standards that the State shall follow and apply to approve the use of any alternative method under plantwide conditions 35 and 42 of the Domtar permit.
For Power Boiler No. 2, which currently relies on a continuous emissions monitoring system (CEMS) to monitor SO
With respect to any request for alternative sampling or monitoring methods for PM
DEQ explained in its letter that it expects that Domtar will work with both DEQ and EPA in the development of equivalent testing protocols before seeking approval from DEQ (with EPA concurrence) and before performing the equivalency testing. The alternate sampling or monitoring protocol submittal to DEQ must contain EPA's official letter of documented recommendations and concurrence, as required for DEQ approval. Although not the same as EPA approval of an alternative sampling or monitoring requirement through a SIP revision, in the case of a valid director's discretion provision that is already adequately bounded, EPA considers the inclusion of consultation with EPA an extra measure of assurance that any such alternative will be appropriate. Given the process that DEQ will follow and standards that DEQ will apply in evaluating any potential alternative (and EPA's consultation in the process) EPA anticipates that DEQ's exercise of its well bounded discretion to authorize alternative sampling or monitoring will not result in adverse impacts,
Based on the information contained in DEQ's December 3, 2020, letter which forms a critical part of the record basis for EPA's approval of this submittal, EPA has determined that conditions 35 and 42 as supplemented by the letter are adequately bounded director's discretion provisions. In particular, EPA agrees with DEQ that the criteria in 40 CFR part 75, subpart E for SO
For these reasons, these permit provisions are consistent with the requirements of CAA sections 110(i), 110(l) and 110(k)(3).
The commenter also states that permit condition 40 fails to identify the specific AP-42 emission factors. Condition 40 refers to “the applicable natural gas AP-42 emission factors” and provides an appropriate description because the applicable emission factors are based on the nature of the emissions unit, fuel, and pollutants in question. As explained in the proposed approval,
The State made clear in its SIP submittal that the BART alternative SIP requirements for this source would be implemented in conjunction with preexisting SIP requirements for monitoring, reporting, and
The commenter lastly mentioned that these conditions fail to require that “owners and operators” are subject to the provisions in them. We address this in response to comment B.5 in section III.B of this final action. As mentioned in that response, we recognize Domtar as both the permittee and the owner subject to the permit conditions. Further, because the permit conditions are being incorporated into the state's SIP, they are state- and federally-enforceable on any owner or operator of this facility regardless of any changes that may occur in ownership of the facility or in the permit itself. Therefore, Domtar and any future owner or operator is subject to the provisions being approved in this action, including conditions 36 and 43, and DEQ will continue to enforce these measures with EPA oversight.
Further, other SIP-approved provisions of Arkansas' regulations also apply, ensuring the reporting obligations of 51.211 and the BART-alternative implementation measures of 51.308(e)(2)(iii) are satisfied. The commenter mentions that the SIP lacks any requirements for reporting, but that is not the case. APCEC Rule 19 Chapter 7—Sampling, Monitoring and Reporting Requirements, sets forth the powers of DEQ in requiring sampling, monitoring, and reporting requirements at stationary sources.
It is also worth noting that as a source subject to Title V requirements, it is subject to annual deviation reports under APCEC Rule 26.703(E)(3)(c). In addition, as a major source it is required to provide an annual emissions inventory. EPA finds that the reporting requirements applicable to Domtar under this SIP submittal are sufficient to meet the requirements of the BART alternative regulations and subpart K.
In addition, these requirements would not cease to apply if Domtar were for any reason to cease to be the permittee. Although “permittee” is being used in the wording of the permit conditions, these conditions are being approved into the State's SIP and are state- and federally-enforceable by virtue of being in the SIP. As the State's SIP submittal explains,
Therefore, the provisions in conditions 32 and 33 and in other provisions addressing ownership will continue to be enforceable requirements, regardless of who owns or operates this facility, and DEQ and EPA will continue to be able to enforce these measures. We, therefore, disagree that these conditions need to place requirements on the “owners and operators” rather than the “permittee” to be permanently enforceable.
The commenter argues that certain permit conditions cross-reference test methods in other regulations (
Further, the State made clear which test methods from those regulations are required for demonstrating compliance with these conditions. With respect to condition 38's reference to 40 CFR 60, the requirement to use CEMS to demonstrate compliance for SO
The commenter particularly notes that because the permit conditions do not reference specific sections in these regulations, it is unclear whether the startup, shutdown, and malfunction emissions are included or exempt from monitoring. The commenter does not establish with reasonable specificity which of the performance testing or monitoring requirements from part 60 or part 63 would be affected here by provisions in those parts relating to “startup, shutdown, and malfunction.” Also, Table 10 to subpart DDDDD of Part 63 shows that SSM plan requirements and actions taken to minimize emissions during startup, shutdown, or malfunction are not required for subpart DDDDD.
The commenter lastly mentions that the State's SIP fails to include the schedule and timetable for compliance. We address comments regarding the schedule and timetable for compliance in response to comment C.1 in section III.C of this final action. These new BART alternative limits became enforceable by the State immediately upon issuance of a minor modification letter sent by the State to Domtar on February 28, 2019. The two Domtar power boilers have already been operating at emission levels below the proposed BART alternative emission limits since December 2016, three years before the limits became enforceable, continuing to do so through February 2019 and up to the present. The BART alternative limits and all associated permit conditions will become federally enforceable upon the effective date of this final action approving the SIP.
The commenter also claims that permit condition 41 fails to identify which specific test methods found in 40 CFR 63 subpart DDDDD would apply. We disagree with this statement. Although the revised permit condition 41 does not spell out specific test methods, that does not mean it is not clear which test methods apply. In regard to 40 CFR 63 DDDDD, boiler MACT test methods are quite detailed and specific and are based on the source-specific unit type and pollutant emissions to be tested. It is clear from the pollutant, fuel type, and the nature of the emission unit here which of the tests would apply under DDDDD. Therefore, there is sufficient information to determine compliance. Table 10 to subpart DDDDD of Part 63 shows the applicable general provisions and includes performance testing requirements in 40 CFR 63.7.
Finally, the commenter mentions that this provision fails to identify what entity is required to meet these requirements (
First, the SIP includes APCEC Regulation 19.701—Purpose, which states, “The purpose of this chapter is to generally define the powers of the Department in requiring sampling, monitoring, and reporting requirements at stationary sources. The Department shall enforce all properly incorporated and delegated federal testing requirements at a minimum. Any credible evidence based on sampling, monitoring, and reporting may be used to determine violations of applicable emission limitations” Similarly, general provision #27 of the Domtar permit provides that, “Any credible evidence based on sampling, monitoring, and reporting may be used to determine violations of applicable emission limitations. [Reg.18.1001, Reg.19.701, Ark. Code Ann. § 8-4-203 as referenced by Ark. Code Ann. §§ 8-4-304 and 8-4-311, and 40 CFR 52 Subpart E]” Lastly, the Credible Evidence Revisions rule revised 40 CFR parts 51, 52, 60, and 61 to permit the use of any credible evidence (
The commenter argues that there is nothing in the SIP that demonstrates the monitoring, recordkeeping, and reporting requirements applied to the source during the first planning period. First, 40 CFR 51.308(e)(2)(iii) does not impose this requirement and neither does any other provision of the BART alternative regulations. Rather, in order to demonstrate that BART alternative emission limits are being achieved by the end of the first planning period, “the State must provide a detailed description of the emissions trading program or other alternative measure, including schedules for implementation, the emission reductions required by the program, all necessary administrative and technical procedures for implementing the program, rules for accounting and monitoring emissions, and procedures for enforcement.”
In particular, the compliance documentation included a letter dated December 20, 2018, submitted to DEQ by Domtar,
In addition to being in compliance before the first implementation period ended, Domtar submitted additional letters to DEQ showing continued compliance for both power boilers. The letters contained CEMS emission data from January 2018 to April 2019.
The commenter argues that there are no compliance dates in the SIP that show that the emission limitations were enforceable in the first planning period. This is not required by EPA's regulations, as explained above. In addition, there is no schedule for future compliance because the source is already complying with the emission limits which are already in place and enforceable through the State permit. Upon the effective date of this final action the emission limits (and associated requirements) will be federally enforceable. These provisions have never been administratively or judicially stayed, are currently in effect, and will remain in effect; the source has been compliant with those requirements. We note with respect to the SO
For these reasons, the State's BART alternative SIP revision for Domtar Ashdown Mill meets the provisions of 40 CFR 51.308(e)(2)(iii): It documents that the required reductions took place during the period of the first long-term strategy (
Under CAA Section 110(l), the EPA cannot approve a plan revision “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of this chapter.”
A state, instead of submitting an air quality analysis showing that the revision will not interfere with any applicable requirement, may substitute equivalent emissions reductions to compensate for any change to a plan to ensure actual emissions to the air are not increased and thus preserve status quo air quality. Equivalent emissions reductions are reductions that are equal to or greater than those reductions achieved by the control measure approved into the plan. To show that compensating emissions reductions are equivalent, adequate justification must be provided. The compensating, equivalent reductions should represent actual emissions reductions achieved in a contemporaneous time frame to the change of the existing control measure in order to preserve the status quo air quality. In addition to being contemporaneous, the equivalent emissions reductions should also be permanent, enforceable, quantifiable, and surplus. A showing that the substitute measures preserve status quo air quality is generally sufficient to demonstrate noninterference through this alternative approach.
As an initial matter, the commenter misstates the EPA's interpretation of CAA section 110(l). Neither EPA nor any court has concluded, as the commenter asserts, that plan revisions are permissible only if emissions to the air are not increased. The case cited by the commenter,
The Seventh Circuit decision mentioned by commenter—
The Ninth Circuit decision commenters cite—
The more stringent SO
The commenter states that EPA's proposal fails to explain and provide information regarding what areas it assessed and the basis for its assessment. With respect to regional haze requirements, we disagree with the commenter. We explained in the proposal that we considered all Class I areas in Arkansas and also considered those in Missouri, which is the only State that was determined to potentially be impacted by sources from within Arkansas for the first implementation period. Missouri is currently not relying on emission reductions from Domtar in its regional haze plan.
Further, there are no PM
The commenter argues that DEQ addressed the reasonable progress requirements under 40 CFR 51.308(d)(1) based on faulty analysis that the BART alternative for Domtar is approvable. We addressed objections to the BART alternative under 40 CFR 51.308(e) in section III.A of this final action and explained why the BART alternative provides greater reasonable progress for regional haze. We also explained how the reasonable progress requirements for regional haze under 40 CFR 51.308(d)(1) are being met, and found that reasonable progress was not impacted by the transition from the BART FIP requirements to the BART alternative at Domtar. Therefore, the BART alternative does not interfere with “reasonable progress” under the Regional Haze Rule as an “other CAA requirement” that could be affected under CAA 110(l).
The commenter mentioned that EPA's analysis only considers regional haze and the NAAQS, and not the other CAA requirements, for example, PSD increments. The commenter asserts that, for this reason also, EPA fails to demonstrate that withdrawing the FIP and approving the State's SIP complies with Section 110(l) of the Act. EPA did not evaluate PSD increments in the proposal for two reasons: (1) Both power boilers were in operation before the major source baseline trigger dates for all three pollutants with increments (SO
The conversion of Power Boiler No. 1 to burn only natural gas was an increment expanding change. For the purpose of overall increment analysis, we evaluated the emissions of Power Boiler No. 1 prior to the conversion of only burning natural gas as these emissions were part of the pre-BART baseline. As can be seen in Table 1, the annual emission limits (tpy) for the Arkansas BART alternative are less than the Arkansas baseline actual emissions for SO
As can be seen in Table 2, the short-term emission limits (pph) for the Arkansas BART alternative are less than the previously permitted limits, the Arkansas baseline (2001-2003 actual emissions), and the BART FIP baseline emissions (mixture of 2001-2003 and 2009-2011 actual emissions) for SO
As discussed above, EPA's technical documentation shows that approval of the Arkansas SIP submittal is not prohibited under CAA section 110(l). As also explained above, CAA section 110(l) does not prohibit states from submitting a SIP less stringent than a FIP or replacing a SIP with a less stringent SIP. Even though the requirements adopted in the SIP revision here do not match the emissions limitations in the FIP, there is no expectation that approval of the SIP will interfere with attainment or maintenance of the NAAQS or any other requirements under the Act.
As to the first basis for approval, the Arkansas Regional Haze NO
As an alternative basis for approval of Arkansas' CAA section 110(a)(2)(D)(i)(II) prong 4 SIP submittals, EPA finds that DEQ provided an adequate demonstration that it is not interfering with other states' visibility programs in the Arkansas 2015 O
For these reasons, Arkansas has fulfilled its prong 4 visibility transport requirements for the 2006 24-hour PM
The commenter's objections to EPA approving reasonable progress requirements have been addressed in previous responses in this document.
• At 14851, middle column about two-thirds of the way down, referring to Power Boiler 1: `It is equipped with a wet electrostatic precipitator. . . .' It should be stated `It was. . . .' The wet electrostatic precipitator is no longer needed after the boiler was converted to burn natural gas.
• At 14855, middle column just above Table 2, referring to the FIP's nitrogen oxide (NO
At 14851, “It
“It
At 14855, “The NO
These non-substantive textual edits do not impact our analysis and our final decision regarding approval of the BART alternative for Power Boilers No. 1 and 2.
We finalize approval of the Arkansas Regional Haze Phase III SIP revision (submitted August 13, 2019) as meeting the applicable regional haze BART alternative provisions set forth in 40 CFR 51.308(e)(2) for the Domtar Ashdown Mill. Specifically, we finalize approval of the regional haze program-specific plantwide conditions 32 to 43 from section VI of permit revision #0287-AOP-R22 (effective August 1, 2019) into the SIP for implementing the Domtar BART alternative. These plantwide conditions of permit #0287-AOP-R22
We finalize approval of the reasonable progress components under 40 CFR 51.308(d)(1), to the extent they relate to Domtar Power Boilers No. 1 and 2. With the approved Phase I and II SIP revision requirements and the Arkansas Regional Haze Phase III BART alternative requirements being approved in this final action, Arkansas has addressed all reasonable progress requirements under 40 CFR51.308(d)(1) with a fully-approved regional haze SIP. We,
We finalize approval of the portion of the Arkansas 2015 O
We finalize our determination that approval of the Arkansas Regional Haze Phase III SIP revision and concurrent withdrawal of the corresponding parts of the FIP meet the provisions of CAA section 110(l).
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of revisions to the Arkansas source specific requirements as described in the Final Action section above. The EPA has made, and will continue to make, these materials generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the requirements of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 21, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Best available retrofit technology, Incorporation by reference, Intergovernmental relations, Interstate transport of pollution, Nitrogen dioxide, Ozone, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur oxides, Visibility.
Title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The additions read as follows:
(d) * * *
(e) * * *
(h)
(1) The clear weight of evidence determination that the BART alternative for Power Boilers No. 1 and 2 satisfies all of the applicable regional haze provisions set forth in 40 CFR 51.308(e)(2)(i) to (iv) for the Domtar Ashdown Mill with respect to SO
(2) The regional haze program-specific plantwide conditions 32 to 43 from section VI of Permit #0287-AOP-R22 are approved for Power Boilers No. 1 and 2 for the Domtar Ashdown Mill, which contain SO
(3) The approval of the withdrawal of the current PM
(4) The reasonable progress components under 40 CFR 51.308(d)(1) pertaining to the Domtar Ashdown Mill are approved.
(5) The long-term strategy component pertaining to the Domtar Ashdown Mill that includes the emission limits and schedules of compliance component under 40 CFR 51.308(d)(3)(v)(3) is approved.
(6) Consultation and coordination in the development of the SIP revision with the FLMs and with other states with Class I areas affected by emissions from Arkansas sources, as required under 40 CFR 51.308(i)(2) and 40 CFR 51.308(d)(3)(i), is approved.
(i)
Office of Inspector General (OIG), Health and Human Services (HHS).
Final rule; notification of court-ordered delay of effective date.
As required by an order issued by the U.S. District Court for the District of Columbia, this action provides notice of the delay of the effective date of certain amendments to the safe harbors to the Federal anti-kickback statute that were promulgated in a final rule (“Fraud And Abuse; Removal of Safe Harbor Protection for Rebates Involving Prescription Pharmaceuticals And Creation of New Safe Harbor Protection for Certain Point-of-Sale Reductions in Price on Prescription Pharmaceuticals and Certain Pharmacy Benefit Manager Service Fees”) published on November 30, 2020. The new effective date for these certain amendments is January 1, 2023.
As of March 18, 2021, the January 29, 2021 effective date of the amendments to 42 CFR 1001.952(h)(6)
Aaron Zajic, (202) 619-0335.
In the
On January 12, 2021, a lawsuit challenging the final rule was filed in the U.S. District Court for the District of Columbia.
In the
On March 15, 2021, the Court issued an order postponing until January 1, 2023, the effective date of all provisions of the final rule that were scheduled to take effect on March 22, 2021.
To the extent that 5 U.S.C. 553 applies to this action, implementation of this action without opportunity for public comment is based on the good cause exception in 5 U.S.C. 553(b)(B). Seeking public comment is impracticable, unnecessary, and contrary to the public interest. The postponement of the effective date, until January 1, 2023, is required by court order in accordance with the court's authority to postpone a rule's effective date pending judicial review (5 U.S.C. 705). Seeking prior public comment on this postponement would have been impracticable, as well as contrary to the public interest in the orderly issue and implementation of regulations.
U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security.
Notice of proposed rulemaking.
The U.S. Department of Homeland Security (DHS) is giving concurrent notice of a newly established system of records pursuant to the Privacy Act of 1974 for the “DHS/U.S. Immigration and Customs Enforcement (ICE)-018 Analytical Records System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before April 21, 2021.
You may submit comments, identified by docket number ICEB-2020-0007, by one of the following methods:
•
•
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For general questions please contact: Jordan Holz,
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) proposes to issue a new system of records notice (SORN) titled, “DHS/ICE-018 Analytical Records.” DHS/ICE is creating a new system of records to better reflect and clarify the nature of all records collected, maintained, processed, and shared by ICE in large analytical data environments. A fuller description of this SORN can be found herein the
The DHS/ICE-018 Analytical Records system of records consolidates the following two notices, DHS/ICE-005 Trade Transparency Analysis and Research (TTAR) System of Records, 79 FR 71112, (December 1, 2014), and DHS/ICE-016 FALCON Search and Analysis (FALCON-SA) System of Records, 82 FR 20905, (May 4, 2017), into one new system of records. This new system of records reflects the types of information and records ICE collects and maintains in analytical systems to support its law enforcement and investigative mission, rather than linking the SORN to specific IT system(s).
ICE analytical systems help ICE personnel conduct research and analysis using advanced analytic tools in support of their law enforcement and investigative mission. These tools allow ICE to query, analyze, and present large amounts of data in a variety of formats that can help illuminate relationships among the various data elements. Some analytical tools may incorporate the use of artificial intelligence and machine learning to assist ICE personnel in examining large and complex datasets. All analytical systems and tools under this system of records use a central data store to eliminate the need for multiple copies of the data.
This system of records ingests and aggregates data from a number of system and database interfaces that collects data for ICE's law enforcement, national security, immigration enforcement, and customs enforcement missions. The analytical data store also contains metadata that is created by an ICE analytical system when it ingests data. ICE uses the metadata to apply access controls and other system rules (such as retention policies) to the contents of the central data store. The metadata also provides important contextual information about the date the information was added to the data store and the source system where the data originated. ICE analytical systems also ingest external information from non-federal entities, including state and local law enforcement authorities, private corporations, or foreign governments.
The DHS/ICE-018 Analytical Records SORN also covers tips submitted to ICE via email, an online form on the ICE website, or by calling an ICE tip line phone number. These tips are created electronically using an ICE-wide tip line interface or may be manually entered by ICE analysts. Once ICE analysts adjudicate the tips for action, the tips will then be accessible to authorized users to conduct further investigation.
Users of an analytical tool or system may create visualizations, match records, or create analyses of large volumes of data through algorithmic processes. The end result of user efforts with an analytical tool, such as a map or list, is an analytical work product. Analytical products, information sharing, and user collaboration made possible in analytical systems may result in the creation of a lead to the field.
Consistent with DHS's information sharing mission, information stored in the DHS/ICE-018 Analytical Records system of records may be shared with other DHS Components components that have a need to know the information to carry out their national
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which federal government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, and similarly, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed and provide an opportunity for public comment.
DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/ICE-018 Analytical Records System of Records. Some information in DHS/ICE-018 Analytical Records System of Records relates to official DHS national security, law enforcement, immigration, and intelligence activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.
In appropriate circumstances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.
A system of records notice for DHS/ICE-018 Analytical Records System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend chapter I of title 6, Code of Federal Regulations, as follows:
6 U.S.C. 101
85. The DHS/ICE-018 Analytical Records System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/ICE-018 Analytical Records System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings thereunder; and national security and intelligence activities. The DHS/ICE-018 Analytical Records System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies.
The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g). Additionally, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a (k)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). Where a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions set forth here.
Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process. When an investigation has been completed, information on disclosures made may continue to be exempted if the fact that an investigation occurred remains sensitive after completion.
(b) From subsection (d) (Access and Amendment to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information Directly from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.
(j) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.
U.S. Customs and Border Protection, U.S. Department of Homeland Security.
Notice of proposed rulemaking.
The U.S. Department of Homeland Security (DHS) is giving concurrent notice of a modified and reissued system of records pursuant to the Privacy Act of 1974 for the “DHS/U.S. Customs and Border Protection (CBP)-018 Customs Trade Partnership Against Terrorism System of Records,” and this proposed rulemaking. In this proposed rulemaking, the Department and CBP proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before April 21, 2021.
You may submit comments, identified by docket number USCBP-2020-0051, by one of the following methods:
•
•
•
For general questions, please contact: Debra Danisek,
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) proposes to modify and reissue a current DHS system of records titled, “DHS/CBP-018 Customs Trade Partnership Against Terrorism System of Records.” DHS/CBP is reissuing this modified system of records notice to update its description of how CBP collects and maintains information pertaining to prospective, ineligible, current, or former trade partners in the CTPAT Program; other entities and individuals in their supply chains; and members of foreign governments' secure supply chain programs that have been recognized by CBP, through a mutual recognition arrangement or comparable arrangement, as being compatible with CTPAT. DHS/CBP is updating this system of records notice to clarify that CTPAT Program members may also submit information to DHS/CBP under the CTPAT Trade Compliance program, to include importer self-assessments and other documentation.
CBP uses the information collected and maintained through the CTPAT security and trade compliance programs to carry out its trade facilitation, law enforcement, and national security missions. In direct response to 9/11, CBP challenged the trade community to partner with the government to design a new approach to supply chain security—one that protects the United States from acts of terrorism by improving security while facilitating the flow of compliant cargo and conveyances. The result was the CTPAT Program—a voluntary government/private sector partnership program in which certain types of businesses agree to cooperate with CBP in the analysis, measurement, monitoring, reporting, and enhancement of their supply chains.
Businesses accepted into the CTPAT Program are called partners and agree to take actions to protect their supply chain, identify security gaps, and implement specific security measures and best practices in return for facilitated processing of their shipments by CBP. The CTPAT Program focuses on improving security from the point of origin (including manufacturer, supplier, or vendor) through a point of distribution to the destination. The current security guidelines for CTPAT Program members address a broad range of topics including personnel, physical, and procedural security; access controls; education, training, and awareness; manifest procedures; conveyance security; threat awareness; and documentation processing. These guidelines offer a customized solution for the members, while providing a clear minimum standard that approved companies must meet.
Businesses eligible to fully participate in the CTPAT Program include U.S. importers; exporters; U.S./Canada highway carriers; U.S./Mexico highway carriers; rail and sea carriers; licensed U.S. Customs brokers; U.S. marine port authority/terminal operators; U.S. freight consolidators; ocean transportation intermediaries and non-operating common carriers; Mexican and Canadian manufacturers; and Mexican long-haul carriers.
CTPAT Program members in good standing may optionally participate in the CTPAT Trade Compliance program. Beginning in March 2020, the former Importer-Self Assessment (ISA) Program was integrated into the CTPAT Program as CTPAT Trade Compliance. DHS/CBP is updating this SORN to clarify the additional records collected as part of the CTPAT Trade Compliance program, which is limited to existing CTPAT Program members. To qualify for the CTPAT Trade Compliance program, an importer must submit an additional application via the CTPAT web portal and (a) be a Member of the CTPAT Security Program and in good standing, (b) meet the eligibility criteria laid out in the Eligibility Questions, and (c) complete a Memorandum of Understanding (MOU) and Program Questionnaire.
To participate in the CTPAT Program, a company is required to submit a confidential, on-line application using the CTPAT Security Link Portal,
Additionally, the applicant business must complete a Supply Chain Security Profile (SCSP). The information provided in the SCSP is a narrative description of the procedures the applicant business uses to adhere to each CTPAT Security Criteria or Guideline articulated for their particular business type (
A fuller description of this modified SORN can be found herein the
Consistent with DHS's information sharing mission, information stored in the DHS/CBP-018 Customs-Trade Partnership Against Terrorism (CTPAT) system of records may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/CBP may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which federal government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Similarly, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act. The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed and provide an opportunity for public comment.
DHS is claiming exemptions from certain requirements of the Privacy Act for the DHS/CBP-018 CTPAT System of Records. Some information in the DHS/CBP-018 CTPAT System of Records relates to official DHS national security, law enforcement, and immigration activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes or to avoid disclosure of activity techniques. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.
In appropriate circumstances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.
A system of records notice for the DHS/CBP-018 CTPAT System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend chapter I of title 6, Code of Federal Regulations, as follows:
6 U.S.C. 101
84. The DHS/CBP-018 Customs Trade Partnership Against Terrorism (CTPAT) System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/CBP-018 CTPAT System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to, the enforcement of civil and criminal laws; investigations, inquiries, and proceedings thereunder; and national security activities. The DHS/CBP-018 CTPAT System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies.
No exemption shall be asserted with respect to information requested from and provided by the CTPAT Program applicant including, but not limited to, company profile, supply chain information, and other information provided during the application and validation process. CBP will not assert any exemptions for an individual's application data and final membership determination in response to an access request from that individual. However, the Privacy Act requires DHS to maintain an accounting of the disclosures made pursuant to all routines uses. Disclosing the fact that a law enforcement agency has sought particular records may affect ongoing law enforcement activities. As such, pursuant to 5 U.S.C. 552a(j)(2), DHS will claim exemption from sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is necessary and appropriate to protect this information. Further, DHS will claim exemption from section (c)(3) of the Privacy
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, all other CTPAT Program data, including information regarding the possible ineligibility of an applicant for CTPAT Program membership discovered during the vetting process and any resulting issue papers, is exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g). Pursuant to 5 U.S.C. 552a(k)(2), information regarding the possible ineligibility of an applicant for CTPAT Program membership discovered during the vetting process and any resulting issue papers are exempt from 5 U.S. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). In addition, to the extent a record contains information from other exempt systems of records, CBP will rely on the exemptions claimed for those systems.
Finally, in its discretion, CBP may not assert any exemptions with regard to accessing or amending an individual's application data in the CTPAT Program or accessing their final membership determination in the CTPAT programs.
Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process. When an investigation has been completed, information on disclosures made may continue to be exempted if the fact that an investigation occurred remains sensitive after completion.
(b) From subsection (d) (Access and Amendment to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.
(j) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.
Federal Emergency Management Agency, U.S. Department of Homeland Security.
Notice of proposed rulemaking.
The U.S. Department of Homeland Security (DHS) is giving concurrent notice of a newly established system of records pursuant to the Privacy Act of 1974 for the “DHS/Federal Emergency Management Agency-015 Fraud Investigations System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Comments must be received on or before April 21, 2021.
You may submit comments, identified by docket number FEMA-2020-0032, by one of the following methods:
•
•
•
For general questions please contact: Tammi Hines, (202) 212-5100,
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) proposes to establish a new DHS system of records titled, “DHS/Federal Emergency Management Agency (FEMA)-015 Fraud Investigations System of Records.” This system of records allows DHS/FEMA to collect and maintain records relating to disaster fraud investigations involving misuse of federal disaster funds and/or benefits. This system of records assists DHS/FEMA to safeguard and protect federal disaster funds and/or benefits from fraud against the United States. This system of records further assists FEMA's Fraud Investigations and Inspections Division (FIID) recordkeeping; tracking and managing fraud inquiries, investigative referrals, and law enforcement requests; and case determinations involving disaster funds and/or benefits fraud, criminal activity, public safety, and national security concerns.
DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/FEMA-015 Fraud Investigations System of Records. Information covered by this system of records notice relates to official DHS national security and law enforcement missions, and exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; ensure DHS's ability to obtain information from third parties and other sources; and to protect the privacy of third parties. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension, which would undermine the entire investigative process.
In appropriate circumstances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case-by-case basis.
A notice of system of records for DHS/FEMA-015 Fraud Investigations System of Records is also published in this issue of the
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:
6 U.S.C. 101
83. DHS/FEMA-015 Fraud Investigations System of Records consists of electronic and paper records and will be used by DHS and its components. DHS/FEMA-015 Fraud Investigations System of Records is a repository of information held by DHS/FEMA in connection with its several and varied missions and functions, including the enforcement of civil and criminal laws and investigations, inquiries, and proceedings there under. DHS/FEMA-015 Fraud Investigations System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies.
The Secretary of Homeland Security, pursuant to 5 U.S.C. 522a(k)(2), has exempted this system from the following provisions of the Privacy Act, subject to limitations set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G); (e)(4)(H); (e)(4)(I); and (f). When a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions set forth here.
Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process. When an investigation has been completed, information on disclosures made may continue to be exempted if the fact that an investigation occurred remains sensitive after completion.
(b) From subsection (d) (Access and Amendment to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G) and (e)(4)(H) (Agency Requirements) because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access.
(e) From subsection (e)(4)(I) (Agency Requirements) Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up
(f) From subsection (f) (Agency Rules) because portions of this system are exempt from the access and amendment provisions of subsection (d).
U.S. Citizenship and Immigration Services, Department of Homeland Security (DHS).
Proposed rule; withdrawal.
The U.S. Department of Homeland Security (DHS) is withdrawing a proposed rule that published on October 2, 2020. The NPRM had proposed changes to DHS regulations governing the affidavit of support requirements under the Immigration and Nationality Act.
DHS withdraws the proposed rule published at 85 FR 62432 on October 2, 2020, as of March 22, 2021.
The docket for this withdrawn proposed rule is available at
Mark Phillips, Residence and Naturalization Chief, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, DHS, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).
On October 2, 2020, DHS published a notice of proposed rulemaking (NPRM or proposed rule) titled “Affidavit of Support for Immigrants in the
The NPRM followed from a Presidential Memorandum that President Trump issued on May 23, 2019. The 2019 Presidential Memorandum, “Enforcing the Legal Responsibilities of Sponsors of Aliens,” had directed Federal agencies to “undertake more effective oversight to ensure full compliance with Federal laws on income deeming and reimbursement.”
On February 2, 2021, President Biden issued Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” The Executive order revoked the 2019 Presidential Memorandum. Because Executive Order 14012 revoked the 2019 Presidential Memorandum, DHS is withdrawing the October 2, 2020 NPRM that flowed from that 2019 Memorandum.
Executive Order 14012, Restoring Faith in Our legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans; 42 U.S.C. 5201
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Helicopters (Type Certificate previously held by Eurocopter France) Model AS350B3 and EC130T2 helicopters. This proposed AD was prompted by a report of failure of an engine digital electronic control unit (DECU). This proposed AD would require revising the existing Rotorcraft Flight Manual (RFM) for your helicopter. This proposed AD would also allow the option of modifying the electronic engine control unit (EECU) as terminating action for the RFM revision. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by April 21, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For Airbus Helicopters service information identified in this NPRM, contact Airbus Helicopters, 2701 N Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
You may examine the AD docket at
Jon Jordan, Rotorcraft Flight Test Pilot, Southwest Section, Flight Test Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jon Jordan, Rotorcraft Flight Test Pilot, Southwest Section, Flight Test Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2013-0287, dated December 5, 2013 (EASA AD 2013-0287), to correct an unsafe condition for Eurocopter (formerly Eurocopter France, Aerospatiale) Model AS 350 B3 and EC 130 T2 helicopters with an ARRIEL 2D engine and THALES full authority digital engine control (FADEC) part number (P/N) C13165DA00 or P/N C13165FA00 installed. The EASA advises of a report of an in-flight event where the pilot noticed that the temporary amber governor (GOV) light had illuminated, followed by the failure of the vehicle engine monitoring display (VEMD) screens, and no availability of the automatic or auxiliary engine back-up control ancillary unit (EBCAU). Subsequent investigation identified an internal failure of the engine DECU, which led to loss of fuel flow regulation (frozen fuel metering unit). This failure was not indicated to the pilot by a red GOV warning light as expected, but with amber GOV indication and loss of VEMD display instead. EASA also advises that if this fuel metering unit is frozen in the open position, it may lead to a rotor overspeed, and if it is frozen in the closed position, it may lead to unavailability of engine power. EASA states that this condition, if not addressed, could result in the pilot identifying the type of failure condition incorrectly, possibly resulting in an improper response.
Accordingly, and pending the development of a DECU assembly design improvement, the EASA AD requires incorporating a new procedure into the Emergency Procedures section of the RFM and informing all flight crews of the RFM change. EASA considers its AD an interim action and states that further AD action may follow.
After EASA issued EASA AD 2013-0287, EASA issued SIB No. 2013-23, dated December 19, 2013, for Eurocopter AS 350 B3 and EC 130 T2 helicopters with a Turboméca ARRIEL 2D engine installed. The SIB recommends modifying certain EECUs.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type designs.
The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. AS350-01.00.67 and ASB No. EC130-04A004, each Revision 2 and dated February 17, 2014 (ASB AS350-01.00.67 and ASB EC130-04A004). ASB AS350-01.00.67 applies to Model AS350B3 helicopters and ASB EC130-04A004 applies to Model EC130T2 helicopters. This service information provides a new RFM procedure in the event of illumination of the amber GOV followed by the loss of the VEMD display.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA reviewed Safran Turbomeca Mandatory Service Bulletin No. 292 73 2852, Revision B, dated February 12, 2014. This service information specifies replacing certain FADEC D EECUs with certain amended FADEC D EECUs.
This proposed AD would require revising the Emergency Procedures of the existing RFM for your helicopter by inserting Appendix 4. of ASB AS350-01.00.67 or ASB EC130-04A004, or a different document with information identical to that in Appendix 4., as applicable to your helicopter model.
As an optional terminating action for the RFM revision, this proposed AD would allow installing amendment A on FADEC P/N C13165DA00 or amendment B on FADEC P/N C13165FA00.
The EASA AD applies to Model AS350B3 and EC130T2 helicopters, with an ARRIEL 2D engine and THALES FADEC P/N C13165DA00 or P/N C13165FA00 installed, whereas this proposed AD would apply to those helicopters except not those with THALES FADEC P/N C13165DA00 with amendment A or P/N C13165FA00 with amendment B installed. This proposed AD would also allow installing those amendments on the FADEC as an optional termination action, whereas the EASA AD does not.
The FAA estimates that this AD, if adopted as proposed, would affect up to 628 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Revising the existing RFM for your helicopter would take about 0.25 work-hour for an estimated cost of $21 per helicopter and up to $13,188 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by April 21, 2021.
None.
This AD applies to Airbus Helicopters (Type Certificate previously held by Eurocopter France) Model AS350B3 and EC130T2 helicopters, certificated in any category, with an ARRIEL 2D engine and THALES full authority digital engine control (FADEC) part number (P/N) C13165DA00 without amendment A or P/N C13165FA00 without amendment B, installed.
Joint Aircraft Service Component (JASC) Code: 7321, Engine Fuel Control/Turbine Engines.
This AD was prompted by a report of failure of an engine digital electronic control unit. The FAA is issuing this AD to prevent incorrect indicator illumination, display failure, and loss of fuel flow regulation (frozen fuel metering unit). The unsafe condition, if not addressed, could result in misleading information to the pilot, rotor overspeed or unavailability of engine power, and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 25 hours time-in-service after the effective date of this AD, revise the Emergency Procedures of the existing Rotorcraft Flight Manual (RFM) for your helicopter by inserting Appendix 4. of Airbus Helicopters Alert Service Bulletin (ASB) No. AS350-01.00.67 or ASB No. EC130-04A004, each Revision 2 and dated February 17, 2014 (ASB AS350-01.00.67 or ASB EC130-04A004), as applicable to your helicopter model. Inserting a different document with information identical to that in Appendix 4. of ASB AS350-01.00.67 or ASB EC130-04A004, as applicable to your helicopter model, is acceptable for compliance with the requirement of this paragraph.
(2) As an optional terminating action for the requirement of paragraph (g)(1) of this AD, install amendment A on FADEC P/N C13165DA00 or amendment B on FADEC P/N C13165FA00.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Jon Jordan, Rotorcraft Flight Test Pilot, Southwest Section, Flight Test Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For Airbus Helicopters service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
(3) The subject of this AD is addressed in European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA) AD 2013-0287, dated December 5, 2013. You may view the EASA AD on the internet at
Federal Aviation Administration (FAA), DOT.
Supplemental notice of proposed rulemaking (SNPRM); reopening of comment period.
The FAA is revising a notice of proposed rulemaking (NPRM) that applied to certain Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters. The NPRM proposed to require either replacing the main gearbox (MGB) or as an alternative, replacing the epicyclic reduction gear module for certain serial numbered planet gear assemblies installed on the MGB. The NPRM also proposed to require inspecting the MGB magnetic plugs and oil filter for particles and, depending on the outcome of the inspection, further inspections and replacing certain parts. The NPRM was prompted by the failure of an MGB second stage planet gear. This action revises the NPRM by expanding the applicability to include all Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters. Since these actions impose an additional burden over that proposed in the NPRM, the FAA is reopening the comment period to allow the public the chance to comment on these proposed changes.
The FAA must receive comments on this SNPRM by May 6, 2021.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
Rao Edupuganti, Aviation Safety Engineer, Dynamic Systems Section, Technical Innovation Policy Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
The FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this SNPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this SNPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this SNPRM. Submissions containing CBI should be sent to Rao Edupuganti, Aviation Safety Engineer, Dynamic Systems Section, Technical Innovation Policy Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
The FAA issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters with at least one Type X or Y planet gear assembly with a serial number (S/N) listed in Appendices 4.A. through 4.B of Airbus Helicopters Alert Service Bulletin No. AS365-05.00.78, Revision 3, dated March 2, 2018 (ASB AS-365-05.00.78) installed on the MGB. The NPRM published in the
The NPRM was prompted by EASA AD No. 2017-0116, Revision 2, dated March 2, 2018, (EASA AD 2017-01162R2), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model AS 365 N2, AS 365 N3, SA 365 N, and SA 365 N1 helicopters. EASA advises that after an accident on a Model EC225 helicopter, an investigation revealed the failure of a second stage planet gear of the MGB. EASA states that one of the two types of planet gear assemblies used in the MGB epicyclic module is subject to higher outer race contact pressures and therefore is more susceptible to spalling and cracking. Airbus Helicopters reviewed its range of helicopters with regard to this issue and provided instructions to improve the reliability of the installed MGB. Therefore, EASA AD 2017-01162R2 requires repetitive inspections of the MGB magnetic plugs and corrective action if any particles are detected. EASA AD 2017-01162R2 also requires, if certain MGB planet gear
Since the NPRM was issued, the FAA discovered that the proposed applicability was limited to helicopters with at least one affected assembly installed on the MGB, whereas all Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters, regardless of the assembly, are subject to the unsafe condition and require repetitive inspections of the MGB magnetic plugs for particles. Therefore, this SNPRM corrects the applicability to include all helicopter models. The FAA also determined that any special flight permits would be limited to flights with no passengers on board.
The FAA gave the public the opportunity to comment on the original NPRM (85 FR 47925, August 7, 2020). The FAA received no comments on that NPRM or on the determination of the cost to the public.
The FAA is proposing this SNPRM after evaluating all known relevant information and determining that an unsafe condition is likely to exist or develop on other helicopters of these same type designs. Certain changes described above expand the scope of the original NPRM. As a result, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.
Airbus Helicopters has issued ASB AS365-05.00.78 for Model SA-365N, SA-365N1, AS-365N2, and AS 365 N3 helicopters. This service information specifies performing periodic inspections of the MGB magnetic plugs for particles. This service information also specifies identifying the type of gear assembly installed in the MGB and replacing any Type X assembly within 50 hours time-in-service (TIS). For Type Y gear assemblies, the service information requires replacing the assembly within 50 hours TIS or within 300 hours TIS, depending on the time since new. The service information specifies Type Z gear assemblies should be left as is.
Airbus Helicopters has also issued Service Bulletin No. AS365-63.00.21, Revision 3, dated July 26, 2018, for Model AS365 helicopters. This service information contains procedures for replacing the MGB epicyclic reduction gear as an option to replacing the MGB.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This SNPRM would maintain the proposed corrective actions from the NPRM as follows, but would no longer limit the applicability to only certain helicopters:
• Before further flight, for helicopters with a Type X planet gear assembly with a certain S/N installed, replacing the MGB.
• For helicopters with no Type X planet gear assembly installed but at least one Type Y planet gear assembly with a certain S/N installed, replacing the MGB within 300 hours TIS or before any planet gear assembly accumulates 1,300 hours TIS since new, whichever occurs first.
• As an alternative to replacing the MGB, this SNPRM would allow replacing the epicyclic reduction gear module in the affected MGB.
This proposed AD would also:
• Prohibit installing a MGB with Type Y or Type X planet gear assembly installed on any helicopter.
• Require, within 10 hours TIS and thereafter before the first flight of the day or at intervals not to exceed 10 hours TIS, whichever occurs first, inspecting the lower MGB magnetic plugs for particles and, if there are particles, replacing the MGB, depending on the type and the size of those particles.
The EASA AD requires a 50-hour or 300-hour TIS compliance time or by June 30, 2019, whichever occurs first, to determine the type of planet gear installed in the MGB, and depending on the outcome, to replace the MGB. This proposed AD would set compliance deadlines based only on hours TIS or before further flight. The EASA AD allows a pilot to inspect the MGB magnetic plugs for particles, while this proposed AD would not.
The FAA estimates that this proposed AD would affect 34 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates that operators may incur the following costs in order to comply with this proposed AD.
Inspecting the magnetic plugs and oil filter for particle deposits would take about 1 work-hour for an estimated cost of $85 per inspection cycle.
Replacing an MGB would take about 42 work-hours for cost of $3,570 and parts cost about $295,000 (overhauled) for a total cost of $298,570 per helicopter.
Replacing the epicyclic reduction gear would take about 56 work-hours for an estimated cost of $4,760 and parts cost about $11,404 for a total cost of $16,164 per helicopter.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Will not affect intrastate aviation in Alaska, and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by Reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) applies to Airbus Helicopters Model AS-365N2, AS 365 N3, SA-365N, and SA-365N1 helicopters, certificated in any category.
This AD defines the unsafe condition as failure of a main gearbox (MGB) planet gear assembly. This condition could result in failure of the MGB and subsequent loss of helicopter control.
None.
The FAA must receive comments by May 6, 2021.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) For helicopters with at least one Type X planet gear assembly with a serial number (S/N) listed in Appendix 4.A. of Airbus Helicopters Alert Service Bulletin No. AS365-05.00.78, Revision 3, dated March 2, 2018 (ASB AS-365-05.00.78) installed on the main gearbox (MGB), before further flight, replace the MGB or as an alternative to replacing an affected MGB, replace the epicyclic reduction gear module Post Modification (MOD) 0763C52 in the affected MGB in accordance with paragraph 3.B.2 of the Accomplishment Instructions of Airbus Helicopters Service Bulletin No. AS365-63.00.21, Revision 3, dated July 26, 2018 (SB AS365-63.00.21), except you are not required to contact Airbus Helicopters.
(2) For helicopters without any Type X planet gear assembly installed but with at least one Type Y planet gear assembly with an S/N listed in Appendix 4.B. of ASB AS-365-05.0078 installed on the MGB, within 300 hours time-in-service (TIS), or before any gear accumulates 1,300 hours TIS since new, whichever occurs first, replace the MGB or as an alternative to replacing the MGB, replace the epicyclic reduction gear module MOD 0763C52 in the affected MGB in accordance with paragraphs 3.B.2. of the Accomplishment Instructions of SB AS365-63.00.21, except you are not required to contact Airbus Helicopters.
(3) As of the effective date of this AD, do not install an MGB with a Type X or Type Y gear assembly with an S/N listed in Appendix 4.A. or 4.B. of ASB AS-365-05.0078 installed on the MGB, on any helicopter.
(4) For all helicopters, within 10 hours TIS and thereafter before the first flight of the day or at intervals not to exceed 10 hours TIS, whichever occurs first, inspect the lower MGB magnetic plugs for particles.
(i) If there are particles that consist of any scale, flake, or splinter, or particles other than cotter pin fragments, pieces of lock wire, swarf, abrasion, or miscellaneous non-metallic waste and the planet gear assembly has logged less than 50 hours TIS since new, inspect the MGB plugs for particles before further flight and inspect the oil filter for particles within 5 hours TIS. Thereafter, for 25 hours TIS, continue to inspect the MGB plugs for particles before each flight, inspect the oil filter for particles at intervals not to exceed 5 hours TIS, and perform the actions required by paragraphs (f)(4)(ii)(A) through (B) of this AD.
(ii) If there are particles that consist of any scale, flake, or splinter, or particles other than cotter pin fragments, pieces of lock wire, swarf, abrasion, or miscellaneous non-metallic waste and the planet gear assembly has logged more than 50 hours TIS since new, inspect the cumulative surface area of the particles collected from both the magnetic plug and the oil filter, since last MGB overhaul or since new if no overhaul has been performed.
(A) If the total surface area of the particles is less than 3 mm
(
(
(
(
(B) If the total surface area of collected particles is greater than or equal to 3 mm
(
(
Special flight permits may be permitted provided that there are no passengers on board.
(1) The Manager, International Validation Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Rao Edupuganti, Dynamic Systems Section, Technical Innovation Policy Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone 817-222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, the FAA suggests that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (now European Union Aviation Safety Agency) (EASA) AD No. 2017-0116R2, dated March 2, 2018. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6300, Main Rotor Drive System.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Bell Textron Canada Limited (type certificate previously held by Bell Helicopter Textron Canada Limited) (Bell) Model 505 helicopters. This proposed AD was prompted by the discovery of a gap between the transmission restraint assembly aft attachment hardware lower washer and mating airframe truss assembly (truss assembly) clevis lower lug. This proposed AD would require inspecting the transmission restraint aft attachment hardware installation for a gap and corrective action depending on the inspection results. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by May 6, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Bell Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at
You may examine the AD docket at
Matt Fuller, AD Program Manager, General Aviation & Rotorcraft Unit, Airworthiness Products Section, Operational Safety Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Matt Fuller, AD Program Manager, General Aviation & Rotorcraft Unit, Airworthiness Products Section, Operational Safety Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
Transport Canada, which is the aviation authority for Canada, has issued Canadian AD CF-2019-35, dated October 2, 2019, to correct an unsafe condition for Bell Model 505 helicopters, serial numbers (S/Ns) 65011 and subsequent. Transport Canada advises of a gap between the transmission restraint assembly aft attachment hardware lower washer and the lower lug of the truss assembly clevis identified during quality control activity of a helicopter in final assembly. This gap can occur on the right-hand (RH) and left-hand (LH) sides of the truss assembly clevis. Subsequent investigation revealed that this condition may exist on in-service helicopters. Transport Canada advises that excessive gapping at either of these locations will result in increased stress when fasteners are installed and that the increased stress may result in cracking on the clevis lower lug and subsequent failure of one or both clevis lower lugs. Transport Canada further advises that this condition, if not corrected, could lead to loss of pylon pitch stiffness, excessive pylon pitch motions leading to unknown cyclic inputs to the main rotor, and consequent loss of control of the helicopter.
Accordingly, the Transport Canada AD requires identifying the S/N of the installed truss assembly, and for a helicopter with an affected truss assembly installed, performing an initial inspection of the transmission restraint aft attachment hardware installations for a gap. Depending on the inspection results, the Transport Canada AD requires reducing the torque to the attachment hardware, updating records, and repetitive inspections of the attachment hardware for wear and fretting because of the reduced friction between the mating surfaces; reporting findings to Bell and accomplishing corrective actions specified by Bell; or completing the installation of the
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that an unsafe condition is likely to exist or develop in other helicopters of the same type design.
The FAA reviewed Bell Alert Service Bulletin (ASB) 505-19-12, Revision A, dated July 11, 2019 (505-19-12 Rev A). This service information specifies procedures for an inspection of the restraint hardware installation for the presence of a gap and if needed, reducing the torque to the affected attachment hardware, a repetitive 100-hour inspection of the pitch restraint attachment hardware, and repair of fretting damage on the truss assembly clevis lower lug.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA also reviewed Bell ASB 505-19-12, dated June 27, 2019. This revision of the service information contains the same procedures as 505-19-12 Rev A, except 505-19-12 Rev A corrects a torque value.
This proposed AD would require within 100 hours time-in-service (TIS):
• Accessing and cleaning the lower attachment hardware securing the restraint to the truss assembly, loosening the torque on each lower nut to measure the tare, and adding a torque value of 20 inch-lbs to the measured tare of each nut and torqueing each nut to this new total value.
• Inspecting for a gap around the circumference between the nut and the washer and between the washer and the truss assembly clevis lower lug mounting surface of the RH and LH sides, and if there is a gap, measuring the gap.
• If there is a gap that is less than 0.003 inch (0.076 mm), installing the hardware using the original torque value of 40 to 58 foot-pounds (55 to 78 Nm) plus tare and completing the installation of the attachment point.
• If there is a gap that is 0.003 inch (0.076 mm) to 0.020 inch (0.508 mm) inclusive, installing the hardware with a decreased torque value limit of 20 to 60 inch-pounds (2.3 to 6.8 Nm) plus tare and completing the installation of the attachment point. This proposed AD would also require updating records for your helicopter to indicate the new torque limits on one or both sides. Thereafter, within 100 hours TIS, and thereafter at intervals not to exceed 100 hours TIS, this proposed AD would require inspecting the assembly for fretting between washer and truss lower lug mounting surface, the security of the pitch restraint attachment hardware to make sure it does not turn freely, and the torque seal lacquer between the nut and the washer to make sure the torque seal is intact on the RH and LH sides. Depending on the inspection results, this proposed AD would require removing the cotter pin from service and removing the nut, washer, and bolt, and inspecting the bolt and the lower surface of the truss assembly clevis lower lug. Depending on these inspection results, this proposed AD would require removing the bolt from service; reworking and cleaning the lower surface of the clevis lower lug and inspecting for any cracks; removing the clevis lower lug from service; or applying primer and final paint. This proposed AD would then require installing the hardware with a decreased torque value limit of 20 to 60 inch-pounds (2.3 to 6.8 Nm Nm) plus tare and completing the installation of the attachment point.
• If there is a gap that is more than more than 0.020 inch (0.508 mm), removing the nut, washer, and bolt from service and repairing or replacing the truss assembly clevis lower lug in accordance with FAA-approved procedures.
The applicability of the Transport Canada AD is by helicopter S/N and requires identifying the S/N of the installed truss assembly P/N SLS-030-056-015 to determine if the helicopter is affected by the unsafe condition, whereas the applicability of this proposed AD is by helicopters with certain serial-numbered truss assembly P/N SLS-030-056-015 installed instead. The compliance time of the initial inspections required by the Transport Canada AD is within 100 hours air time or 6 months, whichever occurs first, whereas this compliance time in this proposed AD is within 100 hours TIS instead. The Transport Canada AD requires reporting information to Bell to obtain certain corrective action, while this AD requires repairing or removing affected parts from service instead.
The FAA estimates that this AD, if adopted as proposed, would affect 87 helicopters of U.S. registry. Labor costs are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.
Measuring tare and inspecting for a gap between the transmission restraint assembly aft attachment hardware lower washer and the truss assembly would take about 1 work-hour for an estimated cost of $85 per helicopter and $7,395 for the U.S. fleet. If required, inspecting a pitch restraint attachment point would take about 1 work-hour for an estimated cost of $85 per attachment point per inspection cycle.
The FAA estimates the following costs to do any necessary repairs or replacements based on the results of the inspections:
• Updating records to indicate the new torque limits would take about 0.25 work-hour for an estimated cost of $21.
• Replacing a bolt would take a minimal additional amount of time after inspecting and the part would cost about $50.
• Reworking the lower surface of the clevis lower lug would take about 1 work-hour for an estimated cost of $85.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by May 6, 2021.
None.
This AD applies to Bell Textron Canada Limited (type certificate previously held by Bell Helicopter Textron Canada Limited) Model 505 helicopters, certificated in any category, with a truss assembly part number (P/N) SLS-030-056-015 with a serial number listed in Attachment A of Bell Alert Service Bulletin (ASB) 505-19-12, Revision A, dated July 11, 2019 (ASB 505-19-12 Rev A).
Joint Aircraft System Component (JASC) Code 5310, Fuselage Main, Structure.
The FAA is issuing this AD to address a gap between the transmission restraint assembly aft attachment hardware lower washer and the right-hand (RH) and left-hand (LH) mating airframe truss assembly (truss assembly) clevis lower lug. The unsafe condition, if not addressed, could result in increased stress, cracking and failure of one or both of the clevis lower lugs, and subsequent loss of pylon pitch stiffness, excessive pylon pitch motions leading to unknown cyclic inputs to the main rotor, and loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Within 100 hours time-in-service (TIS) after the effective date of this AD, access the transmission restraint assembly and:
(1) Remove the safety pin at each lower nut location of the aft bolts securing the restraint to the truss assembly. Use solvent (C-304) to remove the corrosion preventive compound on each nut and washer located under the RH and LH truss assembly clevis lower lug.
(2) Loosen the torque on each lower nut while holding the bolt with a wrench until the washer turns freely while sitting on top of the nut.
(3) Measure and record the tare of each nut. For purposes of this AD, tare is the torque required to overcome the internal friction between a self-locking nut and bolt as the nut is being turned on the bolt, but before the nut contacts the washer. Add a torque value of 20 inch-lbs to the measured tare of each nut and torque each nut to this new total value.
(4) Inspect for a gap around the circumference between the nut and the washer and between the washer and the truss assembly clevis lower lug mounting surface of the RH and LH sides as illustrated in Figure 1 of ASB 505-19-12 Rev A (2 sheets). If there is a gap, measure the gap.
(i) If there is a gap that is less than 0.003 inch (0.076 mm), before further flight, install the hardware using the original torque value of 40 to 58 foot-pounds (55 to 78 Nm) plus tare. Do not exceed the limit specified in this paragraph plus tare. Install a cotter pin and apply corrosion preventive compound (C-101) and torque seal lacquer (C-049) between the nut, washer, and lower surface of the truss assembly clevis.
(ii) If there is a gap that is 0.003 inch (0.076 mm) to 0.020 inch (0.508 mm) inclusive, before further flight, install the hardware with a decreased torque value limit of 20 to 60 inch-pounds (2.3 to 6.8 Nm) plus tare. Do not exceed the limit specified in this paragraph plus tare. Install a cotter pin. You may install an additional washer P/N NAS1149E0863P before torqueing and installing the cotter pin while not exceeding the maximum limit of 60 inch-lbs plus tare. Apply corrosion preventive compound (C-101) and torque seal lacquer (C-049) between the nut, washer, and lower surface of the truss assembly clevis. Update records for your helicopter to indicate the new torque limits on one or both sides.
(A) Within 100 hours TIS after performing paragraph (g)(4)(ii) of this AD, and thereafter at intervals not to exceed 100 hours TIS, inspect the assembly for fretting between the washer and truss lower lug mounting surface, inspect the security of the pitch restraint attachment hardware to make sure it does not turn freely, and inspect the torque seal lacquer between the nut and the washer to make sure the torque seal is intact on the RH and LH sides.
(B) If there is any fretting, the pitch restraint attachment hardware turns freely, or a torque seal is broken, remove the cotter pin from service and remove the nut, washer, and bolt. Inspect the bolt for damage and the lower surface of the truss assembly clevis lower lug for fretting damage.
(
(
(
(
(
(C) Install a nut, washer, and bolt with a decreased torque value limit of 20 to 60 inch-pounds (2.3 to 6.8 Nm) plus tare. Do not exceed the limit specified in this paragraph plus tare. Install a cotter pin. You may install an additional washer P/N NAS1149E0863P before torqueing and installing the cotter pin while not exceeding the maximum limit of 60 inch-lbs plus tare. Apply corrosion preventive compound (C-101) and torque seal lacquer (C-049) between the nut, washer, and lower surface of the truss assembly clevis.
(iii) If there is a gap that is more than 0.020 inch (0.508 mm), before further flight, remove the nut, washer, and bolt from service and repair or replace the truss assembly clevis lower lug in accordance with FAA-approved procedures.
You may take credit for the first instance of the actions that are required by paragraphs (g)(1) through (4), except not paragraphs (g)(4)(i), (g)(4)(ii)(A) through (C), or (g)(4)(iii), of this AD if you completed the Accomplishment Instructions, Part I of Bell
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Matt Fuller, AD Program Manager, General Aviation & Rotorcraft Unit, Airworthiness Products Section, Operational Safety Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For service information identified in this AD, contact Bell Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at
(3) The subject of this AD is addressed in Transport Canada AD CF-2019-35, dated October 2, 2019. You may examine the Transport Canada AD on the internet at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. This proposed AD was prompted by a report that a number of nacelle A-frames were not manufactured in accordance with engineering drawings. This proposed AD would require, depending on airplane configuration, removing the fasteners on the nacelle A-frame side brace sub-assemblies, doing an eddy current inspection for cracking, cold-working the holes, installing oversize fasteners, re-identifying the reworked side brace fitting and A-frame, and repair if necessary. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by May 6, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact De Havilland Aircraft of Canada Limited, Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
You may examine the AD docket on the internet at
Andrea Jimenez, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7330; fax 516-794-5531; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Andrea Jimenez, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7330; fax 516-794-
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-39, dated October 14, 2020 (referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. You may examine the MCAI in the AD docket on the internet at
This proposed AD was prompted by a report that a number of nacelle A-frames were not manufactured in accordance with engineering drawings. The holes in the side brace sub-assemblies were not cold-worked as required. As a result the side brace fitting might not meet its fatigue life, and cracking of the A-frame bottom flange may result. The FAA is proposing this AD to address possible cracking of the A-frame. This condition, if not addressed, may lead to collapse of the main landing gear (MLG). See the MCAI for additional background information.
De Havilland Aircraft of Canada Limited has issued Service Bulletin 84-54-32, dated October 10, 2019. This service information describes procedures, depending on airplane configuration, for removing the fasteners on the nacelle A-frame side brace sub-assemblies, doing an eddy current inspection for cracking, cold-working the holes, installing oversize fasteners, and re-identifying the reworked side brace fitting and A-frame.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously. This proposed AD would also require repairing any crack found during an eddy current inspection.
The FAA estimates that this proposed AD affects 41 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) action by May 6, 2021.
None.
This AD applies to De Havilland Aircraft of Canada Limited (type certificate previously held by Bombardier, Inc.) Model DHC-8-400, -401, and -402 airplanes,
Air Transport Association (ATA) of America Code 54, Nacelles/pylons.
This AD was prompted by a report that a number of nacelle A-frames were not manufactured in accordance with engineering drawings. The holes in the side brace sub-assemblies were not cold-worked as required. As a result the side brace fitting might not meet its fatigue life, and cracking of the A-frame bottom flange may result. The FAA is issuing this AD to address possible cracking of the A-frame. This condition, if not addressed, may lead to collapse of the main landing gear (MLG).
Comply with this AD within the compliance times specified, unless already done.
(1) Within the compliance time specified in paragraph (g)(2) of this AD, do the applicable actions specified in paragraphs (g)(1)(i) and (ii) of this AD.
(i) For airplanes having serial numbers 4081 through 4582 inclusive: Remove the fasteners on the nacelle A-frame side brace sub-assemblies, do an eddy current inspection for cracking on airplanes having 30,000 total flight cycles or more, cold-work the holes, and install oversize fasteners, in accordance with Part A of paragraph 3.B. of the Accomplishment Instructions of De Havilland Aircraft of Canada Limited Service Bulletin 84-54-32, dated October 10, 2019. If any cracking is found, before further flight, repair the cracking using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or De Havilland Aircraft of Canada Limited's TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.
(ii) For all airplanes: Re-identify the reworked side brace fitting and A-frame, in accordance with Part B of paragraph 3.B. of the Accomplishment Instructions of De Havilland Aircraft of Canada Limited Service Bulletin 84-54-32, dated October 10, 2019.
(2) At the earlier of the times specified in paragraphs (g)(2)(i) and (ii) of this AD, do the applicable actions specified in paragraph (g)(1) of this AD.
(i) Within 48 months or 8,000 flight hours after the effective date of this AD, whichever occurs first.
(ii) At the later of the times specified in paragraphs (g)(2)(ii)(A) and (B) of this AD.
(A) Before accumulating 40,000 total flight cycles.
(B) Within 12 months or 1,290 flight cycles after the effective date of this AD, whichever occurs first.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) TCCA AD CF-2020-39, dated October 14, 2020, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7330; fax 516-794-5531; email
(3) For service information identified in this AD, contact De Havilland Aircraft of Canada Limited, Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus SAS Model A330-200, A330-200 Freighter, A330-300, A340-200, and A340-300 series airplanes. This proposed AD was prompted by a report that the auxiliary power unit (APU) aft fuel pump printed circuit board (PCB) varnish had deteriorated; the varnish is one of the layers of protection against development of an ignition source. This proposed AD would require replacing each affected APU aft fuel pump, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by May 6, 2021.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For material that will be incorporated by reference (IBR) in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
You may examine the AD docket on the internet at
Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229; email
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0265, dated December 2, 2020 (EASA AD 2020-0265) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A330-201, A330-202, A330-203, A330-223, A330-243, A330-223F, A330-243F, A330-301, A330-302, A330-303, A330-321, A330-322, A330-323, A330-341, A330-342, A330-343, A340-211, A340-212, A340-213, A340-311, A340-312, and A340-313 airplanes.
This proposed AD was prompted by a report that the APU aft fuel pump PCB varnish had deteriorated. The varnish is one of the layers of protection against development of an ignition source. The root cause for the varnish deterioration is unknown, but suspected to be linked to aging. The FAA is proposing this AD to address PCB varnish deterioration. This condition, if not addressed, could, in case of a spark or flame in the area of the pump PCB, result in a fire or explosion and consequent loss of the airplane. See the MCAI for additional background information.
EASA AD 2020-0265 describes procedures for replacing each affected APU aft fuel pump. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2020-0265 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0265 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2020-0265 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2020-0265 that is required for compliance with EASA AD 2020-0265 will be available on the internet at
The FAA estimates that this proposed AD affects 112 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) action by May 6, 2021.
None.
This AD applies to all Airbus SAS airplanes, certificated in any category, specified in paragraphs (c)(1) through (5) of this AD.
(1) Model A330-201, -202, -203, -223, and -243 airplanes.
(2) Model A330-223F and -243F airplanes.
(3) Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(4) Model A340-211, -212, and -213 airplanes.
(5) Model A340-311, -312, and -313 airplanes.
Air Transport Association (ATA) of America Code 28, Fuel system.
This AD was prompted by a report that the auxiliary power unit (APU) aft fuel pump printed circuit board (PCB) varnish had deteriorated; the varnish is one of the layers of protection against development of an ignition source. The FAA is issuing this AD to address PCB varnish deterioration. This condition, if not addressed, could, in case of a spark or flame in the area of the pump PCB, result in a fire or explosion and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2020-0265, dated December 2, 2020 (EASA AD 2020-0265).
(1) Where EASA AD 2020-0265 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Remarks” section of EASA AD 2020-0265 does not apply to this AD.
Although the service information referenced in EASA AD 2020-0265 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) For information about EASA AD 2020-0265, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(2) For more information about this AD, contact Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229; email
Employment and Training Administration, Department of Labor.
Proposed delay of effective and transition dates; request for comments.
On March 12, 2021, the Department of Labor (Department or DOL) published a final rule delaying the effective date of the rule entitled
The Department invites written comments on the proposed delayed effective date and transition dates from interested parties. Written comments must be received by April 21, 2021.
You may submit written comments electronically by the following method:
•
Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue NW, Room N-5311, Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 (877) 889-5627.
On January 14, 2021 (86 FR 3608), the Department published a final rule in the
Although the Final Rule contained an effective date of March 15, 2021, the Department also included two sets of transition periods under which adjustments to the new wage levels will not begin until July 1, 2021. 86 FR 3608, 3642. For most job opportunities, the transition would occur in two steps and conclude on July 1, 2022. For job opportunities that will be filled by workers who are the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or are eligible for an extension of their H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106-313, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273 (2002), the transition would occur in four steps and conclude on July 1, 2024. 86 FR 3608, 3660.
On February 1, 2021 (86 FR 7656), the Department published a notice of proposed rulemaking (NPRM) in the
On March 12, 2021, the Department published a final rule (60-day rule) adopting the proposal and delaying the effective date of the underlying rule to May 14, 2021. 86 FR 13995.
The Department is now proposing to delay the effective date of May 14, 2021, and the transition date of July 1, 2021, under which adjustments to the new wage levels would begin, for a period of eighteen months, or until November 14, 2022 and January 1, 2023, respectively. In addition, the Department proposes corresponding one-year delays for each of the remaining transition dates, which would be revised to January 1, 2024, January 1, 2025, and January 1, 2026, respectively. The Department is proposing this delay for several reasons, as discussed in turn below.
First, the Department is proposing this delay so that it has sufficient time to engage in its comprehensive review of the Final Rule, and to take further action as needed to complete this review. Many comments on the 60-day NPRM raised substantive and procedural concerns regarding the underlying rulemaking. Some commenters raised concerns, for example, over the lack of a proper notice and comment period for the public to comment on provisions in the Final Rule, including the transition date provisions, and the Department's failure to make available technical studies and data it employed in reaching decisions in that rule. Commenters believed the Final Rule did not adequately consider and respond to issues raised by public comments to the IFR, including the methodology employed by the Department, and that the Department had allegedly ignored data and information contrary to its position. This led to broader concerns that the Department did not fully consider available data. These concerns call into question the appropriateness of the wage rates established in the Final Rule, including the transition rates currently scheduled to take effect on July 1, 2021. For example, assuming that the commenters are correct and that the public was not provided a full and complete opportunity to comment on the transition provisions then the Department did not have the benefit of receiving and considering comments that could have caused it to adopt longer or shorter transition periods, higher or lower transition rates, or to ultimately not include transition provisions in the rule. Commenters also noted that sources of authority cited as a basis for the rulemaking, or for key assumptions in the rulemaking, have since been revoked or rescinded, such as Executive Order (E.O.) 13788 (Buy American and Hire American).
Many of these same concerns have been raised in the ongoing litigation concerning the IFR and the Final Rule. 86 FR 3608, 3612 (discussing lawsuits and court orders setting aside the IFR). For example, plaintiffs have recently raised claims in the pending litigation that the Final Rule's adjustments to the IFR “stem from undisclosed data and analyses that DOL failed to place on the public rulemaking docket.” First Amended Complaint at ¶ 89,
Moreover, other commenters suggested approaches that the Department should take as it reviews this rulemaking. For example, one commenter not only recommended that the Department conduct a full legal review and consider and respond to previously submitted comments, but that it also explore ways to ensure that wages reflect different types of common compensation structures, noting that many employers compensate their professional employees through a combination of base wages, bonuses, and other benefits. Another commenter suggested the Department do due diligence in research, data collection and analysis.
The Department is committed to conducting a thorough and transparent review of this rulemaking. Based on the Department's review to date, additional time is needed to comprehensively review the record relied upon to support this rulemaking before it is allowed to take effect, including litigants' claims that the Department's failure to publicly disclose certain data and analysis relied upon to establish the new wage levels will otherwise result in wages that, contrary to the Final Rule's conclusions, do not “accurately reflect[ ] the portion of the OES distribution where workers with levels of education, experience, and responsibility similar to the vast run of entry-level H-1B and PERM workers likely fall.” 86 FR 3608, 3639. In light of these claims and the comments received on the 60-day NPRM, which highlight very serious concerns with the substance of the Final Rule and the process through which it was promulgated, the Department believes additional action is needed and intends, through the issuance of a separate request for information (RFI), to solicit public input on other sources of data and/or methodologies to inform any potential new proposal(s) to amend its regulations governing prevailing wages for PERM, H-1B, H-1B1, and E-3 job opportunities. While the Department undertakes this review and solicits additional public input, it proposes to delay implementation of the revisions to the prevailing wage levels until it may determine they appropriately reflect the wages of workers in the United States similarly employed. The Department has considered allowing the rule to take effect pending its review and the assessment of potential new rulemaking; however, the Department thinks the concerns discussed above call into question fundamental aspects of the rulemaking to such a degree that the
Second, and relatedly, the Department preliminarily believes that delaying the effective and transition dates, as proposed herein, will prevent confusion and uncertainty among the regulated community over the operative wage rates while the Department conducts its review. For example, a university commenter to the 60-day NPRM observed that the transition dates are confusing and complicated for employers who must ensure they are using the right set of prevailing wage data and maintaining accurate public inspection files depending on when their documentation is filed. Delaying the effective and transition dates of this rule while the Department undertakes its review, instead of allowing these dates to be implemented, will prevent this unnecessary confusion and uncertainty.
Third, this delay will allow BLS and ETA's Office of Foreign Labor Certification (OFLC) adequate time to compute and validate prevailing wage data covering all occupations and geographic areas, complete and thoroughly test modifications to the OFLC Foreign Labor Application Gateway (FLAG) system, train staff, and conduct sufficient public outreach to ensure an effective and orderly implementation by the time the initial transition wage rates become effective. Even after the Department has completed its review of this rule, BLS and OFLC will need sufficient time to plan and implement any changes associated with the computation of wage levels under the Department's four-tiered wage structure.
Specifically, under a Memorandum of Understanding (MOU), changes to the computation of prevailing wages for Levels I and IV, data categories, or other specific terms must be agreed to by OFLC and BLS six months in advance of the deliverable date.
When the IFR was published, the necessary time was not provided to ensure the proper testing and implementation of the new methodology for computing the wage levels, which meant BLS and OFLC were unable to follow the implementation process described above. As a result, the wages produced by BLS yielded significant anomalies and far more instances where BLS was unable to provide a leveled wage than would typically occur. Had BLS and OFLC had sufficient time to implement the new methodology, the prevalence of these anomalies and absence of leveled wages could have been identified prior to implementation and steps could have been taken to proactively address those issues. To avoid similar issues in the future, it is critical that BLS and OFLC have sufficient time to implement the wage methodology in the Final Rule should the Department allow it to take effect.
Specifically, after receiving the final prevailing wages for Levels I and IV, OFLC will need approximately one month to compute and review initial prevailing wage estimates for the two intermediate levels according to the mathematical formula identified in the statute. Once validated for accuracy, OFLC must then load and thoroughly test integration of the final prevailing wage data into its online Foreign Labor Certification Data Center system, accessible at
To the extent employers and beneficiaries may have taken some preparatory steps to conform to the Final Rule, the Department believes such actions, if any, are limited given the short amount of time that has passed since the rule was published on January 14, 2021 and the publication of the 60-day NPRM on February 1, 2021. In addition, the Department believes such reliance interests do not outweigh the need for the Department to propose this delay. As indicated above, the issues raised by commenters to the 60-day NPRM and by parties in the related litigation cast serious concern over the Final Rule's determination on the prevailing wage levels needed to prevent adverse effect. Based on the concerns raised by these commenters and litigants, the Department believes it is imperative that it evaluate these concerns and, prior to implementing the Final Rule, evaluate whether new rulemaking is warranted to address these concerns such that the Department properly fulfills its mandate to prevent adverse effect. As part of this effort, the Department proposes this 18-month delay of the Final Rule's effective date of May 14, 2021, and transition date of July 1, 2021, respectively, and proposes corresponding one-year delays for subsequent transition dates.
The Department acknowledges that delaying the implementation of the Final Rule is likely to have an impact on the wages paid to workers, as some commenters on the 60-day NPRM suggested. However, commenters have also indicated that the Final Rule would negatively impact workers in other ways. Commenters stated, for example, that the Final Rule would lead to an increase in companies outsourcing jobs, the potential bankruptcy of small businesses, and an inability to fill positions with qualified workers that would result in slower or incomplete research and development. In addition, implementing the Final Rule and subsequently amending the rule, if the Department determines that revisions are necessary, would lead to multiple changes to the wage structure over a short period of time and pose significant logistical challenges for FLS and OFLC to conduct the necessary testing and analysis to ensure an efficient and orderly implementation of prevailing wage updates. Consistent with comments received on the 60-day NPRM recommending the Department consider a further delay of the Final Rule's effective to avoid operational and logistical problems for stakeholders and the filing community, the proposed
While the Department acknowledges that the proposed delay is significant, based on its initial review and given the concerns described above, it is clear that a significant amount of time is necessary to consider all aspects of this rulemaking, including the underlying methodology employed, and relevant studies and data. To that end, the Department intends, through the issuance of a separate RFI, to solicit public input on other sources of data and/or methodologies to inform any potential new proposal(s) to amend its regulations governing prevailing wages for PERM, H-1B, H-1B1, and E-3 job opportunities. This proposed delay will allow the Department sufficient time to evaluate commenters' concerns, consider other regulatory actions (such as the RFI or additional rulemaking) and carefully review the comments that are submitted in response. It will also afford BLS and OFLC adequate time of at least eight months to implement changes to the prevailing wage structure should the Department decide to implement the Final Rule as published.
The Department seeks public comment on the proposed delay, including whether it should delay the effective date and the transition dates of the Final Rule and whether the proposed period of delay is an appropriate length of time or whether other lengths of time may be more appropriate. The Department specifically seeks comment on whether, rather than delaying implementation as proposed herein, the Department should allow the rule, and any accompanying transition dates, to take effect while it conducts its review and considers any new proposal(s) to amend the regulations in question. The Department asks commenters to provide specific details and any available data regarding the specific challenges they face in complying with the Final Rule by the current transition date of July 1, 2021. The Department also invites the public to share any relevant knowledge and specific facts about any benefits, costs, or other impacts of this proposal on the regulated community, workers, and other relevant stakeholders. Lastly, the Department solicits comment on any other potential consequences of not delaying the effective date and transition dates of the Final Rule. All comments on the underlying rulemaking will be considered to be outside the scope of this rulemaking.
Under E.O. 12866, the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and, therefore, subject to the requirements of the E.O. and review by OMB. 58 FR 51735. Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that: (1) Has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.
E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and qualitatively discuss values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
The Final Rule
The Final Rule transition period allowed foreign workers and their employers time to adapt to the new wage rates. For most job opportunities, the Final Rule transition followed two steps with a delayed implementation period, concluding on July 1, 2022. For these jobs, current wage levels would be in effect from January 1, 2021 through June 30, 2021. From July 1, 2021 through June 30, 2022 the prevailing wage would be 90 percent of the final wage level. From July 1, 2022 and onward the prevailing wage would be the final wage level. Job opportunities in the four-step transition group had a delayed implementation period, with a transition to final wage levels concluding on July 1, 2024. For these jobs the baseline wage levels would be in effect from January 1, 2021 through June 30, 2021. From July 1, 2021 through June 30, 2022 the prevailing wage would be 85 percent of the final wage levels; from July 1, 2022 through June 30, 2023 the prevailing wage would be 90 percent of the final wage levels; from July 1, 2023 through June 30 2024 the prevailing wage would be 95 percent of the final wage levels; and
The Department is now proposing to delay the effective date of May 14, 2021, and the transition date of July 1, 2021, under which adjustments to the new wage levels would begin, for a period of eighteen months, or until November 14, 2022 and January 1, 2023, respectively. In addition, the Department proposes corresponding one-year delays for each of the remaining transition dates, which would be revised to January 1, 2024, January 1, 2025, and January 1, 2026, respectively. The Department is proposing this delay for three primary reasons: (1) To allow the Department to have sufficient time to engage in its comprehensive review of the Final Rule; (2) to prevent confusion and uncertainty among the regulated community over the operative wage rates while the Department conducts its review; and (3) because BLS and OFLC will not have adequate time to compute and validate prevailing wage data covering all occupations and geographic areas, complete and thoroughly test modifications to the OFLC FLAG system, train staff, and conduct sufficient public outreach to ensure an effective and orderly implementation by the time the initial transition wage rates become effective on July 1, 2021.
Under the proposed rule, current wage levels would be in effect through December 31, 2022, and wage impacts estimated in the Final Rule will not begin until January 1, 2023. For the two-step transition, the current wage levels will be in effect through December 31, 2022, and from January 1, 2023 through December 31, 2023 the prevailing wage will be 90 percent of the final wage level. From January 1, 2024 and onward the prevailing wage will be the final wage level. For the four-step transition the current wage levels will be in effect through December 31, 2022. From January 1, 2023 through December 31, 2023, the prevailing wage will be 85 percent of the final wage levels; from January 1, 2024 through December 21, 2024, the prevailing wage will be 90 percent of the final wage levels; from January 1, 2025 through December 21, 2025, the prevailing wage will be 95 percent of the final wage levels; and from January 1, 2026 onwards the prevailing wage will be the final wage levels.
The proposed rule's delay in effective date will result in the reduction of transfer payments in the form of higher wages from employers to H-1B employees. Additionally, the proposed rule would delay the potential for deadweight losses to occur in the event that requiring employers to pay a wage above what H-1B workers are willing to accept results in H-1B caps not to be met. The Department has observed that the annual H-1B cap was reached within the first five business days each year from FY 2014 through FY 2020. While the Department expects that the increase in wages may incentivize some employers to substitute domestic workers for H-1B employees, provided that domestic workers are available for the jobs, it is likely that the same number of H-1B visas will be allotted within the annual caps in the future.To calculate the reduction of transfer payments the Department considered the transfer payments of the Final Rule as the baseline and shifted them according to the proposed rule's new transition effective dates. To shift transfer payments the Department used the average annual wage impacts from Exhibit 7 in the Final Rule's E.O. 12866 section and applied them to the proposed rule transition period. Exhibit 1, below, presents the revised wage transition schedule under the two groups.
The shift in the transition schedule results in the annual transfer payments presented in Exhibit 2, below. To see total transfer payments in the Final Rule, refer to Exhibit 10 of the Final Rule.
The Department expects that the proposed rule's delay in effective date will result in savings to employers (and a reduction in wages to employees) represented by the reduction of transfer payments (wages) from employers to employees. The Department calculates the proposed rule's reduced transfer payments by differencing the shifted transfer payments in Exhibit 2 from the Final Rule's transfer payments (Exhibit 10 of the Final Rule). The Department estimates the total reduction of transfer payments over the 10-year period is $32.05 billion and $28.19 billion at discount rates of 3 and 7 percent, respectively. The Department estimates annualized reduced transfer payments of $3.76 billion and $4.01 billion at discount rates of 3 and 7 percent, respectively. Exhibit 3, below, presents the total transfer payments of the Final Rule, the shifted transfer payments resulting from the proposed rule delay, and the resulting reduction of transfer payments by the proposed rule.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required.
The Department believes that this proposed rule will have a significant economic impact on a substantial number of small entities and is therefore publishing this Initial Regulatory Flexibility Analysis as required.
The Department is proposing to delay the effective date of the Final Rule for three primary reasons: (1) To allow the Department to have sufficient time to engage in its comprehensive review of the Final Rule; (2) to prevent confusion and uncertainty among the regulated community over the operative wage rates while the Department conducts its review; and (3) because BLS and OFLC will not have adequate time to compute and validate prevailing wage data covering all occupations and geographic areas, complete and thoroughly test modifications to the OFLC FLAG system, train staff, and conduct sufficient public outreach to ensure an effective and orderly implementation by the time the initial transition wage rates become effective on July 1, 2021.
The Department is now proposing to delay the effective date of May 14, 2021, and the transition date of July 1, 2021, under which adjustments to the new wage levels would begin, for a period of eighteen months, or until November 14, 2022 and January 1, 2023, respectively. In addition, the Department proposes corresponding one-year delays for each of the remaining transitions dates, which would be revised to January 1, 2024, January 1, 2025, and January 1, 2026, respectively.
The Immigration and Nationality Act, as amended, assigns certain responsibilities to the Secretary of Labor (Secretary) relating to wages and working conditions of certain categories of employment-based immigrants and nonimmigrants. This proposed rule relates to the labor certifications that the Secretary issues for certain employment-based immigrants and to the LCAs that the Secretary certifies in connection with the temporary employment of foreign workers under
The proposed rule does not change the number of impacted small entities. A summary of impacted small entities can be found in Exhibit 13 of the Final Rule's RFA section.
The proposed rule does not have any reporting, recordkeeping, or other compliance requirements impacting small entities. The Department expects that the proposed change will result in savings to employees represented by transfer payments from employees to employers due to the proposed rule's delay in effective date.
The small entity impacts are unchanged in magnitude from Exhibit 14 in the Final Rule's RFA section. However, under the proposed rule the small entity impacts represent wage savings to small businesses relative to the Final Rule because of the delayed transition period. The Department estimates that wage savings from the delayed transition will occur between 2021 and 2027 as presented in the E.O. 12866 section of the proposed rule. The Department estimates that small entity savings as a proportion of total revenue will be equivalent in magnitude to the cost impacts as a proportion of total revenue estimated in Exhibit 15 in the Final Rule's RFA section. Therefore, the Department estimates that the proposed rule will have a significant economic impact on a substantial number of small entities.
The Department is not aware of any relevant Federal rules that conflict with this proposed rule.
The RFA directs agencies to assess the impacts that various regulatory alternatives would have on small entities and to consider ways to minimize those impacts. The proposed rule results in wage savings to small entities and therefore has a beneficial impact on small entities. The Department invites public comments on alternatives to the proposed rule that would further benefit entities while remaining consistent with the objectives of the proposed rule.
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. The inflation-adjusted value equivalent of $100 million in 1995 adjusted for inflation to 2019 levels by the Consumer Price Index for All Urban Consumers (CPI-U) is approximately $168 million based on the Consumer Price Index for All Urban Consumers.
Calculation of inflation: (1) Calculate the average monthly CPI-U for the reference year (1995) and the current year (2019); (2) Subtract reference year CPI-U from current year CPI-U; (3) Divide the difference of the reference year CPI-U and current year CPI-U by the reference year CPI-U; (4) Multiply by 100 = [(Average monthly CPI-U for 2019—Average monthly CPI-U for 1995)/(Average monthly CPI-U for 1995)] * 100 = [(255.657−152.383)/152.383] * 100 = (103.274/152.383) *100 = 0.6777 * 100 = 67.77 percent = 68 percent (rounded). Calculation of inflation-adjusted value: $100 million in 1995 dollars * 1.68 = $168 million in 2019 dollars.
While this proposed rule may result in the expenditure of more than $100 million by the private sector annually, the rulemaking is not a “Federal mandate” as defined for UMRA purposes.
OIRA has determined that this proposed rule is a major rule as defined by 5 U.S.C. 804, also known as the “Congressional Review Act,” as enacted in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 868,
This proposed rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of E.O. 13132, it is determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.
This proposed rule does not have “tribal implications” because it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Accordingly, E.O. 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501,
Administrative practice and procedure, Employment, Foreign workers, Labor, Wages.
Accordingly, for the reasons stated in the preamble, the Department of Labor proposes to amend part 656 of chapter V, title 20, Code of Federal Regulations, as follows:
8 U.S.C. 1182(a)(5)(A), 1182(p); sec.122, Pub. L. 101-649, 109 Stat. 4978 (8 U.S.C. 1182 note); and Title IV, Pub. L. 105-277, 112 Stat. 2681 (8 U.S.C. 1182 note).
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(2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be based on the wages of workers similarly employed using the wage component of the Bureau of Labor Statistics (BLS) Occupational Employment Statistics Survey (OES) in accordance with paragraph (b)(2)(i) of this section, unless the employer provides an acceptable survey under paragraphs (b)(3) and (g) of this section or elects to utilize a wage permitted under paragraph (b)(4) of this section.
(i) The BLS shall provide the OFLC Administrator with the OES wage data by occupational classification and geographic area, which is computed and assigned at levels set commensurate with the education, experience, and level of supervision of similarly employed workers, as determined by the Department.
(ii) Except as provided under paragraph (b)(2)(iii) of this section, the prevailing wage shall be provided by the OFLC Administrator at the following four levels:
(A) The Level I Wage shall be computed as the 35th percentile of the OES wage distribution and assigned for the most specific occupation and geographic area available.
(B) The Level II Wage shall be determined by first dividing the difference between Levels I and IV by three and then adding the quotient to the computed value for Level I and assigned for the most specific occupation and geographic area available.
(C) The Level III Wage shall be determined by first dividing the difference between Levels I and IV by three and then subtracting the quotient from the computed value for Level IV and assigned for the most specific occupation and geographic area available.
(D) The Level IV Wage shall be computed as the 90th percentile of the OES wage distribution and assigned for the most specific occupation and geographic area available. Where the Level IV Wage cannot be computed due to wage values exceeding the uppermost interval of the OES wage interval methodology, the OFLC Administrator shall determine the Level IV Wage using the current hourly wage rate applicable to the highest OES wage interval for the specific occupation and geographic area, or the arithmetic mean of the wages of all workers for the most specific occupation and geographic area available, whichever is highest.
(iii) Transition wage rates are as follows:
(A) For the period from [effective date of final rule] through December 31, 2022, the prevailing wage shall be provided by the OFLC Administrator at the following four levels:
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(B) For the period from January 1, 2023, through December 31, 2023, the prevailing wage shall be provided by the OFLC Administrator at the following four levels:
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(C) Notwithstanding any other provision of this section, if the employer submitting the Form ETA-9035/9035E,
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(D) Where a Level IV Wage provided under paragraph (b)(2)(iii) of this section cannot be computed due to wage values exceeding the uppermost interval of the OES wage interval methodology, the OFLC Administrator shall determine the Level IV Wage using the current hourly wage rate applicable to the highest OES wage interval for the specific occupation and geographic area or the arithmetic mean of the wages of all workers for the most specific occupation and geographic area available, whichever is highest.
(iv) The OFLC Administrator will publish, at least once in each calendar year, on a date to be determined by the OFLC Administrator, the prevailing wage levels under paragraphs (b)(2)(ii) and (iii) of this section as a notice posted on the OFLC website.
(3) If the employer provides a survey acceptable under paragraph (g) of this section, the prevailing wage for labor certification purposes shall be the arithmetic mean of the wages of workers similarly employed in the area of intended employment. If an otherwise acceptable survey provides a median and does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of workers similarly employed in the area of intended employment.
Environmental Protection Agency (EPA).
Notices of filing of petitions and request for comment.
This document announces the Agency's receipt of initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before April 21, 2021.
Submit your comments, identified by docket identification (ID) number and the pesticide petition (PP) of interest as shown in the body of this document, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Marietta Echeverria, Registration Division (7505P), main telephone number: (703) 305-7090, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA is announcing receipt of pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), summaries of the petitions that are the subject of this document, prepared by the petitioners, are included in dockets EPA has created for these rulemakings. The dockets for these petitions are available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.
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21 U.S.C. 346a.
Federal Communications Commission.
Proposed rule.
In the document, the Commission seeks comment on several proposals to modify its Secure and Trusted Communications Networks Reimbursement Program (Reimbursement Program) rules to help protect the safety and security of U.S. communications networks. The proposals seek to modify these rules to align with the Consolidated Appropriations Act of 2021 (CAA), which appropriated $1.895 billion to remove, replace, and dispose of communications equipment and services that pose a national security threat. Specifically, the Commission seeks comments on a proposal to raise the cap on eligibility for participation in the Reimbursement Program to providers of advanced communications service with 10 million or fewer customers and modifying the scope of the equipment and services eligible under the Reimbursement Program to align with the July 30, 2020 orders designating Huawei Technologies Company (Huawei) and ZTE Corporation (ZTE) as national security threats.
Comments are due on or before April 12, 2021, and reply comments are due on or before April 26, 2021. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this document, you should advise the contact listed in the following as soon as possible.
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
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Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. Due to the COVID-19 pandemic, the Commission closed its hand-delivery filing location at FCC Headquarters effective March 19, 2020. As a result, hand or messenger delivered filings in response to this Notice of Proposed Rulemaking will not be accepted. Parties are encouraged to take full advantage of the Commission's various electronic filing systems for filing applicable documents. Except when the filer requests that materials be withheld
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with § 1.49 and all other applicable sections of the Commission's rules. The Commission directs all interested parties to include the name of the filing party and the date of the filing on each page of their comments and reply comments. All parties are encouraged to use a table of contents, regardless of the length of their submission. The Commission also strongly encourages parties to track the organization set forth in the Notice of Proposed Rulemaking in order to facilitate the Commission's internal review process.
For further information, please contact Brian Cruikshank, Competition Policy Division, Wireline Competition Bureau, at
This is a summary of the Commission's
1. In this proceeding, the Commission takes steps to advance Congressional and Commission objectives to secure the nation's communications networks. Through the CAA, Congress appropriated $1.9 billion to the Commission to implement the Secure and Trusted Communications Networks Act of 2019 (Secure Networks Act), of which $1.895 billion must be used to remove and replace communications equipment and services that pose a national security risk and reimburse eligible providers for the cost of doing so. The FNPRM proposes to modify the Commission's rules consistent with the CAA to expedite removal of harmful equipment and services from our nation's communications networks.
2. In particular, the Commission proposes to raise the cap on eligibility for participation in the Reimbursement Program consistent with the requirements of the CAA. The Commission also proposes to modify the acceptable use of reimbursement funds and to amend its rules to allow recipients to use reimbursement funds to remove, replace, or dispose of equipment or services that were purchased, rented, leased, or otherwise obtained on or before June 30, 2020. The Commission proposes to replace the prioritization scheme adopted in the Commission's
3. Now more than ever, the stability of the U.S. economy depends on the reliability, security, and integrity of the nation's networks. The COVID-19 pandemic has increased our nation's reliance on the internet, and the rapid shift to online work, school, and health care has elevated the risk of cyber threats to our country. Moreover, the damage from recent and highly sophisticated supply chain attacks, such as the SolarWinds software breach, has further emphasized the need for a multifaceted and strategic approach to protecting our networks from all threats. The targeted actions the Commission takes in this document are consistent with congressional efforts in the CAA to hasten the removal of insecure equipment and services from our networks, which is an important element of secure communications.
4. The Commission seeks comment on how to incorporate the provisions of the CAA into the Commission's rules. Specifically, the Commission seeks comment on changes to its rules regarding eligibility for participation in the Reimbursement Program, acceptable uses of Reimbursement Program disbursements, the eligibility of certain equipment and services for the Reimbursement Program, and a prioritization paradigm in the event applications for the Reimbursement Program exceed the $1.895 billion appropriated by Congress.
5. The Commission proposes to raise the cap on eligibility for participation in the Reimbursement Program to providers of advanced communications services with 10 million or fewer customers and seek comment on this proposal. Prior to enactment of the CAA, section 4(b)(1) of the Secure Networks Act restricted eligibility under the Reimbursement Program to providers of advanced communication service with two million or fewer customers, and in the
6. The Commission next proposes to modify the acceptable use of Reimbursement Program funds to include only the removal, replacement, and disposal of equipment and services subject to the final designations of Huawei and ZTE (collectively, the
7. Before it was amended by the CAA, section 4(c) of the Secure Networks Act specified that a participant in the Reimbursement Program may only use Reimbursement Program funding to remove, replace, and dispose of “covered communications equipment or services” published on the list of covered communications equipment and services (Covered List). In the
8. In section 901 of the CAA, however, Congress amended section 4(c) of the Secure Networks Act to limit the use of reimbursement funds:
9. The Commission believes this amendment demonstrates Congressional intent to change the scope of equipment and services eligible for reimbursement from the equipment and services on the Covered List to the equipment and services subject to the
10. The Commission seeks comment on alternative interpretations. Did Congress intend to limit the use of Reimbursement Program funds to removal, replacement, and disposal of equipment and services subject to both the
11.
12. In adopting the remove-and-replace rule in the
13. The Commission proposes to amend its rules to allow Reimbursement Program recipients to use such funds to remove, replace, or dispose of any equipment or services that was purchased, rented, leased, or otherwise obtained on or before June 30, 2020. The Commission seeks comment on the proposal.
14. Section 4(c)(2)(A) of the Secure Networks Act prohibited Reimbursement Program recipients from using such funds to “remove, replace, or dispose of any covered communications equipment or service purchased, rented, leased, or otherwise obtained on or after, in the case of covered any communications equipment or service that is on the initial list published under section 2(a), August 14, 2018, or in the case of any covered communications equipment that is not on the initial list published under section 2(a), the date that is 60 days after the date on which the Commission places such equipment or service on the list . . . .” In the
15. In the CAA, Congress amended section 4(c)(2)(A) of the Secure Networks Act to prohibit Reimbursement Fund recipients from using such funds to “remove, replace, or dispose of any covered communications equipment or service purchased, rented, leased, or otherwise obtained on or after publication of the [
16. The Commission proposes to replace the prioritization scheme adopted in the
17. Before enactment of the CAA, the Secure Networks Act was silent on whether or how reimbursement funds should be prioritized in the event requests for reimbursement funding exceeded the appropriated money available for such reimbursement. In the
18. The CAA, however, established a prioritization paradigm for the Reimbursement Program that differs from the model the Commission adopted in the
19. The Commission proposes to adopt the CAA's prioritization scheme as an overarching replacement to the prioritization scheme adopted in the
20. While the Commission proposes to change the three reimbursement prioritization categories consistent with the CAA, the CAA is silent on how the Commission should further prioritize funding within the three main categories. If funding within a particular category is insufficient to meet demand, how should the Commission allocate funding within that particular category? Can the Commission still prioritize certain equipment or providers within an individual category if funding is insufficient to fund all applications within that prioritization category? When the Commission adopted the prioritization scheme in the
21. Similarly, the Commission seeks comment on other potential sub-prioritization categories. Recognizing the national security threats to communications networks or the communications supply chain that remain even while the Commission works to remove covered equipment and services, the Commission seeks comment on prioritizing, within each category, the removal and reimbursement of certain equipment or services at particular locations identified as posing an elevated national security risk by the Commission or other federal agencies or interagency bodies as defined in section 2(c) of the Secure Networks Act. The Commission believes prioritizing equipment and services at particular locations with an elevated national security risk is consistent with the CAA, because the Commission would only prioritize equipment and services within the same prioritization category. Building on this idea, can the Commission prioritize equipment and services at locations that pose a heightened national security risk in a lower priority category ahead of any equipment and services in a higher prioritization category? Are there other methods for prioritizing any other equipment or services within a reimbursement prioritization category? The Commission seeks comment on any other methods consistent with the CAA prioritization structure.
22. In the Secure Networks Act, Congress defined “provider of advanced communications service” as “a person who provides advanced communications service to United States customers.” Congress amended this definition in the CAA to “include[ ] . . . accredited public or private non-commercial educational institutions providing their own facilities-based educational broadband service as defined in § 27.4 of the Commission's rules,” and “health care providers and libraries providing advanced communications service.” In the
23. Consistent with the CAA, the Commission proposes to change the
24. Finally, the Commission seeks comment on whether the amendments to the Secure Networks Act enacted by Congress in the CAA require revision to any other provisions or rules adopted by the Commission in the
25. The FNPRM seeks comment on proposals to implement the requirements of the CAA, and the Commission has no discretion to ignore such congressional direction. In addition, the CAA provides funding to reimburse eligible providers for their costs to remove and replace harmful equipment and services from their networks. Moreover, the Commission already completed an Information Collection to determine the costs to ETCs to remove and replace Huawei and ZTE equipment and services from their networks. Accordingly, the Commission tentatively concludes that its proposals in the FNPRM will impose no additional costs to those who are required to participate in the reimbursement program. The Commission seeks comment on this tentative conclusion.
26. This document contains proposed new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.
27.
28. Consistent with the Commission's obligation to be responsible stewards of the public funds used in the USF programs and increasing concern about ensuring communications supply chain integrity, the FNPRM proposes and seeks comment on rules to implement Division N, Title IX, section 901 of the CAA and their applicability to the Commission's ongoing efforts to secure the communications supply chain.
29. Specifically, the Commission proposes to amend the rules regarding provider eligibility for participation in the Reimbursement Program, the equipment and services eligible for Reimbursement Program disbursements, and the prioritization of Reimbursement Program Funds.
30. The proposed action is authorized under sections 4(i), 201(b), 214, 254, 303(r), 403, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201(b), 214, 254, 303(r), 403 and 503, Division N, Title IX, section 901 of the CAA, 47 U.S.C. 1603 and 1608.
31. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Pursuant to the RFA, the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the SBA and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
32.
33. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of Aug 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS). Data from the Urban Institute, National Center for Charitable Statistics (NCCS) reporting on nonprofit organizations registered with the IRS was used to estimate the number of small organizations. Reports generated using the NCCS online database indicated that as of August 2016 there were 356,494 registered nonprofits with total revenues of less than $100,000. Of this number, 326,897 entities filed tax returns with 65,113 registered nonprofits reporting total revenues of $50,000 or less on the IRS Form 990-N for Small Exempt Organizations and 261,784 nonprofits reporting total revenues of $100,000 or less on some other version of the IRS Form 990 within 24 months of the
34. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. The Census of Governments survey is conducted every five (5) years compiling data for years ending with “2” and “7”. Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.” Local governmental jurisdictions are made up of general purpose governments (county, municipal and town or township) and special purpose governments (special districts and independent school districts). There were 2,105 county governments with populations less than 50,000. This category does not include subcounty (municipal and township) governments. There were 18,729 municipal and 16,097 town and township governments with populations less than 50,000. There were 12,040 independent school districts with enrollment populations less than 50,000. While the special purpose governments category also includes local special district governments, the 2017 Census of Governments data does not provide data aggregated based on population size for the special purpose governments category. Therefore, only data from independent school districts is included in the special purpose governments category. This total is derived from the sum of the number of general purpose governments (county, municipal and town or township) with populations of less than 50,000 (36,931) and the number of special purpose governments—independent school districts with enrollment populations of less than 50,000 (12,040), from the 2017 Census of Governments—Organizations Tables 5, 6, and 10.
35. Small entities potentially affected by the proposals herein include eligible schools and libraries, eligible rural non-profit and public health care providers, and the eligible service providers offering them services, including telecommunications service providers, internet Service Providers (ISPs), and vendors of the services and equipment used for telecommunications and broadband networks.
36. The FNPRM proposes rules that: Raise the eligibility threshold in the Reimbursement Program for providers of advanced communications service from two million to ten million customers, restrict the use of Reimbursement Program funds to equipment or services produced or provided by any company deemed to pose a national security threat to the integrity of communications networks or the communications supply chain, make equipment and services obtained on or before June 30, 2020 eligible for reimbursement, and revise a prioritization scheme to award Reimbursement Program funding. The Commission seeks comment on these proposals, and their likely costs and benefits, as well as on alternative approaches and any other steps it should consider taking.
37. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
38. In compliance with the CAA, the FNPRM proposes to increase the pool of eligible participants in the Reimbursement Program to all providers of advanced communications services with ten million or fewer customers, limit the use of Reimbursement Program funding to remove, replace, and dispose of to allow Reimbursement Program allocations to be used to remove, replace, and dispose of equipment or services produced or provided by any company deemed to pose a national security threat to the integrity of communications networks or the communications supply chain, make equipment and services obtained on or before June 30, 2020 eligible for reimbursement, and revise the prioritization scheme to prioritize advanced communications service providers with two million or fewer customers, then public or private non-commercial educational institutions providing their own facilities-based educational broadband services, and then to any remaining eligible applicants.
39. The Commission expects to take into account the economic impact on small entities, as identified in comments filed in response to the FNPRM and this IRFA, in reaching the Commission's final conclusions and promulgating rules in this proceeding. The FNPRM generally seeks comment on how to adopt enacted legislation that mandates action by the Commission and seeks specific comment on how to mitigate the impact on small entities.
40.
41. Accordingly,
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For the reasons discussed in the preamble, the Federal Communication Commission proposes to amend 47 parts 1 and 54 as follows:
47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461, unless otherwise noted.
(a)
(1) As defined in the Report and Order of the Commission in the matter of Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs (FCC 19-121; WC Docket No. 18-89; adopted November 22, 2019 (in this section referred to as the `Report and Order'); or
(2) As determined to be covered by both the process of the Report and Order and the Designation Orders of the Commission on June 30, 2020 (DA 20-690; PS Docket No. 19-351; adopted June 30, 2020) (DA 20-691; PS Docket No. 19-352; adopted June 30, 2020) (in this section collectively referred to as the `Designation Orders');
(f)
Advanced communication service providers with 2 million or fewer customers.
Advanced communications service providers that are accredited public or private non-commercial educational institutions providing their own facilities-based educational broadband service, as defined in 47 CFR 27.4.
Any remaining approved applicants determined to be eligible for reimbursement under the Program.
(i) * * *
(1) * * *
(i) On or after publication of the Report and Order; or
(ii) In the case of any covered communications equipment that only became covered pursuant to the Designation Orders, June 30, 2020; or
(q)
(1) A person who provides advanced communications service to United States customers; and includes:
(i) Accredited public or private non-commercial educational institutions, providing their own facilities-based educational broadband service, as defined in 47 CFR 27.4; and
(ii) Health care providers and libraries providing advanced communications service.
(2) [RESERVED]
47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 229, 254, 303(r), 403, 1004, and 1302, unless otherwise noted.
(b) For purposes of paragraph (a) of this section, covered communications equipment or services means any communications equipment or service produced or provided by a covered company posing a national security threat to the integrity of communications networks or the communications supply chain.
Federal Communications Commission.
Proposed rule.
In this document, the Wireline Competition Bureau seeks comment on the provision of support from the Emergency Connectivity Fund consistent with section 7402 of the American Rescue Plan Act of 2021.
Comments are due April 5, 2021, and reply comments are due April 23, 2021.
All filings should refer to WC Docket No. 21-93. Comments may be filed by paper or by using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by commercial overnight courier or by first-class or overnight U.S. Postal Service mail. Filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L St. NE, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the Federal Communications Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19.
Molly O'Conor, Wireline Competition Bureau, (202) 418-7400 or by email at
This is a summary of the Wireline Competition Bureau's Public Notice in WC Docket No. 21-93; DA 21-317, released on March 16, 2021. Due to the COVID-19 pandemic, the Federal Communications Commission's headquarters will be closed to the general public until further notice. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020).
1. The Commission's E-Rate program is a vital source of support for connectivity to—and within—schools and libraries. In particular, the E-Rate program provides funding for internal connections, which are primarily used for Wi-Fi, a technology that has enabled schools and libraries to transition from computer labs to one-to-one digital learning. Today, we make permanent the “category two budget” approach that the Commission adopted in 2014 to fund these internal connections. The category two budget approach consists of five-year budgets for schools and libraries that provide a set amount of funding to support internal connections. In adopting this approach, the Commission also established a five-year test period (from funding year 2015 to funding year 2019), to consider whether this approach would be effective in ensuring greater and more equitable access to E-Rate discounts.
2. The coronavirus (COVID-19) pandemic is a national health emergency with far reaching consequences for all segments of our society. Last spring, to reduce the transmission of coronavirus in their communities, most of our Nation's schools and libraries shut their doors and transitioned to virtual learning—and today many schools and libraries remain fully or partially closed. Students who lack home broadband access and were therefore caught in the “Homework Gap” before the pandemic now find themselves at risk of being unable to participate in any remote learning. At the same time, the closure of many libraries means that library patrons who were previously dependent on computer and internet access at their local libraries lost all broadband access.
3. To help schools and libraries provide devices and connectivity to students, school staff, and library patrons during the pandemic, Congress established a $7.171 billion Emergency Connectivity Fund (Fund) as part of the recently enacted American Rescue Plan Act of 2021 (the American Rescue Plan or Act). Congress directed the Federal Communications Commission (Commission)to promulgate rules providing for the distribution of funding from the Emergency Connectivity Fund to eligible schools and libraries for the purchase of eligible equipment and advanced telecommunications and information services for use by students, school staff, and library patrons at locations other than a school or library. By this document, the Wireline Competition Bureau (Bureau) seeks comment on the provision of support from the Emergency Connectivity Fund consistent with section 7402 of the American Rescue Plan.
4.
5. The COVID-19 emergency period is defined in section 7402 of the American Rescue Plan as beginning on January 27,
6.
7. Section 7402(c)(3) of the American Rescue Plan specifies that not more than two percent of the $7.171 billion made available for the provision of support to eligible schools and libraries may be used for the purposes of the Commission adopting, and USAC administering, the rules required by the Act. The Bureau seeks comment on ways to ensure that the Commission and USAC efficiently and effectively oversee and administer the Emergency Connectivity Fund.
8. The Bureau also seeks comment on how to best measure the Commission's and USAC's performance in efficiently and effectively administering this Fund. Should the Commission adopt specific broadband adoption goals for students, school staff, and library patrons? If so, what should those goals be? Should the Commission adopt specific goals for ensuring students, school staff, and library patrons have end user devices for connecting to the internet? If so, what should those goals be? What data is available that could help establish a baseline against which the Commission can measure the impact of the Emergency Connectivity Fund? Do schools and libraries conduct assessments of their students', school staffs', and library patrons' need for eligible equipment and services? If so, how have those assessments informed schools' and libraries' purchasing decisions during the pandemic? What information should the Commission direct USAC to collect to enable the Commission to evaluate progress towards meeting its goals? Should the Commission adopt specific performance goals and measures with respect to the administration of the Fund as it has done for the E-Rate program? If so, what should those performance goals be?
9.
10. The Bureau recognizes that section 7402(d)(7) of the American Rescue Plan specifies that Tribal schools and libraries are eligible for funding from the Emergency Connectivity Fund. Of course, elementary and secondary Tribal schools, including those operated by the Bureau of Indian Affairs and by Tribal governments, have traditionally received E-Rate support and, pursuant to the Bureau's proposed approach, would be eligible for support through the Emergency Connectivity Fund. The Bureau seeks comment on whether there are any changes the Commission should make to the definitions of elementary and secondary schools to ensure that all Tribal schools are eligible for funding. Some Tribal libraries have also received E-Rate support, but historically Tribal libraries have been underrepresented among E-Rate applicants. In order to be eligible for E-Rate funding under the Commission's existing rules, a library must be eligible for funding from a state library agency under the Library Services and Technology Act (LSTA), which was amended in 2018 to make clear that Tribal libraries are eligible for support from a state library agency under LSTA. The E-Rate rules have not yet been revised to reflect that change to the LSTA. Consistent with the 2018 revisions to LSTA, the Bureau seeks comment on whether the Commission should clarify that Tribal libraries are eligible for support under LSTA and are, therefore, eligible for funding from the Emergency Connectivity Fund. The Bureau also seeks comment on whether there are other measures the Commission can take to ensure Tribal schools and libraries have access to the Emergency Connectivity Fund.
11.
12. Section 7402(d)(6) of the American Rescue Plan defines eligible equipment as Wi-Fi hotspots, modems, routers, devices that combine a modem and router, and connected devices. Wi-Fi hotspot is defined as “a device that is capable of receiving advanced telecommunications and information services; and sharing such services with another connected device through the use of Wi-Fi.” Connected devices are defined as laptop computers, tablet computers, or similar end-user devices that are capable of connecting to advanced telecommunications and information services. The Bureau proposes to use the same definitions for eligible equipment in the Commission's rules implementing section 7402 of the American Rescue Plan, and seeks comment on doing so. Is more specificity required? For example, should the Bureau clarify that modems include wireless modems, such as air cards? Should the Commission provide any further guidance regarding what sorts of connected devices are eligible for reimbursement through the Emergency Connectivity Fund? Is there a commonly understood definition of a tablet computer that the Bureau should use to ensure that the available funds are directed toward their intended purpose? Although not specifically identified, should desktop computers be eligible for funding as “similar end-user devices” that are capable of connecting to “advanced telecommunications and information services”? The Bureau seeks comment on these questions and whether greater specificity or clarification is required with regard to eligible equipment.
13. Recognizing that participating in remote learning requires a device that can support an array of learning technologies, including video conferencing platforms, the Bureau proposes that a connected device supported through the Emergency Connectivity Fund be able to support video conferencing platforms and other software necessary to ensure full participation in remote learning activities. In this regard, the Bureau specifically proposes not to include mobile phones (
14. The Bureau recognizes that people with disabilities have faced additional challenges as a result of the pandemic-necessitated transition to remote learning. For that reason, in the
15. The Bureau also seeks comment on how to define “advanced telecommunications and information services” for purposes of the Emergency Connectivity Fund. The E-Rate program provides support for what are called “category one” services (which provide connectivity
16. Additionally, although section 7402 of the American Rescue Plan limits the specific equipment eligible for funding through the Emergency Connectivity Fund, should the Commission interpret “advanced telecommunications and information services” to include the equipment necessary to deliver these services to connected devices as eligible? Should installation costs, taxes, and fees be included as an allowable cost? In interpreting “advanced telecommunications and information services” eligible for support, are there equipment or services that would be particularly helpful to people with different types of disabilities?
17. The Bureau also seeks comment on whether the Commission should impose minimum service standards and data thresholds with respect to those services in order to consider them to be eligible advanced telecommunications and information services. If so, what should they be? In that regard, the
18.
19. Recent studies suggest that between $6 to $12 billion in funding is needed to provide connectivity and connected devices to all students and teachers who currently lack sufficient broadband access and/or devices to fully engage in remote learning. To maximize available funds, the Bureau proposes that the Commission require that schools document the student(s) and staff member served at each supported location and prohibit schools from providing more than one supported connection and more than one connected device to each student or staff member. Likewise, the Bureau proposes that the Commission require libraries to document the patron or patrons served at each supported location and prohibit libraries from providing more than one supported connection and one connected device to any one patron at a given time. In proposing this approach to limit one device per student, school staff member, or library patron, the Bureau seeks to avoid unnecessarily providing funding for multiple connected devices to individual students, school staff, and library patrons. The Bureau recognizes that in some cases, schools or libraries may purchase Wi-Fi hotspots to provide cost-effective access to multiple students, school staff, or library patrons at the same time. For example, some schools have installed Wi-Fi hotspots on buses to provide broadband service to students and school staff located in the areas where the buses are deployed. The Bureau proposes that the Commission adopt rules to allow schools to use Wi-Fi hotspots on buses to provide broadband services to students and school staff who currently lack sufficient broadband access to fully engage in remote learning. The Bureau also proposes that the Commission adopt rules to allow libraries to use Wi-Fi hotspots in bookmobiles to serve library patrons who currently lack sufficient broadband access. Are there other places schools and libraries should be able to place Wi-Fi hotspots to provide broadband to students, school staff, and library patrons who currently lack broadband access? Are there other approaches to funding broadband access to multiple students that the Commission should incorporate into its rules implementing the Emergency Connectivity Fund? For example, some school districts have bulk purchase programs to provide free broadband service to students and their families. Would this proposed approach allow other school districts to establish similar programs?
20. While seeking to ensure that schools and libraries do not seek funding for more equipment and services than they need, the Bureau also recognizes that connected devices and other eligible equipment can break. The Bureau therefore seeks comment on what, if any, allowances or controls may be necessary to allow schools and libraries to remediate such issues and how the Commission can prevent warehousing of unnecessary equipment and connected devices?
21.
22. If the Commission adopts this approach, what guidance should the
23.
24. As an initial matter, the Bureau seeks comment on whether the Commission should reimburse for purchases of eligible equipment and services made by eligible schools and libraries since January 27, 2020. Do commenters interpret the American Rescue Plan as requiring the Commission to do so, subject to the Commission's authority to determine reasonable costs for eligible equipment and services? If the Commission has the authority to set a different date, what date should it choose and why?
25. The E-Rate specific competitive bidding rules are a crucial driver of cost-effective purchasing and protecting limited E-Rate funds from waste, fraud, and abuse. However, the Bureau recognizes that many schools and libraries have already entered into contracts to purchase eligible equipment and services to meet the remote learning needs of their students, school staff, and patrons. The Bureau therefore proposes to allow eligible schools and libraries to seek reimbursement for the cost of eligible equipment and services purchased without having conducted a Commission-mandated competitive bidding process for purposes of the Emergency Connectivity Fund. Instead, the Bureau proposes that the Commission require schools and libraries seeking funding from the Emergency Connectivity Fund to certify that they have complied with all applicable state, Tribal, or local procurement requirements with respect to the contracts they used to purchase eligible equipment and services. Can the Commission reasonably assume that schools and libraries that complied with applicable state, local and Tribal procurement requirements purchased eligible equipment and services at reasonable prices? The Bureau recognizes that there are some eligible schools and libraries, those that are operated by non-profit entities, that do not have state, Tribal, or local procurement requirements. The Bureau seeks comment on how to ensure that the costs of their purchases are reasonable.
26. The Bureau also seeks comment on whether the Commission should adopt a streamlined competitive bidding process to be used by eligible schools and libraries that have not yet purchased or entered into contracts to purchase eligible equipment and/or services. In adopting such a process, should the Commission reduce to 14 days the time that an applicant must wait to enter into a contract with a service provider after posting a request for bids? Are there other ways the Commission could streamline the competitive bidding process? For example, should the Commission adopt the modified competitive bidding rules adopted in the
27. In deciding what amount is reasonable to reimburse applicants for previous purchases or pay for new purchases, the Bureau also seeks comment on whether the Commission should establish a range of costs that are reasonable for each category of equipment and service eligible for funding through the Emergency Connectivity Fund (
28. For example, in response to the
29. Alternatively, should the amount the Commission considers reasonable for each category of eligible equipment and service vary depending on location (
30. The Bureau further seeks comment on whether the Commission should establish one or more funding caps and, if so, what such caps should be? For example, should there be a funding cap on any type of eligible equipment or service? If the Commission were to establish any funding cap, the Bureau seeks comment on whether and how a cap could assist the Commission in targeting the Emergency Connectivity Fund support to those students, school staff, and library patrons that are most in need and how to determine which students, school staff, and library patrons have the greatest need.
31. The E-Rate program provides greater discounts to schools and libraries that serve lower-income and rural populations. Should the Commission consider accounting for other factors such as poverty, rurality, and/or broadband availability in the Emergency Connectivity Fund? Recognizing the trust relationship between Tribal governments and the federal government, should the Commission allocate a portion of the Emergency Connectivity Fund for Tribal schools and libraries to ensure Tribal students, school staff and library patrons benefit from the Emergency Connectivity Fund? If so, what portion of the fund should the Commission set aside for Tribal schools and libraries?
32.
33. The current E-Rate application filing window for funding year 2021 closes March 25, 2021, so opening an Emergency Connectivity Fund filing window after that date will not interfere with the regular E-Rate application filing window. The Bureau seeks comment on this proposal. Is 30 days an appropriate filing window length? Although the Bureau expects demand will be high for the first funding window, if demand does not exceed available funds for the first application period, the Bureau also proposes that the Commission direct USAC to open a filing window for the Emergency Connectivity Fund in the second quarter of every year (
34. With respect to the applications themselves, the Bureau proposes and seeks comment on leveraging the current E-Rate forms to apply for support from the Emergency Connectivity Fund. The Bureau believes that modifying the current forms, with which applicants are already familiar, will provide the simplest process for applying for and receiving funding through the Emergency Connectivity Fund. Do commenters agree or have any concerns about this approach? In addition, the Bureau seeks comment on what other aspects of the application process the Commission should borrow from the existing E-Rate program (
35.
36. For example, recognizing that the proposed prioritization scheme based on the existing discount methodology may not adequately address the needs of all students, school staff, and library patrons, particularly for those students enrolled in schools that qualify for a lower discount but still lack a broadband connection or connected device at home, should the Commission instead prioritize funding requests to target the needs of those students, school staff, and library patrons without adequate broadband access at home and/or that lack a connected device? If so, how would eligible schools and libraries identify this population in advance of a filing window? Should the Commission prioritize funding for future purchases rather than reimbursements for already purchased equipment and services, and would doing so target funds to those students, school staff, and library patrons who remain unconnected? Miami-Dade County Public Schools suggests retroactive reimbursement for device purchases but only prospective funding for services. Would doing so target funds to unconnected students? Would it unreasonably penalize schools and libraries that have allocated limited resources to getting students, school staff, and library patrons broadband services? Should the Commission require eligible schools and libraries to certify that they will make best efforts to prioritize these students, school staff, and library patrons? Or, should the Commission establish formal rules requiring a written policy or plan for distribution? In the event of a certification, rules, or other reporting requirements, are audits the best manner to ensure compliance with this prioritization? Alternatively, should the Commission prioritize funding requests for prior purchases over requests submitted for new purchases?
37.
38.
39.
40.
41. The Bureau recognize that some state entities apply for E-Rate program funding as a consortium on behalf of the eligible schools and libraries located within the state. The Bureau seeks comment on whether these applicants should be allowed to seek reimbursement for eligible equipment and services through the Emergency Connectivity Fund when state funding was used to purchase equipment and services necessary for the state's students to engage in remote learning during the emergency period. Would the Commission maximize the Emergency Connectivity Fund by prohibiting reimbursement for eligible equipment and services that were purchased with state funding? Would the Commission harm these applicants by prohibiting reimbursement of eligible equipment and services when state funding was used? The Bureau seeks comment on these issues and other ways to prevent duplicative funding between the Emergency Connectivity Fund and other funding programs.
42.
43. As part of the documentation related to their compliance with the rules adopted by the Commission, the Bureau proposes that Emergency
44. Given the limited financial support that is available through the Emergency Connectivity Fund, the Bureau believes that if students, school staff, and library patrons are not using the funded services, the Fund should not be paying for these services. To protect the Emergency Connectivity Fund from waste, fraud, and abuse, the Bureau seeks comment on requiring service providers providing monthly services reimbursed through this Fund to report and validate usage of the supported services provided after adoption of new rules. In the event there is non-usage during a service month, the Bureau seeks comment on requiring the service provider to notify the school or library regarding the non-usage and to remove the cost for any non-used service from the invoice provided to the school or library. In the Emergency Broadband Benefit Program, service providers are required to certify that every subscriber claimed has used their supported service, as defined by § 54.407(c)(2) of the Commission's rules, at least once during the service month being claimed to be able to claim that subscriber for reimbursement in that month. What are the costs and benefits of such an approach? The Bureau seeks comment on whether existing contracts negotiated to purchase eligible equipment and services include provisions on non-usage and if not, what are the implications for addressing and preventing non-usage on a going-forward basis? The Bureau further seeks comment on other ways to ensure devices and services supported through the Emergency Connectivity Fund are being used and to limit any non-usage of these services and devices.
45. To ensure the integrity of whatever procurement process requirements the Commission decides to adopt for purposes of the Emergency Connectivity Fund, the Bureau seeks comment on whether the Commission should apply the gift rule applicable to the E-Rate program, or some version of the rule, here. The E-Rate program's gift rule prohibits E-Rate applicants from soliciting or accepting any gift or other thing of value from a service provider participating in or seeking to participate in the program, and similarly, prohibits service providers from offering or providing any gift or other thing of value to those personnel of eligible entities. In response to the pandemic, and in light of the urgent and increased need for connectivity and connected devices, in March 2020 (85 FR 59196, Sept. 21, 2020), the Bureau temporarily waived this rule, and subsequently extended the waiver, to help schools and libraries work with service providers as they transitioned to remote learning. The Bureau seeks comment on whether it would be appropriate for the Commission to adopt the same or similar restrictions on gifts for purposes of the Emergency Connectivity Fund. If the Commission adopts gift restrictions for the Emergency Connectivity Fund, should it do so on a going-forward basis only, recognizing that many schools and libraries may have taken advantage of free or discounted connections and devices offered by service providers when they made their purchases? The Bureau also seeks comment on whether gift restrictions should not be adopted for the Emergency Connectivity Fund because of the ongoing COVID-19 pandemic.
46. The Bureau further proposes that Emergency Connectivity Fund participants be subject to compliance audits to ensure compliance with the rules and requirements for the Emergency Connectivity Fund and must provide documentation related to their participation in the Emergency Connectivity Fund in connection with any such audit. The Bureau proposes that the Commission authorize USAC to conduct audits and establish procedures to verify support amounts provided through the Emergency Connectivity Fund. The Bureau seeks comment on this proposal.
47. The Bureau seeks comment on what other compliance mechanisms and safeguards should be implemented to protect the Emergency Connectivity Fund from waste, fraud, and abuse and to ensure the funds are being used to provide eligible equipment and advanced telecommunications services and information services necessary for students, school staff, and library patrons to fully engage in remote learning. In addition, other than the certifications for which the Bureau already seeks comment, should the Commission require Emergency Connectivity Fund participants (
48.
49.
50.
51.
Communications common carriers, Internet, Libraries, Reporting and recordkeeping requirements, Schools, Telecommunications.
Federal Communications Commission.
Proposed rule.
The Commission has before it a petition for rulemaking filed by Gray Television Licensee, LLC (Gray or Licensee), the licensee of television station KSNB-TV, channel 4, Superior, Nebraska, requesting an amendment of the DTV Table of Allotments to delete VHF channel 4 at Superior, Nebraska and allot it to York, Nebraska, and substitute UHF channel 24 at York for channel 4.
Comments must be filed on or before April 21, 2021 and reply comments on or before May 6, 2021.
Federal Communications Commission, Office of the Secretary, 45 L Street NE, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Joan Stewart, Esq., Wiley Rein LLP, 1776 K Street NW, Washington, DC 20006.
Joyce Bernstein, Media Bureau, at (202) 418-1647 or
According to Gray, problems with the reception of low-band digital channels are well known, and many viewers who receive a predicted principal community signal from KSNB-TV on channel 4 are unable to receive a reliable over-the-air signal, particularly when using indoor antennas. Gray also applied to co-locate KSNB-TV with commonly-owned KOLN, Lincoln, Nebraska, a move of approximately 23.5 kilometers, and a change in community from Superior to York is necessary for KSNB-TV to make that move because it cannot put the required principal community signal over Superior from a channel 24 facility on the KOLN tower.
Gray asserts that York qualifies as a community for allotment purposes, has no local television allotment, and is the largest community in York County. Petitioner further asserts that while Superior will lose its only local television allotment, York is more deserving of an allotment, given its size and community and economic attributes. Thus, Gray seeks a waiver of the Commission policy that the removal of a community's first local service is presumptively inconsistent with the public interest except in the rare instance where removal might serve the public interest. Gray further requests a waiver of § 1.420(i) of the rules which provides that the Commission may modify a station's community of license without affording competing expressions of interest, where the modified facility is mutually exclusive; the channel 24 proposal at York is not mutually exclusive with KSNB-TV's current licensed operation on channel 4 at Superior.
The
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
Members of the public should note that all
See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.
Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, and 339.
Federal Communications Commission.
Proposed rule.
The Video Division has before it a petition for rulemaking filed November 27, 2020 (Petition) by Dominion Broadcasting, Inc. (Petitioner), the licensee of WLMB (IND), channel 5, Toledo, Ohio (WLMB or Station). The Petitioner requests the substitution of channel 35 for channel 5 at Toledo, Ohio in the DTV Table of Allotments.
Comments must be filed on or before April 21, 2021 and reply comments on or before May 6, 2021.
Federal Communications Commission, Office of the Secretary, 45 L Street NE, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Joseph C. Chautin, III, Esq., Hardy, Carey, Chautin & Balkin, LLP, 1080 West Causeway Approach, Mandeville, LA 70471.
Shaun Maher, Video Division, Media Bureau, at (202) 418-2324 or
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
Members of the public should note that all
See §§ 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.
In support of its channel substitution request, the Petitioner states that, since the Station transitioned to channel 5 in 2008 in conjunction with the Commission's digital television transition, it has regularly received complaints from viewers unable to receive the Station's over-the-air signal. Petitioner states that these issues have “continued unabated” for twelve years. Petitioner further states that it “has been forced to constantly scramble to retain viewers with a variety of methods, some costly.” Petitioner maintains that these propagation problems have put WLMB at a distinct competitive disadvantage to the other stations broadcasting in the Toledo market. Petitioner states that the Commission has long since recognized that “VHF channels have certain characteristics that have posed challenges for their use in providing digital television service” and that the Station's experience is no different.
To remedy its propagation problems, Petitioner proposes substituting UHF channel 35 for VHF channel 5. Petitioner provides an Engineering Statement that it claims confirms that, with WLMB's proposed parameters, including a 375 kW ERP, channel 35 can be substituted for channel 5 at Toledo, Ohio, in compliance with the Commission's rules. Petitioner states that the proposed facility would continue to provide a principal community contour completely covering WLMB's community of license and would not cause impermissible interference to any station.
Petitioner contends that the Engineering Statement also confirms
Petitioner claims that the Commission will approve a proposed channel substitution that includes a loss of service if the proposal is “supported by a strong showing of countervailing public interest,” such as offsetting service gains. Given the persistent feedback WLMB has received about reception issues within the Station's core coverage area, Petitioner maintains that any “nominal population loss” in outlying areas of the station's contour would be more than outweighed by the substantial improvement in the Station's actual over-the-air reception within its community of license and in other core portions of its service area. Petitioner concludes that the proposed substitution of channel 35 therefore would serve the public interest by giving Toledo-area residents greater, more reliable access to WLMB's free over-the air signal, with few if any viewers losing access to robust over-the-air service.
We believe that Petitioner's channel substitution proposal warrants consideration. Channel 35 can be substituted for channel 5 at Toledo, Ohio, as proposed, in compliance with the principal community coverage requirements of § 73.625(a) of the Commission's rules (rules), 18 at coordinates 41-44-41 N and 084-01-06 W. In addition, we find that this channel change meets the technical requirements set forth in §§ 73.616 and 73.623 of the rules. Given its location, we note that Petitioner's proposal is subject to coordination with Canada. Although substituting channel 35 for channel 5 would result in a loss of service to approximately 735,018 persons, we agree with Petitioner that the loss area is “well-served” by at least five other television stations. Further, although Petitioner's proposal would result in a loss of service to approximately 388 people that would not otherwise be “well-served,” we find such a loss area to be de minimis.
Television.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(i) * * *
Federal Communications Commission.
Proposed rule; correction.
The Federal Communications Commission published a document in the
March 22, 2021.
Andrew Manley,
In FR Doc. 2021-04635, in the
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Mississippi Advisory Committee (Committee) will hold a meeting via web conference on Wednesday, April 7, 2021 at 12:00pm Central Time. The Committee's purpose is to review and discuss testimony received regarding the qualified immunity of law enforcement in the state.
The meeting will be held on Wednesday, April 7, 2021 from 12:00-1:00 p.m. Central Time.
Melissa Wojnaroski, DFO, at
Members of the public may listen to this discussion through the above call in number. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to submit written comments; the comments must be received by the regional office within 30 days following the meeting. Written comments may be emailed to Corrine Sanders at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Virginia Advisory Committee to the U.S. Commission on Civil Rights (Committee) will hold a meeting via web conference on Friday, April 2, 2021 at 12:30 p.m. Eastern Time. The purpose of the meeting is to discuss panelist nominations for the Committee's forthcoming study on policing accountability in the state.
The meeting will be held on Friday, April 2, 2021, at 12:30 p.m. Eastern Time
Melissa Wojnaroski, DFO, at
Members of the public may listen to this discussion through the above call in number. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and access code.
Members of the public are entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Melissa Wojnaroski at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that POSCO and certain other producers/exporters of certain carbon and alloy steel cut-to-length plate (CTL plate) from the Republic of Korea (Korea) received
Applicable March 22, 2021.
Faris Montgomery or Bob Palmer, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1537 and (202) 482-9068, respectively.
On July 27, 2020, Commerce published the
The product covered by the
All issues raised by parties in the case and rebuttal briefs are addressed in the Issues and Decision Memorandum. A list of the issues addressed in the Issues and Decision Memorandum is provided in the appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on the comments received from interested parties and record information, we made changes to the net subsidy rate calculated for the mandatory respondent POSCO. For a discussion of these issues,
As noted in the
Commerce conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we find that there is a subsidy,
The statute and Commerce's regulations do not directly address the establishment of rates to be applied to companies not selected for individual examination where Commerce limits its examination in an administrative review pursuant to section 777A(e)(2) of the Act. However, Commerce normally determines the rates for non-selected companies in reviews in a manner that is consistent with section 705(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation. We also note that section 77A(e)(2) of the Act provides that “the individual countervailable subsidy rates determined under subparagraph (A) shall be used to determine the all-others rate under section 705(c)(5) {of the Act}.” Section 705(c)(5)(A)(i) of the Act states that, in general, for companies not investigated, we will determine an all-other rate by using the weighted-average countervailable subsidy rates established for each of the companies individually investigated, excluding zero and
In the final results of this review, we calculated a
We
Commerce intends to disclose the calculations performed for these final results of review within five days of the date of publication of this notice in the
Consistent with its recent notice,
In accordance with section 751(a)(1) of the Act, Commerce intends to instruct CBP to continue to suspend liquidation but to collect no cash deposits of estimated countervailing duties on shipments of the subject merchandise by the companies under review entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of review.
For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposits, when imposed, shall remain in effect until further notice.
This notice also serves as a reminder to parties subject to APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
These final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
1. BDP International
2. Blue Track Equipment
3. Boxco
4. Bukook Steel Co., Ltd.
5. Buma CE Co., Ltd.
6. China Chengdu International Techno-Economic Cooperation Co., Ltd.
7. Daehan I.M. Co., Ltd.
8. Daelim Industrial Co., Ltd.
9. Daesam Industrial Co., Ltd.
10. Daesin Lighting Co., Ltd.
11. Daewoo International Corp.
12. Dong Yang Steel Pipe
13. Dongbu Steel Co., Ltd.
14. Dongkuk Industries Co., Ltd.
15. EAE Automotive Equipment
16. EEW KHPC Co., Ltd.
17. Eplus Expo Inc.
18. GS Global Corp.
19. Haem Co., Ltd.
20. Han Young Industries
21. Hyosung Corp.
22. Jinmyung Frictech Co., Ltd.
23. Kindus Inc.
24. Korean Iron and Steel Co., Ltd.
25. Kyoungil Precision Co., Ltd.
26. Samsun C&T Corp.
27. Shipping Imperial Co., Ltd.
28. Sinchang Eng Co., Ltd.
29. SK Networks Co., Ltd.
30. SNP Ltd.
31. Steel N People Ltd.
32. Summit Industry
33. Sungjin Co., Ltd.
34. Young Sun Steel
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and exporters of certain chassis and subassemblies thereof (chassis) from the People's Republic of China (China). The period of investigation is January 1, 2019, through December 31, 2019.
Applicable March 22, 2021.
William Langley or Nicholas Czajkowski, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3861 or (202) 482-1395, respectively.
The petitioner in this investigation is the Coalition of American Chassis Manufacturers. In addition to the Government of China (GOC), the selected mandatory respondents are Qingdao CIMC Special Vehicles Co., Ltd. (QCVC) and Dongguan CIMC Vehicle Co., Ltd. (DCVC) (collectively, with other cross-owned companies, CIMC).
On January 4, 2021 Commerce published in the
The products covered by this investigation are certain chassis and subassemblies thereof from China. For a complete description of the scope of this investigation,
During the course of this and the concurrent antidumping duty (AD) investigation, Commerce received scope comments from interested parties. Commerce issued a Preliminary Scope Decision Memorandum to address these comments.
The subsidy programs under investigation and the issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues raised by parties raised is attached to this notice at Appendix II.
Commerce conducted this investigation in accordance with section 701 of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, Commerce determines that there is a subsidy,
In making this final determination, Commerce is relying, in part, on facts otherwise available, including adverse facts available (AFA), pursuant to sections 776(a) and (b) of the Act. For a full discussion of our application of AFA,
Based on our review and analysis of the comments received from parties, as well as additional information collected in questionnaires issued subsequent to the
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Act.
As discussed in the
In this investigation, Commerce calculated a rate for CIMC that is not
Commerce determines that the following estimated countervailable subsidy rates exist:
Commerce intends to disclose to interested parties its calculations and analysis performed in this final determination within five days of its public announcement, or if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As a result of our
In accordance with section 705(c)(1)(C) of the Act, we are directing CBP to continue to suspend liquidation of all imports of the subject merchandise from China that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will issue a CVD order, and continue to require a cash deposit of estimated countervailing duties for such entries of subject merchandise in the amounts indicated above, in accordance with section 706(a) of the Act. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated, and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of its final affirmative determination that countervailable subsidies are being provided to producers and exporters of chassis from China. Because the final determination in this proceeding is affirmative, in accordance with section 705(b) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of corrosion inhibitors from China no later than 45 days after our final determination. In addition, we are making available to the ITC all non-privileged and nonproprietary information related to this investigation. If the ITC determines that material injury or threat of material injury does not exist, this proceeding will be terminated and all cash deposits will be refunded. If the ITC determines that such injury does exist, Commerce will issue a countervailing duty order directing CBP to assess, upon further instruction by Commerce, countervailing duties on all imports of the subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order (APO), without the written consent of the Assistant Secretary for Enforcement and Compliance.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to the APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published pursuant to sections 705(d) and 771(i) of the Act, and 19 CFR 351.210(c).
The merchandise covered by this investigation is chassis and subassemblies thereof, whether finished or unfinished, whether assembled or unassembled, whether coated or uncoated, regardless of the number of axles, for carriage of containers, or other payloads (including self-supporting payloads) for road, marine roll-on/roll-off (RORO) and/or rail transport. Chassis are typically, but are not limited to, rectangular framed trailers with a suspension and axle system, wheels and tires, brakes, a lighting and electrical system, a coupling for towing behind a truck tractor, and a locking system or systems to secure the shipping container or containers to the chassis using twistlocks, slide pins or similar attachment devices to engage the corner fittings on the container or other payload.
Subject merchandise includes, but is not limited to, the following subassemblies:
• Chassis frames, or sections of chassis frames, including kingpin assemblies, bolsters consisting of transverse beams with locking or support mechanisms, goosenecks, drop assemblies, extension mechanisms and/or rear impact guards;
• Running gear assemblies or axle assemblies for connection to the chassis frame, whether fixed in nature or capable of sliding fore and aft or lifting up and lowering down, which may or may not include suspension(s) (mechanical or pneumatic), wheel end components, slack adjusters, axles, brake chambers, locking pins, and tires and wheels;
• Landing gear assemblies, for connection to the chassis frame, capable of supporting the chassis when it is not engaged to a tractor; and
• Assemblies that connect to the chassis frame or a section of the chassis frame, such as, but not limited to, pintle hooks or B-trains (which include a fifth wheel), which are capable of connecting a chassis to a converter dolly or another chassis.
Importation of any of these subassemblies, whether assembled or unassembled, constitutes an unfinished chassis for purposes of this investigation.
Subject merchandise also includes chassis, whether finished or unfinished, entered with or for further assembly with components such as, but not limited to: Hub and drum assemblies, brake assemblies (either drum or disc), axles, brake chambers, suspensions and suspension components, wheel end components, landing gear legs, spoke or disc wheels, tires, brake control systems, electrical harnesses and lighting systems.
Processing of finished and unfinished chassis and components such as trimming, cutting, grinding, notching, punching, drilling, painting, coating, staining, finishing, assembly, or any other processing either in the country of manufacture of the in-scope product or in a third country does not remove the product from the scope. Inclusion of other components not identified as comprising the finished or unfinished chassis does not remove the product from the scope.
Individual components entered and sold by themselves are not subject to the investigation, but components entered with or for further assembly with a finished or unfinished chassis are subject merchandise. A finished chassis is ultimately comprised of several different types of subassemblies. Within each subassembly there are numerous components that comprise a given subassembly.
This scope excludes dry van trailers, refrigerated van trailers and flatbed trailers. Dry van trailers are trailers with a wholly enclosed cargo space comprised of fixed sides, nose, floor and roof, with articulated panels (doors) across the rear and occasionally at selected places on the sides, with the cargo space being permanently incorporated in the trailer itself. Refrigerated van trailers are trailers with a wholly enclosed cargo space comprised of fixed sides, nose, floor and roof, with articulated panels (doors) across the rear and occasionally at selected places on the sides, with the cargo space being permanently incorporated in the trailer and being insulated, possessing specific thermal properties intended for use with self-contained refrigeration systems. Flatbed (or platform) trailers consist of load-carrying main frames and a solid, flat or stepped loading deck or floor permanently incorporated with and supported by frame rails and cross members.
The finished and unfinished chassis subject to this investigation are typically classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 8716.39.0090 and 8716.90.5060. Imports of finished and unfinished chassis may also enter under HTSUS subheading 8716.90.5010. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that non-refillable steel cylinders (non-refillable cylinders) from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2019, through December 31, 2019.
Applicable March 22, 2021.
Katherine Sliney and 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) 482-2437 and (202) 482-1168, respectively.
On October 30, 2020, Commerce published its
The POI is July 1, 2019, through December 31, 2019.
The products covered by this investigation are certain non-refillable steel cylinders from China. For a complete description of the scope of this investigation,
On October 23, 2020, we issued the Preliminary Scope Decision Memorandum.
All issues raised in the case briefs and rebuttal briefs submitted by interested parties in this proceeding are discussed in the Issues and Decision Memorandum. A list of the issues raised by parties and responded to by Commerce in the Issues and Decision Memorandum is attached to this notice as Appendix II. The Issues and Decision Memorandum is a public document and is available electronically via Enforcement and Compliance's
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act).
Based on our analysis of the comments received and additional information obtained since our preliminary findings, we made certain changes to the margin calculations for Sanjiang Kai Yuan Co. Ltd (SKY) and Wuyi Xilinde Machinery Manufacture Co., Ltd. (Wuyi Xilinde) since the
No party commented on our preliminary separate rate determinations with respect to the mandatory respondents and the non-individually examined companies; thus, we find no basis to reconsider our preliminary determinations with respect to separate rate status, and we have continued to grant these companies separate rates in this final determination.
Commerce continues to find that the use of facts available is warranted in determining the rate of the China-wide entity, pursuant to sections 776(a)(1) and (a)(2)(A)-(C) of the Act. As discussed in the Issues and Decision Memorandum, Commerce finds that the use of adverse facts available (AFA) is warranted with respect to the China-wide entity because the China-wide entity did not cooperate to the best of its ability to comply with our requests for information and, accordingly, we applied adverse inferences in selecting from the facts available, pursuant to section 776(b) of the Act and 19 CFR 351.308(a).
For the final determination, as AFA, we are assigning the China-wide entity the highest calculated individual dumping margin calculated for SKY, 112.21 percent. Because this constitutes primary information, the statutory corroboration requirement in section 776(c) of the Act does not apply.
Consistent with the
The estimated weighted-average dumping margins are as follows:
We intend to disclose to interested parties the calculations and analysis performed in this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of the publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, we intend to instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all appropriate entries of non-refillable cylinders from China, as described in the appendix to this notice, which were entered, or withdrawn from warehouse, for consumption on or after October 30, 2020, the date of publication of the
Pursuant to section 735(c)(1)(B)(ii) of the Act, upon the publication of this notice, Commerce intends to instruct CBP to require a cash deposit equal to the weighted-average amount by which the normal value exceeds U.S. price as follows: (1) The cash deposit rate for the exporter/producer combinations listed in the table above will be the rate identified in the table; (2) for all combinations of Chinese exporters/
To determine the cash deposit rate, Commerce normally adjusts the estimated weighted-average dumping margin by the amount of domestic subsidy pass-through and export subsidies determined in a companion countervailing duty (CVD) proceeding when CVD provisional measures are in effect. Accordingly, where Commerce makes an affirmative determination for domestic subsidy pass-through or export subsidies, Commerce offsets the calculated estimated weighted-average dumping margin by the appropriate rates. Commerce continues to find that SKY and all non-individually-examined companies found eligible for a separate rate qualify for a double-remedy adjustment. Further, we have continued to adjust the cash deposit rates for SKY, Wuyi Xilinde, all non-individually-examined separate rate companies, and the China-wide entity for export subsidies in the companion CVD investigation by the appropriate export subsidy rates
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation of non-refillable cylinders no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated, and all cash deposits will be refunded. If the ITC determines that material injury or threat of material injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise, entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).
The merchandise covered by this investigation is certain seamed (welded or brazed), non-refillable steel cylinders meeting the requirements of, or produced to meet the requirements of, U.S. Department of Transportation (USDOT) Specification 39, TransportCanada Specification 39M, or United Nations pressure receptacle standard ISO 11118 and otherwise meeting the description provided below (non-refillable steel cylinders). The subject non-refillable steel cylinders are portable and range from 300-cubic inch (4.9 liter) water capacity to 1,526-cubic inch (25 liter) water capacity. Subject non-refillable steel cylinders may be imported with or without a valve and/or pressure release device and unfilled at the time of importation. Non-refillable steel cylinders filled with pressurized air otherwise meeting the physical description above are covered by this investigation.
Specifically excluded are seamless non-refillable steel cylinders.
The merchandise subject to this investigation is properly classified under statistical reporting numbers 7311.00.0060 and 7311.00.0090 of the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise may also enter under HTSUS statistical reporting numbers 7310.29.0025 and 7310.29.0050. Although the HTSUS statistical reporting numbers are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that producers
Applicable March 22, 2021.
Magd Zalok, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4162.
Commerce published the
On April 24, 2020, Commerce tolled all deadlines in administrative reviews by 50 days.
On January 13, 2021, Commerce extended the final results of this review by 60 days.
Commerce conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by this order are welded carbon steel standard pipe and tube products from Turkey. For a full description of the scope, see the Issues and Decision Memorandum (IDM).
All issues raised in the case and rebuttal briefs filed in this administrative review are addressed in the IDM. A list of the topics discussed in the IDM is appended to this notice. The IDM is a public document and is available electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Services System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and comments received from interested parties regarding our
In the
As a result of this administrative review, we are assigning the following weighted-average dumping margins to the manufacturers/exporters listed below for the period of May 1, 2018 through April 30, 2019:
Commerce intends to disclose the calculations performed for these final results of review within five days of the date of publication of this notice in the
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.
In this review, we have calculated weighted-average dumping margin of 12.03 percent for Borusan. When only one weighted-average dumping margin for the individually investigated respondents is not zero,
For entries of subject merchandise during the POR produced by Borusan for which it did not know its merchandise was destined for the United States, and for entries associated with the seven companies for which Commerce found “no shipments” during the POR, Commerce will instruct CBP to liquidate such unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transactions.
Consistent with its recent notice,
The following cash deposit requirements will be effective upon publication of this notice of final results of administrative review in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant POR entries. 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 the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and exporters of certain non-refillable steel cylinders (non-refillable cylinders) from the People's Republic China (China).
Applicable March 22, 2021.
Kristen Johnson or John Conniff, AD/
The petitioner in this investigation is Worthington Industries. The mandatory respondents subject to this investigation are Ningbo Eagle Machinery & Technology Co., Ltd. (Ningbo Eagle) and Wuyi Xilinde Machinery Manufacture Co., Ltd. (Wuyi Xilinde).
On August 28, 2020, Commerce published the
A summary of the events that occurred since Commerce published the
The period of investigation is January 1, 2019, through December 31, 2019.
The products covered by this investigation are non-refillable cylinders from China. For a full description of the scope of this investigation,
On October 23, 2020, Commerce issued the Preliminary Scope Decision Memorandum in which it determined to modify the language of the scope as it regards non-refillable cylinders filled with compressed air.
The subsidy programs under investigation and the issues raised in the case and rebuttal briefs by parties in this investigation are discussed in the Issues and Decision Memorandum. A list of the issues raised by parties, and to which we responded in the Issues and Decision Memorandum, is attached to this notice at Appendix II.
Commerce conducted this investigation in accordance with section 701 of the Act. For each of the subsidy programs found countervailable, Commerce determines that there is a subsidy,
In making this final determination, Commerce relied, in part, on facts available pursuant to section 776(a) of the Act. Additionally, as discussed in the Issues and Decision Memorandum, because one or more respondents did not act to the best of their ability in responding to our requests for information, we drew adverse inferences, where appropriate, in selecting from among the facts otherwise available, pursuant to section 776(b) of the Act. This includes seven companies that did not respond to Commerce's quantity and value questionnaire; as described in the
Commerce was unable to conduct on-site verification of the information relied upon in making its final determination in this investigation. However, we took additional steps in lieu of an on-site verification to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Act.
Based on our review and analysis of the comments received from parties, we made certain changes to Wuyi Xilinde's subsidy rate calculations, the adverse facts available rate assigned to firms that did not respond to Commerce's quantity and value questionnaire, and the all-others rate. For a discussion of these changes,
In accordance with section 705(c)(1)(B)(i)(I) of the Act, Commerce calculated a countervailable subsidy rate for the individually investigated exporters/producers of the subject merchandise. Section 705(c)(5)(A) of the Act provides that, in the final determination, Commerce shall determine an estimated all-others rate for companies not individually examined. The rate shall be an amount equal to the weighted average of the estimated subsidy rates established for those companies individually examined, excluding any rates that are zero,
In this investigation, as discussed in the Issues and Decision Memorandum, Commerce calculated individual estimated countervailable subsidy rates
Commerce determines that the following estimated countervailable subsidy rates exist:
Commerce intends to disclose to interested parties the calculations and analysis performed in this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of the publication of this notice in accordance with 19 CFR 351.224(b).
As a result of our
If the U.S. International Trade Commission (ITC) issues a final affirmative injury determination, we will issue a CVD order, reinstate the suspension of liquidation and require a cash deposit of estimated countervailing duties for such entries of subject merchandise in the amounts indicated above, in accordance with section 706(a) of the Act. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated, and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.
In accordance with section 705(d) of the Act, we will notify the ITC of our affirmative determination that countervailable subsidies are being provided to producers and exporters of non-refillable cylinders from China. Because the final determination in this proceeding is affirmative, in accordance with section 705(b) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of non-refillable cylinders from China no later than 45 days after our final determination. If the ITC determines that material injury or threat of material injury does not exist, this proceeding will be terminated, and all cash deposits will be refunded. If the ITC determines that such injury does exist, Commerce will issue a countervailing duty order directing CBP to assess, upon further instruction by Commerce, countervailing duties on all imports of the subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act and 19 CFR 351.210(c).
The merchandise covered by this investigation is certain seamed (welded or brazed), non-refillable steel cylinders meeting the requirements of, or produced to meet the requirements of, U.S. Department of Transportation (USDOT) Specification 39, TransportCanada Specification 39M, or United Nations pressure receptacle standard ISO 11118 and otherwise meeting the description provided below (non-refillable steel cylinders). The subject non-refillable steel cylinders are portable and range from 300-cubic inch (4.9 liter) water capacity to 1,526-cubic inch (25 liter) water capacity. Subject non-refillable steel cylinders may be imported with or without a valve and/or pressure release device and unfilled at the time of importation. Non-refillable steel cylinders filled with pressurized air otherwise meeting the physical description above are covered by this investigation.
Specifically excluded are seamless non-refillable steel cylinders.
The merchandise subject to this investigation is properly classified under statistical reporting numbers 7311.00.0060 and 7311.00.0090 of the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise may also enter under HTSUS statistical reporting numbers 7310.29.0025 and 7310.29.0050. Although the HTSUS statistical reporting numbers are provided for convenience and customs purposes, the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that four exporters of certain frozen warmwater shrimp (shrimp) from the People's Republic of China (China) had no shipments during the period of review (POR), February 1, 2019, through January 31, 2020. Commerce also preliminarily determines that the 125 remaining companies subject to this review are part of the China-wide entity because they failed to demonstrate their eligibility for separate rates.
Applicable March 22, 2021.
Jasun Moy, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-8194.
On April 8, 2020, Commerce published in the
We received timely certifications from the following exporters that they had not shipped subject merchandise or had not shipped subject merchandise produced by any other entity during the POR: (1) Allied Pacific;
On April 24, 2020, Commerce exercised its discretion to toll administrative review deadlines by 50 days.
The products covered by this order are shrimp from China. For a complete description of the scope,
Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213.
Based on the available record information, Commerce preliminarily determines that Allied Pacific, Shantou Red Garden Foods, Zhangzhou Hongwei, and Zhanjiang Guolian had no shipments during the POR. Consistent with our assessment practice in non-market economy administrative reviews, Commerce is not rescinding this review for Allied Pacific, Shantou Red Garden Foods, Zhangzhou Hongwei, and Zhanjiang Guolian, but intends to complete the review and issue appropriate instructions to CBP based on the final results of the review.
Because 125 companies under review did not submit an SRA or SRC, Commerce preliminarily determines that these companies have not demonstrated their eligibility for a separate rate.
Commerce's policy regarding conditional review of the China-wide entity applies to this administrative review.
In accordance with 19 CFR 351.309(c), case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the date of publication of these preliminary results, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. Issues raised in the hearing will be limited to issues raised in the respective case and rebuttal briefs. If a request for a hearing is made, Commerce intends to hold the hearing at a date and time to be determined.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
Upon issuance of the final results of this review, Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For previously-investigated or reviewed Chinese and non-Chinese exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; (2) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate (including the companies listed in
This notice also serves as a reminder to importers of their responsibility under 19 CFR 315.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these preliminary results in accordance with sections 751(a)(1) and 777(i) of the Act, and 19 CFR 351.213(h) and 351.221(b)(4).
The scope of the order includes certain frozen warmwater shrimp and prawns, whether wild caught (ocean harvested) or farm raised (produced by aquaculture), head on or head off, shell on or peeled, tail on or tail off,
The frozen warmwater shrimp and prawn products included in the scope of the order, regardless of definitions in the harmonized tariff schedule (HTS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.1020); (2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell on or peeled (HTS subheadings 0306.23.0020 and 0306.23.0040); (4) shrimp and prawns in prepared meals (HTS subheading 1605.20.0510); (5) dried shrimp and prawns; (6) Lee Kum Kee's shrimp sauce; (7) canned warmwater shrimp and prawns (HTS subheading 1605.20.1040); and (8) certain battered shrimp. Battered shrimp is a shrimp-based product: (1) That is produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) to which a “dusting” layer of rice or wheat flour of at least 95 percent purity has been applied; (3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; (4) with the non-shrimp content of the end product constituting between four and 10 percent of the product's total weight after being dusted, but prior to being frozen; and (5) that is subjected to individually quick frozen (“IQF”) freezing immediately after application of the dusting layer. When dusted in accordance with the definition of dusting above, the battered shrimp product is also coated with a wet viscous layer containing egg and/or milk, and par-fried.
The products covered by this order are currently classified under the following HTS subheadings: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. These HTS subheadings are provided for convenience and for customs purposes only; the written description of the scope of this order is dispositive.
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before May 21, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Clifford Hutt, Fishery Management Specialist, NOAA Fisheries Highly Migratory Species Management Division, 1315 East-West Highway, SSMC3, Silver Spring, MD 20910; 301-427-8542; or
This request is for an extension of a current information collection. These requirements apply to vessel owners in the Atlantic highly migratory species (HMS) Fishery.
Under current regulations at 50 CFR 635.6, fishing vessels permitted for Atlantic HMS fisheries must display their official vessel numbers on their vessels. Flotation devices and high-flyers attached to certain fishing gears must also be marked with the vessel's official number to identify the vessel to which the gear belongs. These requirements are necessary for identification, law enforcement, and monitoring purposes.
Specifically, all vessel owners that hold a valid Atlantic HMS permit under 50 CFR 635.4, other than an Atlantic HMS Angling permit, are required to display their official vessel identification number. Numbers in block Arabic numerals in a contrasting color to the background must be permanently affixed to, or painted on, the port and starboard sides of the deckhouse or hull and on an appropriate weather deck, so as to be clearly visible from an enforcement vessel or aircraft. The numbers must be at least 18 inches (45.7 cm) in height for vessels over 65 ft (19.8 m) in length; at least 10 inches (25.4 cm) in height for all other vessels over 25 ft (7.6 m) in length; and at least 3 inches (7.6 cm) in height for vessels 25 ft (7.6 m) in length or less.
Furthermore, the owner or operator of a vessel for which a permit has been issued under § 635.4 and that uses handline, buoy gear, harpoon, longline, or gillnet, must display the vessel's name, registration number or Atlantic Tunas, Atlantic HMS Angling, or Atlantic HMS Charter/Headboat permit number on each float attached to a handline, buoy gear, or harpoon, and on the terminal floats and high-flyers (if applicable) on a longline or gillnet used by the vessel. The vessel's name or number must be at least 1 inch (2.5 cm) in height in block letters or Arabic numerals in a color that contrasts with the background color of the float or high-flyer.
There is no form or information collected under this requirement. Official vessel numbers issued to vessel operators are marked on the vessel and on flotation gear, if applicable.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of availability; request for comments.
In accordance with the Oil Pollution Act of 1990 (OPA), the National Environmental Policy Act (NEPA), and a Consent Decree with BP Exploration & Production Inc. (BP),
The Regionwide TIG will consider public comments received on or before May 6, 2021.
Members of the public can access the open house and webinars at:
•
•
•
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Oceanic and Atmospheric Administration—Jamie Schubert, NOAA Restoration Center, (310) 427-8711,
On April 20, 2010, the Deepwater Horizon (DWH) mobile drilling unit exploded, causing a massive release of oil from the BP Exploration and Production Inc. (BP) Macondo well. The explosion and oil spill led to loss of life and extensive natural resource injuries. Oil spread from the deep ocean to surface and nearshore environments across the Gulf of Mexico, from Texas to Florida. Extensive response actions were undertaken to reduce harm to people and the environment. However,
The DWH Federal and State natural resource trustees (DWH Trustees) conducted the natural resource damage assessment for the DWH oil spill under OPA (33 U.S.C. 2701
The DWH Trustees are:
• U.S. Department of the Interior (DOI), as represented by the National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• U.S. Environmental Protection Agency (EPA);
• State of Louisiana Coastal Protection and Restoration Authority (CPRA), Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• State of Texas: Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.
The DWH Trustees reached and finalized a settlement of their natural resource damage claims with BP in an April 4, 2016, Consent Decree approved by the United States District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Regionwide Restoration Area are selected and implemented by the Regionwide TIG. The Regionwide TIG is composed of the Federal and State Trustees listed above.
On September 24, 2019, the Regionwide TIG posted a public notice at
The Draft RP/EA is being released in accordance with OPA NRDA regulations in the Code of Federal Regulations (CFR) at 15 CFR part 990, NEPA (42 U.S.C. 4321
• Alternative 1: Reducing Marine Debris Impacts on Birds and Sea Turtles (joint project with Sea Turtles Restoration Type)—Preferred, $3,520,000.
• Alternative 2: Conservation and Enhancement of Nesting and Foraging Habitat for Birds—Preferred, $22,500,000.
○ Component 1: Chandeleur Islands, LA, $8,000,000.
○ Component 2: Pilot Town/Little Dauphin Island, AL, $6,500,000.
○ Component 3: San Antonio Bay Bird Island, TX $2,500,00.
○ Component 4: Matagorda Bay Bird Island (Chester Island), TX, $2,500,000.
○ Component 5: Round Island, MS, $3,000,000.
• Alternative 3: Bird Nesting and Foraging Area Stewardship—Preferred, $8,510,750.
• Alternative 4: Stewardship and Habitat Creation through Beneficial Use—Non-preferred, $6,500,000.
○ Component 1: Walker Island, AL, $4,000,000.
○ Component 2: Matagorda Bay Bird Island (Chester Island), TX, $2,500,000.
• Alternative 1: Voluntary Modifications to Commercial Shrimp Lazy Lines to Reduce Dolphin Entanglements—Preferred, $3,179,088.
• Alternative 2: Reducing Impacts to Dolphins from Hook-and-Line Gear and Provisioning through Fishery Surveys, Social Science, and Collaboration—Preferred, $1,700,000.
• Alternative 3: Enhance Marine Mammal Stranding Network Diagnostic Capabilities and Consistency across the Gulf of Mexico—Preferred, $2,300,000.
• Alternative 4: Enhance Capacity, Diagnostic Capability, and Consistency of the Marine Mammal Stranding Network in the Gulf of Mexico—Non-preferred, $7,887,000.
• Alternative 1: Improving Resilience for Oysters by Linking Brood Reefs and Sink Reefs (Large-scale)—Preferred, $35,819,974 (component cost breakdown is not yet defined).
○ Component 1: East Galveston Bay, TX.
○ Component 2: Biloxi Marsh, LA.
○ Component 3: Heron Bay, MS.
○ Component 4: Mid-lower Mobile Bay, AL.
○ Component 5: Suwanee Sound, FL.
• Alternative 2: Improving Resilience for Oysters by Linking Brood Reefs and Sink Reefs (Small-scale), Non-preferred, $22,300,000 (component cost breakdown is not yet defined).
○ Component 1: East Galveston Bay, TX.
○ Component 2: Biloxi Marsh, LA.
○ Component 3: Heron Bay, MS.
○ Component 4: Mid-lower Mobile Bay, AL.
○ Component 5: Suwanee Sound, FL.
• Alternative 1: Pilot Implementation of Automatic Identification System in the GOM Inshore Shrimp Fishery to Inform Efforts to Reduce Sea Turtle Bycatch—Preferred, $2,231,124.
• Alternative 2: Restore and Enhance Sea Turtle Nest Productivity—Preferred, $7,655,000.
• Alternative 3: Guiding Restoration Success for Nesting Females and Hatchlings in the Northern Gulf of Mexico—Non-preferred, $4,446,000.
• Alternative 4: Reducing Sea Turtle Bycatch at Recreational Fishing Sites, Preferred, $3,649,360.
• Alternative 5: Reducing Marine Debris Impacts on Birds and Sea Turtles (joint project with Birds Restoration Types)—Preferred, $3,520,000.
• Alternative 6: Regionwide Enhancements to the Sea Turtle
○ Component 1: Enhancing Response, Coordination, and Preparedness in the Gulf of Mexico, $2,050,000.
○ Component 2: Texas Rehabilitation Facility, $3,000,000.
The Regionwide TIG also analyzes a No Action alternative. One or more alternatives may be selected for implementation by the Regionwide TIG in the Final RP/EA or in future restoration plans.
The Regionwide TIG has examined the injuries assessed by the DWH Trustees and evaluated restoration alternatives to address the injuries. In the Draft RP/EA, the Regionwide TIG presents to the public its draft plan for providing partial compensation to the public for injured natural resources and ecological services in the Regionwide Restoration Area. The proposed alternatives are intended to continue the process of using DWH restoration funding to restore natural resources injured or lost as a result of the Deepwater Horizon oil spill. The total estimated cost of the projects proposed as preferred is approximately $99.6 million. Additional restoration planning for the Regionwide Restoration Area will continue.
The public is encouraged to review and comment on the Draft RP/EA. Virtual public meetings are scheduled to facilitate the public review and comment process. Each virtual meeting will include an informal open house period to accommodate general questions from the public in topic areas followed by a formal presentation of the Draft RP/EA. Following the presentation, public comment will be taken through the virtual meeting platform.
Presentation slides, project fact sheets, and a recording of the webinar will be posted on the Regionwide TIG website. The public may register for the virtual public meetings at the link below.
After the public comment period ends, the Regionwide TIG will consider and address the comments received before issuing a Final RP/EA. A summary of comments received and the Regionwide TIG's responses and any revisions to the document, as appropriate, will be included in the final document.
You may request a CD of the Draft RP/EA (see
Vietnamese translation will be available upon request for the virtual public meetings. Anyone requiring assistance or access to translation should contact Jamie Schubert at
The documents comprising the Administrative Record for the Draft RP/EA can be viewed electronically at
The authority of this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before May 21, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Jean Higgins, Protected Species Conservation Branch Chief, Greater Atlantic Regional Office, 55 Greater Republic Drive, Gloucester, MA 01930, 978-281-9345,
This request is for a revision to a currently approved information collection.
On October 10, 2008, NMFS published a final rule (0648-AS36) implementing seasonal speed restrictions along the east coast of the U.S. to reduce the incidence and
This revision to the current information collection includes a voluntary survey effort of vessel operators to evaluate their ability and willingness to: (1) Comply with North Atlantic right whale mandatory speed restrictions, and (2) cooperate with voluntary speed reduction efforts to protect North Atlantic right whales, which are promoted through NMFS outreach efforts. We will collect information from two types of vessels (pleasure yachts and large ocean going vessels) in two different areas of the North Atlantic right whales' range using voluntary online surveys and small focus groups. The surveys will collect information about vessel operators' time spent on the water, experience and knowledge about large whales, knowledge of North Atlantic vessel strike reduction efforts, opinions about these whales and conservation efforts, and their preferred means of receiving information. Results from this information collection will be used to develop effective outreach to these vessel communities, with the long-term goal of improving the communities' compliance with mandatory measures and cooperation with voluntary measures that support North Atlantic right whale vessel strike reduction conservation efforts.
New survey information will be collected in two ways. Surveys will be administered electronically. Focus group information will be collected either in person or virtually during 2.5-hour face-to-face or virtual meetings.
The information collection requires an entry into the vessel's hard copy logbook.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; extension of information request period.
NMFS hereby extends the information request period on the notice of initiation of a 5-year review of the Beringia and Okhotsk distinct population segments (DPSs) of the Pacific bearded seal subspecies
Information must be received by May 25, 2021. However, we will continue to accept new information about any listed species at any time.
Submit your information, identified by docket number NOAA-NMFS-2020-0030, by either of the following methods:
•
•
Tammy Olson, NMFS Alaska Region, 907-271-2373,
On January 13, 2021, we announced the initiation of a 5-year review of the Beringia and Okhotsk DPSs of the bearded seal under the ESA (86 FR 2648). As a part of that notice, we solicited information relevant to the review and announced a 60-day information request period to end on March 26, 2021. NMFS received two requests to extend the information request period to May 25, 2021, in order to provide additional time to gather relevant information and prepare submissions in a thorough manner. We are therefore extending the close of the information request period to May 25, 2021, as requested, to provide additional time for public input.
16 U.S.C. 1531
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before May 21, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Craig Reid, Grant Coordinator, Coral Reef Conservation Program, NOAA National Ocean Service, 1305 East West Highway, 10th Floor, Silver Spring, MD 20910, 240-533-0783, and
This request is for revision and extension of a currently approved information collection.
The Coral Reef Conservation Act of 2000 (16 U.S.C. 6401
Collection activities for this program are outlined below and include: 1. Applicant creation and submission of requests for waivers of the non-Federal matching funds requirement; 2. Review of project proposals by Federal Agencies and non-Federal entities with jurisdiction or management authority over coral reef ecosystems in the area where the project is to be conducted; and 3. Revision of performance reporting methods to include a standard program-specific template and a new indicator tracking report.
As per section 6403(b) of the Act, NOAA will require that Federal funds for any coral conservation financial assistance project may not exceed 50 percent of the total cost. However, the Administrator may waive all or part of the matching requirement if the Administrator determines that no reasonable means are available through which an applicant can meet the matching requirement and the probable benefit of the project outweighs the public interest in the matching requirement. The suitability for a waiver is determined after the applicant has submitted a written request with the application package and provided the proper justification.
As per section 6403(f) of the Act, NOAA will review eligible coral reef conservation proposals using an external governmental review and merit-based peer review. As part of this review, NOAA will request and consider written comments on the proposal from each Federal agency, state government, or other government jurisdiction, including the relevant regional Fishery Management Councils established under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
As per 2 CFR part 200.329, all recipients of non-construction federal financial assistance awards are required to provide performance (technical) reports to the agency at intervals no less frequently than annually and no more frequently than quarterly in order for the agency to properly monitor the award and meet oversight responsibilities. The awarding agency must use OMB-approved common forms for this purpose or seek permission for program-specific forms that will collect the required data elements. The Coral Reef Conservation Program seeks OMB approval to revise this information collection to require use of a program-specific form for semi-annual reporting and an annual form for tracking specific indicators. These indicators align with the new Coral Reef Conservation Program Strategic Plan (2018;
Information will be collected electronically via the Department of Commerce Grants Online system. In the event that electronic submission is not available, paper submissions may be allowable pursuant to the Notice of Funding Opportunity.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; extension of information request period.
NMFS hereby extends the information request period on the notice of initiation of a 5-year review of the endangered Cook Inlet beluga whale (
Information must be received by June 25, 2021.
Submit your information, identified by docket number NOAA-NMFS-2021-0010, by either of the following methods:
•
•
Jill Seymour, NMFS Alaska Region, 907-271-5006,
On February 25, 2021, we announced the initiation of a 5-year review of the Cook Inlet beluga whale DPS under the ESA (86 FR 11504). As part of that notice, we solicited information relevant to the review and announced a 60-day information request period to end on April 26, 2021. NMFS received a request to extend the information request period to June 25, 2021, in order to provide additional time to gather relevant information and prepare submissions in a thorough manner. We are therefore extending the close of the information request period to June 25, 2021, as requested to provide additional time for public input.
16 U.S.C. 1531
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is requesting to renew the Office of Management and Budget's (OMB's) approval for an existing information collection, titled “State Official Notification Rule”
Written comments are encouraged and must be received on or before May 21, 2021 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.
Documentation prepared in support of this information collection request is available at
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by April 21, 2021.
DFARS 217.7004(a)—When solicitations permit the exchange (or trade-in) of personal property and application of the exchange allowance to the acquisition of similar property,
DFARS 217.7404-3(b)—When awarded an undefinitized contract action, contractors are required to submit a qualifying proposal in accordance with the definitization schedule provided in the contract. Contracting officers use this information to complete a meaningful analysis of a contractor's proposal in a timely manner.
DFARS 217.7505(d)—When responding to sole source solicitations that include the acquisition of replenishment parts, offerors submit price and quantity data on any Government orders for the replenishment part(s) issued within the most recent 12 months. Contracting officers use this information to evaluate recent price increases for sole source replenishment parts.
DFARS clause 252.217-7012—Included in master agreements for repair and alteration of vessels, paragraph (d) of the clause requires contractors to show evidence of insurance under the agreement. Contracting officers use this information to ensure contractor is adequately insured when performing work under the agreement. Paragraphs (f) and (g) of the clause require contractors to notify the contracting officer of any property loss or damage for which the Government is liable under the agreement and submit a request, with supporting documentation, for reimbursement of the cost of replacement or repair. Contracting officers use this information to stay informed of lost or damaged property for which the Government is liable, and to determine the appropriate course of action for replacement or repair of the property.
DFARS provision 252.217-7026—Included in certain solicitations for supplies that are being acquired under other than full and open competition, the provision requires the apparently successful offeror to identify their sources of supply so that competition can be enhanced in future acquisitions.
DFARS clause 252.217-7028—When performing under contracts for overhaul, maintenance, and repair, contractors must submit a work request and proposal for “over and above” work that is within the scope of the contract, but not covered by the line item(s) under the contract, and necessary in order to satisfactorily complete the contract. This requirement allows the Government to review the need for pending work before the contractor begins performance.
Comments and recommendations on the proposed information collection should be sent to Ms. Susan Minson, DoD Desk Officer, at
You may also submit comments, identified by docket number and title, by the following method:
Office of Special Education and Rehabilitative Services (OSERS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change to a currently approved collection.
Interested persons are invited to submit comments on or before April 21, 2021.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Caneshia Mcalister, 202-245-6059.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education, Department of Education.
Notice of interpretation.
The Department of Education (Department) is issuing this notice of interpretation regarding the allowable time period for which grantees may charge costs and lost revenue to their HEERF grant. That period is from March 13, 2020 onward.
This interpretation is effective March 22, 2021.
Karen Epps, U.S. Department of Education, 400 Maryland Avenue SW, Room 250-64, Washington, DC 20202. Telephone: The Department of Education HEERF Call Center at (202) 377-3711. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
On March 13, 2020, President Trump declared a national emergency to respond to the novel coronavirus (COVID-19) outbreak, under section 501(b) of the Stafford Act. Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19), 85 FR 15337. Soon thereafter, on March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law 116-136, to help Americans during the economic and health crises created by the COVID-19 outbreak. Among its many provisions, the CARES Act provided the Department with a $14.2 billion appropriation designated as the Higher Education Emergency Relief Fund (HEERF) to be distributed to eligible institutions of higher education (IHEs) to “prevent, prepare for, and respond to coronavirus.”
In the midst of this continued crisis, on December 27, 2020, President Trump signed into law the Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (CRRSAA) (Pub. L. 116-260). This law made available an additional $22.7 billion for IHEs under the HEERF programs, with funding appropriated for the existing (a)(1), (a)(2), and (a)(3) programs previously authorized under the CARES Act, as well as funding for a new (a)(4) program authorized under the CRRSAA.
Section 314(c) of the CRRSAA provides the following allowable uses for funds made available through that appropriation:
(1) Defray expenses associated with coronavirus (including lost revenue, reimbursement for expenses already incurred, technology costs associated with a transition to distance education, faculty and staff trainings, and payroll);
(2) Carry out student support activities authorized by the Higher Education Act of 1965, as amended, that address needs related to coronavirus; or
(3) Provide financial aid grants to students.
Additionally, section 314(d)(2) of the CRRSAA extended the allowable use provisions listed above to any of an IHE's unspent CARES Act funds.
In its initial analysis regarding the allowability of pre-award costs for grants made newly available under the CRRSAA, the Department took the position that obligations under CRRSAA grants needed to have been incurred on or after December 27, 2020, the date of the enactment of the CRRSAA. For new or supplemental funding awarded under CRRSAA, this position was memorialized in the IHE's Certification and Agreement or Supplemental Agreement, respectively, as well as the Grant Award Notification document connected with the obligation of such funds.
The Department is committed to extending all available flexibilities that may be authorized by law to grantees under the HEERF programs as IHEs continue to grapple with the financial consequences of COVID-19. Many IHEs are facing severe budget shortfalls as a result of decreased enrollment, tuition discounting, declining international student enrollment, and the loss of revenue from food service and dormitories.
In recognition of the considerable financial strain faced by the higher education community, the Department is issuing this notice of interpretation to allow IHEs to charge pre-award costs for their unspent CARES Act and CRRSAA funds back to March 13, 2020, for expenses associated with COVID-19. The Department finds textual support for revisiting its position within the allowable uses enumerated within CRRSAA section 314(c)(1), which explicitly include “lost revenue” and “reimbursement for expenses already incurred.” The Department believes that allowing grantees to recover pre-award costs back to March 13, 2020, is consistent with the intent of Congress and authorized by the law, and this will allow IHEs to target their areas of financial need more directly with HEERF program funding.
This notice of interpretation supersedes in part all previous guidance, agreements, and grant award documents to provide IHEs with the expanded flexibility to charge pre-award costs back to March 13, 2020. To further provide flexibility to IHEs, the Department also concurrently waives the requirement for prior written approval of pre-award costs, in accordance with 2 CFR 200.407. We will also issue letters through our G5 system to directly notify grantees of this change of interpretation. Grantees are not required to take any action to take advantage of this expanded period of expenditures flexibility but are encouraged to maintain a copy of this notice within your HEERF grant files as additional support for auditing purposes. The Department will make publicly available any additional guidance on this topic on its CRRSAA: Higher Education Emergency Relief Fund (HEERF II) website(
The Department continues to encourage IHEs to focus on the needs of their students in assessing how best to utilize HEERF funding. While some IHEs may need to use their HEERF grant to pay for expenses incurred earlier in the pandemic, other IHEs may look forward and focus on how best to provide student support to keep their students enrolled and academically engaged throughout the pandemic. The Department hopes that the expanded flexibilities announced in this notice
You may also access documents of the Department published in the
Institute of Education Sciences (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of a currently approved information collection.
Interested persons are invited to submit comments on or before
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Carrie Clarady, (202) 245-6347.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The request to conduct NAEP 2021, including operational assessments and pilot tests: operational national/state/TUDA Digitally Based Assessments (DBA) in mathematics and reading at grades 4 and 8, and Puerto Rico in mathematics at grades 4 and 8; and operational national DBA in U.S. history and civics at grade 8 was approved in April 2020, with further updates to the materials approved in July and November 2020. Throughout 2020 NCES worked with its contractors and with OMB to find the best way to plan for a data collection in schools in 2021, and as the coronavirus pandemic progressed over the course of the year, plans for NAEP 2020 data collection changed multiple times. In November 2020, the NCES Commissioner announced the delay of NAEP 2021 by one year to early 2022.
Since then, NAEP has continued to work to salvage any pieces of their data collection plans for 2021 and begin planning for NAEP 2022. NCES has used the drawn and notified sample from 2021 for two data collections that don't include the student assessment that is central to the NAEP program, instead using that sample to collect information about basic school operations during the coronavirus
This request is to conduct NAEP operational assessments in 2022, which will follow the traditional NAEP design which assesses each student in 60-minutes for one cognitive subject. The 2022 data collection will consist of operational national/state/TUDA DBA in mathematics and reading at grades 4 and 8, and Puerto Rico in mathematics at grades 4 and 8; and operational national DBA in U.S. history and civics at grade 8. In addition to the regular NAEP operational assessments delayed from 2021, this submission also contains materials for the LTT. LTT was last administered in 2020 for ages 9 and 13 but due to the COVID-19 pandemic and school closures, the age 17 administration has been delayed until early 2022.
Two additional 30-day packages will be submitted in May and July 2021 in order to update all materials in time for the data collection in early 2022.
Office of Electricity, Department of Energy.
Notice of application.
Arizona Public Service Company (APS or Applicant) filed a letter informing the Department of Energy (DOE or Department) of a change in the entity identified as the specific transmitter of emergency power imports in Presidential Permit No. PP-108. As a result of the change in counterparty, PP-108 must be amended to reflect that change.
Comments, protests, or motions to intervene must be submitted on or before April 21, 2021.
Comments or motions to intervene should be addressed to Christopher Lawrence,
Christopher Lawrence (Program Office) at 202-586-5260 or by email to
The construction, operation, maintenance, and connection of facilities at the international border of the United States for the transmission of electric energy between the United States and a foreign country is prohibited in the absence of a Presidential permit issued pursuant to Executive Order (E.O.) 10485, as amended by E.O. 12038.
On December 5, 1995, DOE issued Presidential Permit No. PP-108, authorizing APS to construct, operate, maintain, and connect the San Luis-Canal Line, a 34.5 kilovolt (kV) transmission line from the San Luis Substation in Yuma County, Arizona, extending approximately 2.8 miles to the U.S.-Mexico border adjacent to San Luis, Sonora, Mexico. The purpose of the facilities is the transmission of emergency power by APS to the Comisión Federal de Electricidad (CFE, the national utility in Mexico) and by CFE to APS. On the same day it issued Presidential Permit No. PP-108, DOE issued an order authorizing APS to export electric energy to CFE.
On July 16, 2019, APS filed a letter with the Office of Electricity of DOE informing the Department of a change in the counterparty listed in Presidential Permit No. PP-108. The letter indicates that CFE is no longer the entity responsible for requesting emergency assistance, as contemplated by the December 29, 2008 Enabling Contract governing transactions over the line. The responsible entity is now the Centro Nacional de Control de Energía (CENACE). APS represents that CENACE “now operates [Mexico's] wholesale electricity market, has operational control of [Mexico's] national electric system, and establishes energy imports and exports for reliability and emergency situations,” adding that CFE must “assign the Enabling Contract to CENACE.” APS requested “confirmation from DOE that [the permit] will remain applicable to the Enabling Contract once it has been assigned to CENACE.”
Article 3 of Presidential Permit No. PP-108 states that “the [permitted] facilities . . . may be used to import up to 20 megawatts of electric power and associated energy from [CFE] but only to the extent that such import serves load radially connected to the APS system and does not result in a synchronous connection between CFE and APS.” Article 4 provides that “[n]o change shall be made in the facilities covered by this permit or in [their] authorized operation . . . unless such change has been approved by the DOE.” APS sought confirmation of the permit's continued applicability following the Enabling Contract's assignment, not modification of the permit itself. However, because Presidential Permit No. PP-108 specifies CFE as the counterparty to APS, it is necessary for DOE to amend the permit to reflect the assignment.
Article 3 of Presidential Permit No. PP-108 also provides that “[t]he facilities . . . shall be designed and operated in accordance with the applicable criteria established by the Western Systems Coordinating Counsel [sic] and consistent with that of the North American Electric Reliability Council.” Issuance of the permit preceded the enactment of the Energy Policy Act of 2005, which added section 215 to the Federal Power Act and allowed the Federal Energy Regulatory Commission to certify an Electric Reliability Organization to develop enforceable reliability standards for the Nation's bulk-power system. The certified organization, the North American Electric Reliability Corporation (NERC), oversees several Regional Entities, one of which is the Western Electricity Coordinating Council (WECC). Therefore, concurrent with its intent to modify Article 3 of Presidential Permit No. PP-108 to reflect the substitution of CENACE for CFE, the Department intends to revise Article 3 to substitute the full names of NERC and WECC, as applicable.
Comments and other filings concerning this application should be clearly marked with OE Docket No. PP-108-1. Additional copies are to be provided directly to Mr. Phillip
Before a Presidential permit may be issued or amended, DOE must determine that the proposed action is in the public interest. In making that determination, DOE will consider the environmental impacts of the proposed action (
This application may be reviewed or downloaded electronically at
Office of Electricity, Department of Energy.
Notice of application.
Arizona Public Service Company (APS or Applicant) filed a letter informing the Department of Energy (DOE or Department) of a change in the entity identified as the specific recipient of emergency power exports in Export Authorization Order No. EA-108. As a result of the change in counterparty, EA-108 must be amended to reflect that change.
Comments, protests, or motions to intervene must be submitted on or before April 21, 2021.
Comments or motions to intervene should be addressed to Christopher Lawrence,
Christopher Lawrence (Program Office) at 202-586-5260 or by email to
The Department of Energy (DOE) also regulates exports of electricity from the United States to a foreign country, pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b) and 42 U.S.C. 7172(f)). Such exports require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On December 5, 1995, DOE issued EA-108 to APS, authorizing emergency exports of electric energy to the Comisión Federal de Electricidad (CFE, the national utility in Mexico). Ordering Paragraph (A) of EA-108 states that APS may “export electric energy to [CFE] only in response to requests for emergency assistance by CFE,” and that “[t]he electricity exports authorized herein shall be delivered to CFE only over the facilities authorized by Presidential Permit PP-108 issued to APS by DOE” that same day.
On July 16, 2019, APS filed a letter with the Office of Electricity of DOE informing the Department of a change in the counterparty listed in EA-108. The letter indicates that CFE is no longer the entity responsible for requesting emergency assistance, as contemplated by the December 29, 2008 Enabling Contract governing transactions over the line. The responsible entity is now the Centro Nacional de Control de Energía (CENACE). APS represents that CENACE “now operates [Mexico's] wholesale electricity market, has operational control of [Mexico's] national electric system, and establishes energy imports and exports for reliability and emergency situations,” adding that CFE must “assign the Enabling Contract to CENACE.” APS requested “confirmation from DOE that [EA-108] will remain applicable to the Enabling Contract once it has been assigned to CENACE.”
In addition to the references to CFE in Ordering Paragraph (A) of EA-108, Ordering Paragraph (F) states that “[e]xports to CFE authorized herein shall be reduced or suspended, as appropriate, whenever a continuation of those exports would impair or tend to impair the reliability of the U.S. electric power supply systems.”
APS sought confirmation of EA-108's continued applicability following the Enabling Contract's assignment, not modification of EA-108 itself. However, because EA-108 specifies CFE as the counterparty to APS, with several specific references, it is necessary for DOE to amend the permit to reflect the assignment by substituting CENACE in references to CFE.
Comments and other filings concerning this application should be clearly marked with OE Docket No. EA-108-A. Additional copies are to be provided directly to Mr. Phillip McLaughlin, GM, Resource Management, P.O. Box 53999, Mail Station 9842, Phoenix, Arizona 85072-3999,
A final decision will be made on the requested authorization after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE evaluates whether the proposed action will have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
This application may be reviewed or downloaded electronically at
As first announced in the Notice of Technical Conference issued in this proceeding on February 18, 2021, the Federal Energy Regulatory Commission (Commission) will convene a Commissioner-led technical conference in the above-referenced proceeding on Tuesday, March 23, 2021, from approximately 9:00 a.m. to 5:00 p.m. Eastern time. The conference will be held remotely. Attached to this Supplemental Notice is an agenda for the technical conference, which includes the final conference program. Commissioners may attend and participate in the staff-led portions of the technical conference.
Discussions at the conference may involve issues raised in proceedings that are currently pending before the Commission. These proceedings include, but are not limited to:
The conference will be open for the public to attend remotely. There is no fee for attendance. Information on this technical conference, including a link to the webcast, will be posted on the conference's event page on the Commission's website
The conference will be transcribed. Transcripts will be available for a fee from Ace Reporting (202-347-3700).
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this technical conference, please contact David Rosner at
This is a supplemental notice in the above-referenced proceeding of PGR 2020 Lessee 8, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 5, 2021.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the
In addition to publishing the full text of this document in the
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, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted and is ready for environmental analysis at this time.
l. The existing Camp Far West Hydroelectric Project operates to provide water during the irrigation season, generate power, and meet streamflow requirements for the Bear River. The project includes: (1) A 185-foot-high, 40-foot-wide, 2,070-foot-long, earth-filled main dam; (2) a 45-foot-high, 20-foot-wide, 1,060-foot-long, earth-filled south wing dam; (3) a 25-foot-high, 20-foot-wide, 1,460-foot-long, earth-filled north wing dam; (4) a 15-foot-high, 20-foot-wide, 1,450-foot-long, earth-filled north dike; (5) a 2,020-acre reservoir with a gross storage capacity of about 104,000 acre-feet at the normal maximum water surface elevation (NMWSE) of 300 feet; (6) an overflow spillway with a maximum design capacity of 106,500 cubic feet per second (cfs) at a reservoir elevation of 320 feet with a 15-foot-wide concrete approach apron, 300-foot-long ungated, ogee-type concrete structure, and a 77-foot-long downstream concrete chute with concrete sidewalls and a 302.5-foot single span steel-truss bridge across the spillway crest; (7) a 1,200-foot-long, unlined, rock channel that carries spill downstream to the Bear River; (8) a 22-foot-high, concrete, power intake tower with openings on three sides protected by steel trashracks; (9) a 25-foot-4-inch-high, concrete, intake tower with openings on three sides, each of which is protected by steel trashracks that receives water for the outlet works; (10) a 760-foot-long, 8-foot-diameter concrete tunnel through the left abutment of the main dam that conveys water from the power intake to the powerhouse; (11) a steel-reinforced, concrete powerhouse with a 6.8-megawatt, vertical-shaft, Francis-type turbine, which discharges to the Bear River at the base of the main dam; (12) a 350-foot-long, 48-inch-diameter steel pipe that conveys water from the intake structure to a valve chamber for the outlet works; (13) a 400-foot-long, 7.5-foot-diameter concrete-lined horseshoe tunnel that connects to the valve chamber to a 48-inch-diameter, Howell Bunger outlet valve with a capacity of 500 cfs that discharges directly into the Bear River; (14) a fenced switchyard adjacent to the powerhouse; (15) two recreation areas with campgrounds, day-use areas, boat ramps, restrooms, and sewage holding ponds; and (16) a recreational water system that includes two pumps in the reservoir that deliver water to a treatment facility that is piped to a 60,000-gallon storage tank to supply water to recreation facilities. The project has no transmission facilities. The estimated average annual generation (2010 to 2017) is 22,637 megawatt-hours.
South Sutter Water District proposes to: (1) Raise the NMWSE of the project reservoir by 5 feet from an elevation of 300 feet to an elevation of 305 feet; (2) raise the crest of the existing spillway from an elevation of 300 feet to an
m. In addition to publishing the full text of this document in the
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
n. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
o.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following PURPA 210(m)(3) 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:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document, that will discuss the environmental impacts of the Amendment to the Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline Project (Amendment Project) involving construction and operation of facilities by Mountain Valley Pipeline, LLC (Mountain Valley) in Wetzel, Lewis, Webster, Nicholas, Greenbrier, Summers, and Monroe Counties, West Virginia and Giles, Montgomery, Roanoke, Franklin, and Pittsylvania Counties, Virginia. The Commission will use this environmental document in its decision-making process.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the amendment. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance or amendment of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the environmental document on the important environmental issues. Additional information about the Commission's NEPA process is described below in the
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 pm Eastern Time on April 15, 2021. Comments may be submitted in written form. Further details on how to submit comments are provided in the
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
If you submitted comments on this project to the Commission before the opening of this docket on February 19, 2021, you will need to file those comments in Docket No. CP21-057-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the
Mountain Valley provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP21-057-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Additionally, the Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
On October 13, 2017, the FERC issued a Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline Project under docket CP16-010-000. The Mountain Valley Pipeline Project consists of approximately 303.5 miles of new natural gas pipeline and multiple aboveground facilities located in West Virginia and Virginia.
The Certificate of Public Convenience and Necessity for the Mountain Valley Pipeline Project authorized open-cut crossings for wetlands and waterbodies within the construction right-of-way. With the Amendment Project, Mountain Valley proposes to change the crossing method for specific wetlands and waterbodies to one of several trenchless crossing methods. In addition, Mountain Valley proposes two minor route adjustments to avoid crossing wetlands and waterbodies.
Specifically, the Amendment Project would consist of the following:
• 120 trenchless crossings of 182 waterbodies and wetlands (this includes 117 conventional bore crossings, 2 Direct Pipe crossings, and 1 guided conventional bore crossing);
• a minor route adjustment near milepost 230.8 to avoid the need to cross a waterbody; and
• a minor workspace adjustment near milepost 0.70 to avoid the need to cross a wetland.
Construction of the trenchless pipeline crossings would not result in a change of land requirements compared to the previously Certificated Mountain Valley Pipeline Project. The minor route adjustment near milepost 230.8 would require approximately 0.13 acre for construction and 0.04 acre for operation outside of the previously reviewed workspace for the Certificated Mountain Valley Pipeline Project. The workspace shift near milepost 0.70 would not result in additional impacts outside of the already certificated construction and permanent work areas for the Mountain Valley Pipeline Project.
Any environmental document issued by the Commission will discuss impacts that could occur as a result of the construction and operation of the proposed project under the relevant general resource areas:
• Geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• air quality and noise; and
• reliability and safety.
Commission staff have already identified several issues that deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by Mountain Valley. This preliminary list of issues may change based on your comments and our analysis:
• Protection of water resources and wetlands during the trenchless crossings;
• noise impacts and air emissions from construction; and
• potential impacts on groundwater from temporary dewatering activities.
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Following this scoping period, Commission staff will determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; and other interested parties. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
(1) Send an email to
(2) Return the attached “Mailing List Update Form” (appendix 1).
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
This is a supplemental notice in the above-referenced proceeding of Sugar Solar, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure
(18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 5, 2021.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that the Federal Energy Regulatory Commission (Commission) will convene a Commissioner-led technical conference in the above-referenced proceeding on Wednesday, June 23, 2021, and Thursday, June 24, 2021, from approximately 12 p.m. to 5 p.m. Eastern time on each day. The conference will be held electronically over WebEx and broadcast on the Commission's website.
The purpose of this conference is to discuss resource adequacy developments in the Western Interconnection. The Commission seeks to engage varied regional perspectives to discuss challenges, trends, and possible ways to continue to ensure resource adequacy in the Western Interconnection.
The conference will be open for the public to attend, and there is no fee for attendance. Supplemental notices will be issued prior to the conference with further details regarding the agenda and times, participant registration, and the format of the conference. Information on this technical conference will also be posted on the Calendar of Events on the Commission's website,
The conference will be transcribed. Transcripts will be available for a fee from Ace Reporting, (202) 347-3700.
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this technical conference, please contact Navin Shekar at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the East Lateral XPress Project, proposed by Columbia Gulf Transmission, LLC (Columbia Gulf) in the above-referenced docket. Columbia Gulf requests authorization to construct and operate two new compressor stations, a new meter station, and other appurtenant facilities, to provide 725 million standard cubic feet per day of firm transportation capacity to supply feed gas for Venture Global Plaquemines LNG, LLC's liquefied natural gas facility in Plaquemines Parish.
The EA assesses the potential environmental effects of the construction and operation of the East Lateral XPress Project in accordance with the requirements of the National Environmental Policy Act. The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The proposed East Lateral XPress Project includes the following facilities:
• 8.1 miles of 30-inch-diameter pipeline lateral within Barataria Bay in Jefferson and Plaquemines Parish, Louisiana;
• 23,470-horsepower (hp) compressor station at an abandoned Columbia Gulf compressor station site in St. Mary Parish, Louisiana (Centerville Compressor Station);
• 23,470-hp compressor station adjacent to an existing tie-in facility in Lafourche Parish, Louisiana (Golden Meadow Compressor Station);
• point of delivery meter station in Plaquemines Parish, Louisiana; and
• tie-in facility with two mainline valves and other appurtenances on a new platform in Barataria Bay, Jefferson Parish, Louisiana.
The Commission mailed a copy of the
The EA is not a decision document. It presents Commission staff's independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding. Any person wishing to comment on the EA may do so. Your comments should focus on the EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that we receive your comments in Washington, DC on or before 5:00 p.m. Eastern Time on April 15, 2021.
For your convenience, there are three methods you can use to file your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to
(1) You can file your comments electronically using the eComment feature on the Commission's website (
(2) You can also file your comments electronically using the eFiling feature on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP20-527-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission's decision. At this point in this proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission's Rules of Practice and Procedures (18 CFR 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Thursday, March 25, 2021 at 10:00 a.m.
Virtual Meeting.
This meeting will be open to the public. To access the virtual meeting, go to the Commission's website
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Government in the Sunshine Act, 5 U.S.C. 552b.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
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 April 21, 2021.
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1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than April 21, 2021.
1.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of five AHRQ subcommittee meetings.
The subcommittees listed below are part of AHRQ's Health Services Research Initial Review Group Committee. Grant applications are to be reviewed and discussed at these meetings. Each subcommittee meeting will be closed to the public.
See below for dates of meetings:
Agency for Healthcare Research and Quality (Virtual Review) 5600 Fishers Lane, Rockville, Maryland 20857.
(to obtain a roster of members, agenda or minutes of the non-confidential portions of the meetings.) Jenny Griffith, Committee Management Officer, Office of Extramural Research Education and Priority Populations, Agency for Healthcare Research and Quality (AHRQ), 5600 Fishers Lane, Rockville, Maryland 20857, Telephone (301) 427-1557.
In accordance with section 10 (a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), AHRQ announces meetings of the above-listed scientific peer review groups, which are subcommittees of AHRQ's Health Services Research Initial Review Group Committee. The subcommittee meetings will be closed to the public in accordance with the provisions set forth in 5 U.S.C. App. 2 section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6). The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Agenda items for these meetings are subject to change as priorities dictate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting.
The Centers for Disease Control and Prevention within the Department of Health and Human Services announces the next meeting of the Community Preventive Services Task Force (CPSTF) on June 9-10, 2021.
The meeting will be held on Wednesday, June 9, 2021, from 8:30 a.m. to 6:00 p.m. EDT, and Thursday, June 10, 2021, from 8:30 a.m. to 5:00 p.m. EDT.
The meeting will be held via web conference.
Arielle Gatlin, Office of the Associate Director for Policy and Strategy; Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-V-25-5, Atlanta, GA 30329, phone: (404)498-4512, email:
CDC will send web conference information to registrants upon receipt of their registration. All meeting attendees must register by June 2, 2021 to receive the web conference information for the June meeting. CDC will email web conference information from the
To register for the meeting, individuals should send an email to
The meeting agenda is subject to change without notice.
Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comment.
The Administration for Children and Families (ACF), within the U.S. Department of Health and Human Services (HHS), oversees the Home Visiting Evidence of Effectiveness (HomVEE) review, which is proposing to revise the procedures and standards that guide its work with single-case design (SCD) research. The current
Send comments on or before April 19, 2021.
Submit questions, comments, and supplementary documents to
To help policymakers, program administrators, model developers, researchers, and the public identify rigorous research and understand which early childhood home visiting models are effective, ACF's Office of Planning, Research, and Evaluation (OPRE) within HHS oversees the HomVEE review, in partnership with the Health Resources and Services Administration (HRSA). HomVEE's mission is to conduct a thorough and transparent review of early childhood home visiting models that serve pregnant women and children from birth to kindergarten entry. The review identifies well-designed, well-executed research, then extracts and summarizes the findings from that research.
One critical use of HomVEE's results is to determine which home visiting models meet the HHS criteria for an “evidence-based early childhood home visiting service delivery model” (see Section 1.1 below), a key requirement of eligibility for implementation of the model with Maternal, Infant, and Early Childhood Home Visiting (MIECHV) Program funding.
The MIECHV Program is administered by HRSA in partnership with ACF. Created in 2010, the MIECHV Program provides funding to states, territories, and tribal entities to implement home visiting models. MIECHV awardees have the flexibility to tailor the program to serve the specific needs of their communities. Through a needs assessment, awardees identify at-risk communities and select home visiting service delivery models that best meet state and/or local needs. In accordance with MIECHV's authorizing statute, state and territory awardees must spend the majority of their MIECHV Program
In December 2020, HomVEE released an updated Version 2 Handbook of Procedures and Evidence Standards (Sama-Miller et al. 2020). The updates incorporated input from methodological experts, other federal evidence reviews, and public comments on two FRNs released on August 5, 2020 (85 FR 47376 and 85 FR 47384). The HomVEE Version 2 Handbook adopted the What Works Clearinghouse (WWC) Version 4.1 Procedures and Standards Handbooks (2020a and 2020b), including revised SCD procedures and standards.
This FRN proposes further changes to the HomVEE Version 2 Handbook to clarify how HomVEE would apply the WWC 4.1 procedures and standards that HomVEE already adopted. The proposed changes focus exclusively on SCD research, including:
(1) Requirements for considering SCD research toward the HHS criteria for evidence-based models (discussed in Section 2 of the FRN).
(2) Flexibilities for applying certain SCD standards (discussed in Section 3 of the FRN).
A work group consisting of federal staff and HomVEE contractor staff, including methodological and home visiting experts, met to discuss and develop the proposed changes outlined in this FRN. Through this FRN, ACF seeks to gather stakeholder input on draft changes and to provide a transparent account of how the review operates. The remainder of Section 1 summarizes recent and current HomVEE procedures and standards with respect to SCD research.
After a period of public comment (and consultation with selected experts outside HomVEE), HomVEE will release an updated Handbook (Version 2.1). Section 5 of this FRN specifies where in the updated Version 2.1 Handbook HomVEE would insert the proposed changes.
As described in Section 2 of this FRN, HomVEE is proposing changes to requirements for how SCD research would be considered toward the HHS criteria. However, HomVEE is not proposing changes to the HHS criteria themselves. To meet HHS criteria for an “evidence-based early childhood home visiting service delivery model,” models must meet at least one of the following criteria:
(1) At least one high- or moderate-quality impact study of the model finds favorable, statistically significant impacts in two or more of the eight outcome domains.
(2) At least two high- or moderate-quality impact studies of the model using non-overlapping analytic study samples find one or more favorable, statistically significant impacts in the same domain.
In both cases, the impacts must either (1) be found in the full sample for the study, or (2) if found for subgroups but not for the full sample, be replicated in the same domain in two or more studies using non-overlapping analytic study samples.
Additionally, following the MIECHV authorizing statute, if the model meets the above criteria based on findings from randomized controlled trials only, then two additional requirements apply. First, one or more favorable (statistically significant) impacts must be sustained for at least one year after program enrollment. Second, one or more favorable (statistically significant) impacts must be reported in a peer-reviewed journal.
Since HomVEE's inception, research about SCD studies has had to satisfy certain requirements before manuscripts about those studies could be considered toward the HHS criteria. These requirements, known as the “5-3-20 rule,” are as follows:
(1) At least five studies examining the intervention either met the WWC's SCD standards without reservations or met those standards with reservations (corresponding to a “high” or “moderate” rating in HomVEE, respectively).
(2) The SCDs were conducted by at least three research teams, with no overlapping authorship at three institutions.
(3) The combined number of cases was at least 20.
Beyond the 5-3-20 rule, the question of statistical significance is relevant to findings from SCD research because the HHS criteria focus on favorable, statistically significant findings. Authors of SCD manuscripts rarely describe their findings in terms of statistical significance, which HomVEE needs to apply the HHS criteria. However, the WWC Version 4.1 Procedures Handbook, adopted in the HomVEE Version 2 Handbook, introduces the design-comparable effect size (D-CES), from which statistical significance can be determined.
The HomVEE Version 2 Handbook adopted the WWC Single-Case Design Procedures and Standards (Version 4.1). Therefore, the latest round of updates to each of the WWC and HomVEE procedures and standards included three key complementary changes. The changes, described in more detail in Subsections 2.1 through 2.3, are as follows:
(1) The WWC no longer uses the “5-3-20” rule, which established thresholds for when SCD research could contribute to evidence ratings. Consequently, HomVEE's previous requirements for SCD research about an early childhood home visiting model to be considered toward the HHS criteria (see Section 1.1) no longer align with current best practices for systematic reviews.
(2) Under HomVEE's new procedures as defined in the Version 2 Handbook and adopted from the WWC, it is now possible to calculate effect sizes and determine statistical significance for SCD research using the D-CES. Consequently, HomVEE proposes to align the application of the HHS criteria for SCD research to the procedures already in effect for other eligible research designs.
(3) Reviewers will query authors for numerical data for calculating the D-CES, a step that had not been relevant under prior versions of procedures for HomVEE (or the WWC). Because calculation of the D-CES requires numerical data from each time point, HomVEE proposes to query authors, as needed, for the information required to calculate the D-CES.
Additional requirements for considering results from SCD research toward the HHS criteria (the 5-3-20 rule) have been in effect since HomVEE's inception; those requirements were consistent with the WWC's then-current approach to SCD research. The 5-3-20 rule provided a threshold for determining when SCD research could contribute toward a decision about whether a model was evidence-based. Specifically, for SCD research to be considered toward the HHS criteria, the model's SCD research has been required to consist of at least five studies with high or moderate internal validity, to be conducted by three independent research teams, and
The WWC Version 4.1 Procedures Handbook removed the 5-3-20 rule. Correspondingly, HomVEE now proposes to remove the 5-3-20 requirement for SCD research to be considered toward the HHS criteria.
The HHS criteria for evidence-based models require evidence of favorable, statistically significant findings. However, HomVEE's procedures did not previously specify how HomVEE would apply the HHS criteria to SCD research, for which researchers generally express findings in terms of visual patterns rather than statistical significance.
Advances in meta-analysis have made it possible to calculate an effect size (the D-CES) and determine associated statistical significance for findings from most SCD research. Therefore, under its Version 4.1 procedures and standards, the WWC calculates an effect size from SCD studies, if feasible and appropriate, which is then treated as any other effect size when determining intervention ratings. Consistent with the WWC, the HomVEE Version 2 Handbook includes an explanation of how the review will calculate the D-CES for SCD findings.
The D-CES is comparable to a standardized mean-difference effect size and can be interpreted similarly to effect sizes from group design impact studies, such as randomized controlled trials, regression discontinuity designs, and non-experimental group designs. Because HomVEE can calculate the D-CES and then use the D-CES to determine the statistical significance of a finding for most SCDs, it is now possible to align the application of the HHS criteria for SCD research to group design impact studies. HomVEE proposes to align the application of HHS criteria accordingly.
A D-CES can be computed for SCDs using the following designs:
(1) Multiple baseline designs focused on the same outcome across three or more cases.
(2) Multiple probe designs focused on the same outcome across three or more cases.
(3) Reversal/withdrawal designs focused on the same outcome across three or more cases.
A D-CES cannot be computed for SCDs using the following designs:
(1) Multiple baseline designs focused on the same case across three or more settings.
(2) Multiple probe designs focused on the same case across three or more settings.
(3) Several reversal/withdrawal designs focused on the same case.
HomVEE proposes to review all eligible SCD manuscripts. HomVEE also proposes to determine statistical significance based on the D-CES for all manuscripts for which a D-CES can be calculated. For SCD manuscripts for which a D-CES cannot be calculated, for either design or data reasons, HomVEE proposes to report on the rating of the manuscript and the findings reported in it. However, research for which a D-CES cannot be calculated will not be included in the summary of evidence that contributes to the assessment of whether a model meets HHS criteria. Without a D-CES, HomVEE cannot determine statistical significance of the manuscript's findings.
SCD manuscripts frequently include graphical representation of data at each time point. To calculate the D-CES requires numerical data from each time point. HomVEE proposes to request numerical data via an author query, as needed. If the author does not provide the numerical data, then HomVEE proposes to use a software package, such as WebPlotDigitizer (Rohatgi 2020), to extract numerical data from graphical presentations. This approach is consistent with WWC procedures.
To account for the elimination of the 5-3-20 rule and to promote consistency in how well-designed, well-executed impact studies are considered toward the HHS criteria, HomVEE proposes the following updates:
(1) Eliminate the 5-3-20 additional requirement that SCD research must meet to be considered toward the HHS criteria and instead consider SCD research toward the HHS criteria in a manner consistent with other designs.
(2) To support the use of SCD findings toward the HHS criteria, implement three procedural steps that align with the Version 4.1 practices of the WWC, as follows:
a. Request numerical data from authors, if necessary.
b. Calculate the D-CES, if possible, for those designs that are rated moderate or high.
c. Calculate statistical significance for the D-CES.
These proposed changes ensure that any impact study with high or moderate quality, as determined by the application of HomVEE Version 2 standards, can contribute to the determination of whether a model meets the HHS criteria for an “evidence-based early childhood home visiting service deliver model.”
HomVEE proposes to clarify the flexibilities related to the application of certain SCD standards consistent with current WWC practice. Such flexibilities are intended to ensure that HomVEE standards are not unnecessarily stringent as more SCD manuscripts are reviewed. HomVEE proposes to update the HomVEE Version 2 Handbook text to clarify how existing flexibilities may be applied in the HomVEE review process.
The first flexibility concerns the collection of probe data points in a multiple probe SCD. The current standard is strict requiring that baseline probes for cases without the intervention be collected in the same session when another case starts the intervention. The purpose of the baseline probe collection is to assess whether cases not receiving the intervention have changes in outcomes prior to receiving the intervention.
HomVEE, and the WWC, recognize the requirement that baseline probes for cases with and without the intervention take place in the exact same session may be overly restrictive. The goal of the requirement related to the timing of baseline data collection for cases not yet receiving the intervention is to provide support that any change in outcomes in the cases receiving the intervention is likely due to the intervention and not some external factor (internal validity).
In alignment with WWC procedures, HomVEE currently grants exceptions to this standard for individual manuscripts or interventions in consultation with subject matter experts. HomVEE proposes making the requirement more flexible by clarifying that baseline probe points may be collected when the intervention is introduced or in subsequent baseline sessions.
The other flexibilities relate to the demonstration of effects—either the minimum number of effects demonstrated or the data points required to demonstrate an effect.
To facilitate a transparent review, HomVEE proposes to clarify the process for granting and documenting the application of these flexibilities. Specifically, HomVEE proposes to specify that, if warranted, the HomVEE team can grant exceptions in collaboration with subject matter experts, and the exception (and its rationale) will be documented clearly in the review and related dissemination efforts.
HomVEE proposes to apply the new procedures and standards for SCD research beginning with the 2021 review.
Following the 2020 substantial update to HomVEE procedures and standards, HomVEE proposes additional changes focused specifically on SCD research. The table below summarizes the proposed changes to be made to the HomVEE Version 2 Handbook and the relevant handbook section(s) that HomVEE proposes to update.
Through this FRN, ACF is soliciting information from a broad array of stakeholders on the proposed revisions to HomVEE's procedures and standards related to SCD research. Federal, state, and local decision makers rely on HomVEE to know which home visiting models are effective. Applying the HHS criteria to SCDs as they are applied to other quasi-experimental designs or randomized controlled trials means that well-designed, well-executed SCD research will be treated on par with other forms of well-designed, well-executed impact studies.
Responses to this FRN will inform ACF's ongoing discussion about HomVEE's procedures and standards with the aim of publishing a final HomVEE Version 2.1 Handbook of Procedures and Standards in 2021. This RFI is for information and planning purposes only and should not be construed as a solicitation or as an obligation on the part of ACF or HHS.
Social Security Act Title V § 511 [42 U.S.C. 711], as extended by the Bipartisan Budget Act of 2018 (Pub. L. 115-123) through fiscal year 2022.
Family and Youth Services Bureau (FYSB); Administration on Children, Youth and Families (ACYF); Administration for Children and Families; HHS.
Request for Public Comment.
The Administration on Children, Youth and Families (ACYF), Family and Youth Services Bureau has a legislative requirement to collect and maintain client statistical records on the numbers and the characteristics of runaway and homeless youth, and youth at risk of family separation, who receive shelter and supportive services through the Runaway and Homeless Youth (RHY) Program funding. RHY data collection is integrated with the U.S. Department of Housing and Urban Development's (HUD) Homeless Management Information System (HMIS).
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. Coast Guard, Department of Homeland Security.
Request for applications.
The U.S. Coast Guard is requesting nominations for persons interested in serving as a member of the Great Lakes Pilotage Advisory Committee (Committee). The Great Lakes Pilotage Advisory Committee provides advice and makes recommendations to the Secretary of Homeland Security through the U.S.
Your completed applications should reach the U.S. Coast Guard on or before May 21, 2021.
Nominations should include a cover letter expressing a letter of support from the nominating group, a cover letter expressing the nominees' interest in an appointment to the Committee, and a resume detailing their experience. We will not accept a biography. Applications should be submitted via email with the subject line “GLPAC” to Mr. Vincent Berg at:
Mr. Vincent Berg; telephone 202-906-0835 or email at
The Great Lakes Pilotage Advisory Committee is a Federal advisory committee. It will operate under the provisions of the
Meetings of the Great Lakes Pilotage Advisory Committee will be held with the approval of the Designated Federal Officer. The Committee is required to meet at least once per year. Additional meetings may be held at the request of a majority of the Committee or at the discretion of the Designated Federal Officer.
Each Great Lakes Pilotage Advisory Committee member serves a term of office of up to 3 years. Members may serve a maximum of six consecutive years. All members serve at their own expense and receive no salary or other compensation from the Federal Government. Members may be reimbursed, however, for travel and per diem in accordance with Federal Travel Regulations.
The membership of the Great Lakes Pilotage Advisory committee was recently modified by Section 8334 of the Elijah E. Cummings Coast Guard Authorization Act of 2020 within the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, January 1, 2021. Section 8334(a) of the Elijah E. Cummings Coast Guard Authorization Act of 2020 contains the changes to the Committee membership requirements in 46 U.S.C. 9307(b) that we are soliciting for now.
We will consider nominations for the following positions modified under the Elijah E. Cummings Coast Guard Authorization Act of 2020 for:
1. One member chosen from among nominations made by Great Lakes port authorities and marine terminals;
2. One member chosen from among nominations made by Great Lakes maritime labor organizations.
3. One member, who is recommended by unanimous vote of the other members of the Committee, and may be appointed without regard to the requirement to have 5 years of practical experience in maritime operations.
To be eligible, applicants who are nominated should have particular expertise, knowledge, and experience regarding the regulations and policies on the pilotage vessels on the Great Lakes, and at least five years of practical experience in maritime operations.
Registered lobbyists are not eligible to serve on Federal Advisory Committees in an individual capacity. See “
The Department of Homeland Security does not discriminate in selection of Committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
Nomination(s) to become a member of the Committee, should include the cover letter and resume to be sent to Mr. Vincent F. Berg, Great Lakes Pilotage Advisory Committee, via the transmittal method in the
When you send your application to us via email, we will send you an email confirming receipt of your application.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-4586-DR), dated February 19, 2021, and related determinations.
This amendment was issued February 25, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 19, 2021.
Atascosa, Bandera, Brooks, Duval, Eastland, Ector, Goliad, Howard, Jim Hogg, Karnes, Kleberg, Leon, Llano, Newton, Robertson, Trinity, Webb, and Willacy Counties for Individual Assistance (already designated for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before June 21, 2021.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2118, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-4586-DR), dated February 19, 2021, and related determinations.
This amendment was issued March 4, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that the incident period for this disaster is closed effective February 21, 2021.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Alaska (FEMA-4585-DR), dated February 17, 2021, and related determinations.
The declaration was issued February 17, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated February 17, 2021, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Alaska resulting from severe storms, flooding, landslides, and mudslides during the period of November 30 to December 2, 2020, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the state. Consistent with the requirement that federal assistance be supplemental, any federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Thomas J. Dargan, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Alaska have been designated as adversely affected by this major disaster:
Chatham Regional Educational Attendance Area, Haines Borough, City and Borough of Juneau, Petersburg Borough, and the Municipality of Skagway Borough for Public Assistance.
All areas within the State of Alaska are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-4586-DR), dated
February 19, 2021, and related determinations.
This amendment was issued February 22, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Texas is hereby amended to
Anderson, Austin, Bosque, Bowie, Burnet, Cherokee, Colorado, Erath, Fannin, Freestone, Gonzalez, Grayson, Gregg, Harrison, Hill, Houston, Hunt, Jackson, Jim Wells, Jones, Limestone, Lubbock, Medina, Milam, Navarro, Rusk, Taylor, Tom Green, Val Verde, Washington, and Wood Counties for Individual Assistance (already designated for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before June 21, 2021.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2113, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Navajo Nation (FEMA-4582-DR), dated
February 2, 2021, and related determinations.
This amendment was issued February 25, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the Navajo Nation is hereby amended to include Individual Assistance limited to the Crisis Counseling Program for those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 2, 2021.
Individual Assistance limited to the Crisis Counseling Program for the Navajo Nation (already designated for emergency protective measures [Category B] not authorized under other Federal statutes, including direct Federal assistance).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Washington (FEMA-4584-DR), dated February 4, 2021, and related determinations.
The declaration was issued February 4, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated February 4, 2021, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Washington due to damage resulting from wildfires and straight-line winds during the period of September 1 to September 19, 2020, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Timothy B. Manner, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Washington have been designated as adversely affected by this major disaster:
Douglas, Franklin, Kittitas, Lincoln, Okanogan, Pend Oreille, Skamania, Whitman, and Yakima Counties and the Confederated Tribes of the Colville Reservation and the Confederated Tribes and Bands of the Yakama Nation for Public Assistance.
All areas within the State of Washington are eligible for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Alabama (FEMA-4573-DR), dated December 10, 2020, and related determinations.
This amendment was issued January 27, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Alabama is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of December 10, 2020.
Lowndes County for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the Navajo Nation (FEMA-4582-DR), dated February 2, 2021, and related determinations.
The declaration was issued February 2, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated February 2, 2021, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the emergency conditions associated with the Navajo Nation resulting from the Coronavirus Disease 2019 (COVID-19) pandemic beginning on January 20, 2020, and continuing, are of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide emergency protective measures (Category B), including direct Federal assistance, under the Public Assistance program for the Navajo Nation. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Tammy Littrell, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the Navajo Nation have been designated as adversely affected by this major disaster:
Emergency protective measures (Category B) not authorized under other Federal statutes, including direct Federal assistance, under the Public Assistance program at 75 percent federal funding for the Navajo Nation.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Maryland (FEMA-4583-DR), dated February 4, 2021, and related determinations.
The declaration was issued February 4, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated February 4, 2021, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Maryland resulting from Tropical Storm Isaias during the period of August 3 to August 4, 2020, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, E. Craig Levy, Sr., of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Maryland have been designated as adversely affected by this major disaster:
Calvert, Dorchester, and St. Mary's Counties for Public Assistance.
All areas within the State of Maryland are eligible for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana (FEMA-4577-DR), dated
January 12, 2021, and related determinations.
This amendment was issued February 25, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Louisiana is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of January 12, 2021.
Jefferson, Lafourche, Orleans, Plaquemines, and St. Bernard Parishes for permanent work [Categories C-G] (already designated for Individual Assistance and debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
St. Charles Parish for permanent work [Categories C-G] (already designated for debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
St. Tammany Parish for debris removal [Category A] and permanent work [Categories C-G] (already designated for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
Terrebonne Parish for debris removal [Category A] and permanent work [Categories C-G] (already designated for Individual Assistance and emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana (FEMA-4570-DR), dated
October 16, 2020, and related determinations.
This amendment was issued January 27, 2021.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW, Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Louisiana is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 16, 2020.
Acadia, Cameron, and Jefferson Davis Parishes for permanent work [Categories C-G] (already designated for Individual Assistance and debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
Caldwell and Evangeline Parishes for permanent work [Categories C-G] (already designated for debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
Catahoula and East Feliciana Parishes for debris removal [Category A] and permanent work [Categories C-G] (already designated for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
Richland Parish for debris removal [Category A] and permanent work [Categories C-G] (already designated for emergency protective measures [Category B], limited to direct federal assistance, under the Public Assistance program).
Union Parish for permanent work [Categories C-G] (already designated for emergency protective measures [Category B], limited to direct federal assistance, under the Public Assistance program).
West Feliciana for debris removal [Category A] (already designated for emergency protective measures [Category B], including direct federal assistance, under the Public Assistance program).
Federal Emergency Management Agency, U.S. Department of Homeland Security.
Notice of New Privacy Act system of records.
In accordance with the Privacy Act of 1974, the U.S.
Submit comments on or before April 21, 2021. This new system will be effective upon publication. New or modified routine uses will be effective April 21, 2021.
You may submit comments, identified by docket number FEMA-2020-0032 by one of the following methods:
•
•
•
For general questions, please contact: Tammi Hines, (202) 212-5100,
The U.S. Department of Homeland Security (DHS) Federal Emergency Management Agency (FEMA) proposes to establish a new DHS system of records titled, “DHS/FEMA-015 Fraud Investigations System of Records.” FEMA's Fraud Investigations and Inspections Division (FIID) is responsible for investigating allegations of fraud involving federal disaster funds and/or benefits by a disaster applicant or contractor associated with a disaster assistance award or grant. These investigations may relate to applicants for FEMA disaster benefits; FEMA employees and contractors who violate law, policy, or procedure; and insurance procurement and grant fraud. FEMA conducts these investigations pursuant to an inquiry or tip from various sources, including FEMA employees; government contractors supporting FEMA operations; the DHS Office of the Inspector General (OIG); members of the public; and other federal, state, local, or tribal law enforcement entities.
FEMA FIID routinely collects these records as part of standard investigative protocols in support of disaster fraud investigations. In the past few years, FEMA has experienced substantial increases in the amount of fraud involving federal disaster benefits. For example, during the storm events of 2017, FEMA experienced over $10 million in identity theft fraud which involved stolen personally identifiable information (PII) from both eligible and non-eligible disaster applicants. FEMA has been proactive in working with its federal, state, and local law enforcement partners, including the Federal Bureau of Investigation (FBI), DHS/OIG, U.S. Department of Housing and Urban Development/OIG, U.S. Small Business Administration/OIG, and U.S. Social Security Administration/OIG, in combating and strengthening safeguards to prevent fraud, while also considering the emergency needs of many disaster applicants in the hardest hit areas of the country.
As part of an investigation, FEMA FIID collects PII of disaster applicants from the FEMA National Emergency Management Information System (NEMIS)—Individual Assistance (IA) module. FEMA FIID may also collect or confirm PII from commercial or government databases to include Lexis Nexis, Thomas Reuters CLEAR, National Insurance Crime Bureau/ISO Claim Search Plates, CarFax, or the FBI National Crime Information Center (NCIC). FIID uses the information to document financial transactions and compare data and information located in the different databases to identify indications that may substantiate or disprove fraud by a disaster applicant.
Consistent with DHS's information sharing mission, information collected by FEMA FIID and stored in the DHS/FEMA-Investigative Records System of Records may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. FEMA FIID generally shares the information with the Department of Justice, U.S. Attorney Offices; and the U.S. Treasury Department, Bureau of Fiscal Services in accordance with approved Information Sharing and Access Agreements (ISAA). In addition, DHS/FEMA may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in the system of records notice.
Additionally, DHS is issuing a Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act elsewhere in the
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which federal government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, and similarly, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
Below is the description of the DHS/FEMA-015 Fraud Investigations System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of
U.S. Department of Homeland Security (DHS) Federal Emergency Management Agency (FEMA)-015 Fraud Investigations System of Records.
Unclassified.
Records are maintained on access-controlled servers or in access-controlled cabinets that are under the management and control by the FEMA Office of Chief Information Officer at FEMA Headquarters in Washington, DC, and field offices.
FEMA Investigations and Inspections Division (FIID), Fraud Prevention Investigations Branch (FPIB), Fraud Investigations Operations Manager, 400 C Street SW, Washington, DC, Suite 7SW-1009, Mail Stop 3005.
Robert T. Stafford Disaster Relief and Emergency Assistance Act,
The purpose of this system is to collect, maintain, and share records related to fraud investigations conducted by the FEMA FIID. It allows FEMA to conduct the necessary investigations to safeguard and protect federal disaster funds and/or benefits from fraud against the United States.
Categories of individuals covered by this system include any: (1) Individual who files a complaint or report alleging fraud or misuse of federal disaster benefits; (2) individual who is the subject of the disaster fraud complaint or report; (3) individual who has submitted potentially fraudulent applications for disaster fund benefits; and (4) individual who is associated with the fraud investigation but not the actual subject of the investigation and whose information is relevant to the fraud case.
Categories of records in this system include:
• Full name of applicant and co-applicant, including aliases;
• Full names of dependents and/or others living in the dwelling associated with the investigation;
• Full names and addresses of associates and relatives;
• Position or title of applicant or associates and relatives, as needed;
• Date of birth;
• Social Security number (SSN);
• Phone numbers;
• Email addresses;
• Addresses (mailing and damaged dwelling associated with the investigation);
• Address history (addresses lived at prior to the damaged dwelling associated with the investigation);
• Employment information and data (
• Banking name and account information, including routing numbers, electronic funds transfer information, and credit/debit account information;
• FEMA Registration Identification Number;
• Property, building, and structural photographs;
• Publicly available criminal records;
• Publicly available civil court records (
• Driver's license data (current and historical);
• Vehicle records (current and historical);
• Business and professional license information (
• Social media information, to include posts, user name/handles, comments, and photographs;
• National Flood Insurance Program (NFIP) records;
• Private house, property, and vehicle insurance records;
• Voter registration records (to determine location data);
• Property records (
• School or education institution location information (no transcripts or education records);
• Utility Company information;
• Aerial property photographs and Google Earth Street View photographs;
• Transcripts of conversations with FEMA call centers or helpdesk, including name, address, phone number, email address, caller type (
• Other relevant information or documents voluntarily provided by disaster applicants that is contained in the NEMIS database; and
• Names and contact information of complainants and witnesses interviewed by Investigators.
Records are obtained from individuals who are the subject of the investigation or inquiry, employers, law enforcement organizations, members of the public, witnesses, educational institutions, government agencies, nongovernmental organizations, credit bureaus, commercial databases, references, confidential sources, personal interviews, photographic images, financial institutions, and the personnel history and application forms of agency applicants, employees, or contractors.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the U.S. Attorneys, or other federal agencies conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of the system of records; (2) DHS
F. To another federal agency or federal entity, when DHS determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the federal government, or national security, resulting from a suspected or confirmed breach.
G. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
H. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
I. To appropriate federal, state, tribal, and local government agencies that provide assistance with disaster fraud investigations for FEMA to investigate and verify the identity of a subject or witness, or investigate and verify the information provided by the subject or witness to the extent disclosure is necessary to obtain information pertinent to the fraud investigation, including those investigations to prevent or identify fraudulent disaster applications involving identity theft.
J. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or when disclosure is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the context of a particular case would constitute a clearly unwarranted invasion of personal privacy.
DHS/FEMA stores records in this system electronically, paper files, magnetic disc, tape, or other digital media in a locked drawer within secure access-controlled facilities.
Records may be retrieved by an individual's name or address, fraud complaint or investigation number, FEMA Registration Identification Number, or FEMA FIID investigator's name.
In accordance with National Archives and Records Administration (NARA) authority N1-311-99-6, Item 1, AUD 1-1, FEMA FIID retains investigative case files containing information or allegations which are of an investigative nature but do not relate to a specific investigation for five (5) years. Further, in accordance with NARA authority N1-311-99-6, Item 2, AUD 1-2, FEMA FIID retains all other investigative case files except those that are unusually significant for documenting major criminal or ethical violations by others for ten (10) years from the end of the fiscal year when a case is closed. Additionally, in accordance with NARA authority N1-311-99-6, Item 3, AUD 1-3, FEMA FIID retains significant investigative case files that attract significant attention from the media or Congress; result in substantive agency policies and procedures; or are cited in OIG's periodic reports to Congress. These case files are retired to the Federal Records Center five (5) years from when a case is closed and transferred to the National Archives twenty (20) years from when a case is closed.
DHS/FEMA safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. DHS/FEMA FIID has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system or any paper files in the access-controlled cabinets are limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act, and the Judicial Redress Act if applicable to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; ensure DHS's ability to obtain information from third parties and other sources; and to protect the privacy of third parties. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.
However, DHS/FEMA will consider individual requests to determine whether information may be released. Thus, individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and FEMA FOIA Officer whose contact information can be found at
When seeking records from this system of records or any other Departmental system of records, the request must conform with the Privacy Act regulations set forth in 6 CFR part 5. Individuals must first verify identity, meaning that that full name, current address, and date and place of birth must be provided. Request must be signed, and the signature must either be
• Explain why the requestor believes that the Department would have information on the requestor;
• Identify which component(s) of the Department may have the information;
• Specify the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records;
If the request is seeking records pertaining to another living individual, the request must include a statement from that individual certifying his/her agreement for the requestor to access his/her records.
Without the above information, the component(s) may not be able to conduct an effective search, and the request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered JRA records, individuals may make a request for amendment or correction of a record of the Department about the individual by writing directly to the Department component that maintains the record, unless the record is not subject to amendment or correction. The request should identify each particular record in question, state the amendment or correction desired, and state why the individual believes that the record is not accurate, relevant, timely, or complete. The individual may submit any documentation that would be helpful. If the individual believes that the same record is in more than one system of records, the request should state that and be addressed to each component that maintains a system of records containing the record. For records covered by the Privacy Act or covered Judicial Redress Act records, see “Record Access Procedures” above.
See “Record Access Procedures” above.
The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). While investigating a complaint, records, or information covered by other systems of records may become part of, merged with, or recompiled within this system. To the extent this occurs, DHS will claim the same exemptions for those records that are claimed in the original primary systems from which they originated and claim any additional exemptions set forth here.
None.
U.S. Customs and Border Protection, U.S. Department of Homeland Security.
Notice of Modified Privacy Act System of Records.
In accordance with the Privacy Act of 1974, the U.S. Department of Homeland Security (DHS) proposes to modify and reissue a current DHS system of records titled, “DHS/U.S. Customs and Border Protection (CBP)-018 Customs Trade Partnership Against Terrorism System of Records.” This system of records allows DHS/CBP to collect and maintain records about members of the trade community related to CBP's Customs Trade Partnership Against Terrorism (CTPAT) Program. Businesses accepted into the Program, called partners, agree to analyze, measure, monitor, report, and enhance their supply chains in exchange for greater security and facilitated processing offered by CBP. The CTPAT Program allows CBP to focus its resources on higher risk businesses and thereby assists the agency in achieving its mission to secure the border and facilitate the movement of legitimate international trade. CBP is reissuing this modified system of records notice alongside a Notice of Proposed Rulemaking, issued elsewhere in the
Submit comments on or before April 21, 2021. This modified system will be effective upon publication. New or modified routine uses will be effective April 21, 2021.
You may submit comments, identified by docket number USCBP-2020-0052 by one of the following methods:
•
•
•
For general questions, please contact: Debra L. Danisek, CBP Privacy Officer, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Room 3.3D, Washington, DC 20229, or
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) proposes to modify and reissue a current DHS system of records titled, “DHS/CBP-018 Customs Trade Partnership Against Terrorism (CTPAT) System of Records.”
DHS/CBP is reissuing this modified system of records notice to update its description of how CBP collects and maintains information pertaining to prospective, ineligible, current, or former trade partners that participate in the CTPAT Program; other entities and individuals in their supply chains; and members of foreign governments' secure supply chain programs that have been recognized by CBP, through a mutual recognition arrangement or comparable arrangement, as being compatible with the CTPAT Program. DHS/CBP is updating this system of records notice to
CBP uses the information collected and maintained through the CTPAT security and trade compliance programs to carry out its trade facilitation, law enforcement, and national security missions. In direct response to 9/11, CBP challenged the trade community to partner with the government to design a new approach to supply chain security—one that protects the United States from acts of terrorism by improving security while facilitating the flow of compliant cargo and conveyances. The result was the CTPAT Program—a voluntary government/private sector partnership program in which certain types of businesses agree to cooperate with CBP in the analysis, measurement, monitoring, reporting, and enhancement of their supply chains.
Businesses accepted into the CTPAT Program are called partners and agree to take actions to protect their supply chain, identify security gaps, and implement specific security measures and best practices in return for facilitated processing of their shipments by CBP. The Program focuses on improving security from the point of origin (including manufacturer, supplier, or vendor) through a point of distribution to the destination. The current security guidelines for CTPAT Program members address a broad range of topics including personnel, physical, and procedural security; access controls; education, training and awareness; manifest procedures; conveyance security; threat awareness; and documentation processing. These guidelines offer a customized solution for the members, while providing a clear minimum standard that approved companies must meet.
Businesses eligible to fully participate in the CTPAT Program include U.S. importers and exporters; U.S./Canada highway carriers; U.S./Mexico highway carriers; rail and sea carriers; licensed U.S. Customs brokers; U.S. marine port authority/terminal operators; U.S. freight consolidators; ocean transportation intermediaries and non-operating common carriers; Mexican and Canadian manufacturers; and Mexican long-haul carriers.
CTPAT Program members in good standing may optionally participate in the CTPAT Trade Compliance program. Beginning in March 2020, the former Importer-Self Assessment (ISA) program was integrated into CTPAT as CTPAT Trade Compliance. DHS/CBP is updating this SORN to clarify the additional records collected as part of the CTPAT Trade Compliance program, which is limited to existing CTPAT members. To qualify for the CTPAT Trade Compliance program, an importer must submit an additional application via the CTPAT Portal and (a) be a Member of the CTPAT Security Program and in good standing, (b) meet the eligibility criteria laid out in the Eligibility Questions, and (c) complete a Memorandum of Understanding (MOU) and Program Questionnaire.
To participate in the CTPAT Program, a company is required to submit a confidential, online application using the CTPAT Security Link Portal,
Additionally, the applicant business must complete a Supply Chain Security Profile (SCSP). The information provided in the SCSP is a narrative description of the procedures the applicant business uses to adhere to each CTPAT Security Criteria or Guideline articulated for their particular business type (
In addition to clarifying the inclusion of the CTPAT Trade Compliance program as part of the CTPAT System of Records, DHS/CBP is modifying Routine Use “E” and adding Routine Use “F” to conform to OMB Memorandum M-17-12. The previous Routine Use “F” has been re-lettered as Routine Use “H,” the content of the previous Routine Use “G” has been modified to conform with current DHS guidance, and Routine Use “I” has been deleted. All subsequent Routine Uses have been renumbered to account for these changes. CBP is also expanding the category of records to assist in vetting individuals listed as associated with partner companies. The expanded categories of records include: Date of birth (DOB); country of birth; country of citizenship; travel document number; immigration status information; driver's license information; Trusted Traveler membership type and number; and Registro Federal de Contribuventes (RFC) Persona Fisica (for Mexican Foreign Manufacturers, Highway Carriers, and Long Haul Carriers Only). Furthermore, DHS/CBP is expanding the collection of U.S. Social Security number beyond sole proprietors to now include the collection from all individuals listed as associated with partner companies. Additionally, this notice includes non-substantive changes to simplify the formatting and text of the previously published notice.
Consistent with DHS's information sharing mission, information stored in the DHS/CBP-018 Customs-Trade Partnership Against Terrorism (CTPAT) system of records may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/CBP may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
Additionally, DHS is issuing a Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act, issued elsewhere in the
This modified system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of any agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Similarly, the Judicial Redress Act (JRA) provides a statutory right to
Below is the description of the DHS/CBP-018 CTPAT system of records. In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
U.S. Department of Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-018 Customs Trade Partnership Against Terrorism (CTPAT) System of Records.
Unclassified, Sensitive Security Information, law enforcement sensitive.
Records are maintained at CBP Headquarters in Washington, DC and field offices, in the CTPAT Portal, and in a CBP collaborative intranet.
CTPAT Director, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Washington, DC 20229; (202) 344-3969. For CTPAT in general, contact
This system and program are authorized by 6 U.S.C. 901 note (Security and Accountability for Every Port Act of 2006 (SAFE Port Act)), including 6 U.S.C. secs. 961-973. Pilot programs enhancing secure supply chain practices related to CTPAT are also authorized by Presidential Policy Directive/PPD-8, “National Preparedness” (March 30, 2011).
The purpose of this system is to verify the identity of CTPAT partners, determine enrollment level, and provide identifiable “low risk” entities with fewer random checks and facilitated processing. The information will be cross-referenced with data maintained in CBP's other cargo and enforcement databases and will be shared with other law enforcement systems, agencies or foreign entities, as appropriate, when related to ongoing investigations or operations. Information will be used to analyze, measure, monitor, report, and enhance business supply chains to permit facilitated processing of CTPAT partner shipments by CBP.
Individuals, including Points of Contact, owners, and others associated with prospective, ineligible, current, or former CTPAT business entities; individuals associated with the supply chain of such CTPAT business entities; and individuals associated with business entities in foreign governments' secure supply chain programs that have been recognized by CBP, through harmonization, a mutual recognition arrangement (MRA), or comparable arrangement, as being compatible with the CTPAT Program.
At the application level, information is collected from the applicant about itself and those members of its international supply chain. Pre-set fields of business-identifying information within the company profile portion of the online application include:
• Business Entity Type;
• Application Exception Token;
• Legal Business Name;
• Other Name(s) by which the Business is known (
• Business Telephone;
• Business Fax;
• Business website Address;
• Business History;
• Physical Address(es);
• Mailing Address(es);
• Owner Type (
• Years in Business;
• Number of Employees;
• Business Points of Contacts;
• First Name;
• Last Name;
• Date of Birth;
• Country of Birth;
• Country of Citizenship;
• Travel Document number (
• Alien Registration Number
• Naturalization number;
• Driver's license information (
• Trusted Traveler membership type and number (
• Registro Federal de Contribuventes (RFC) Persona Fisica (needed for Mexican Foreign Manufacturers, Highway Carriers, and Long Haul Carriers Only);
• Title;
• Email Address (also used to log in to the Security Link Portal);
• Password;
• Telephone Number;
• Contact Type;
• U.S. Social Security numbers;
• Internal Revenue Service Business Identification Numbers;
• Customs assigned identification numbers (
• Issue Papers, including information regarding whether the applicant is eligible for CTPAT membership or source record numbers for such information;
• Narrative description of supply chain security procedures for applicant and other entities in applicant's supply chain;
• Validation supporting documentation (
• Account Status.
Information received from and confirmed to countries with which CBP has a Mutual Recognition Arrangement (MRA) includes:
• Legal Business Name;
• Other Name(s) by which the Business is known (
• Company Type;
• Date Partner Certified;
• Account Status;
• Vetting Status;
• Date Validation Completed;
• CBP Supply Chain Security Specialist (SCSS) Name;
• Office Assigned Name;
• Mutual Recognition Country;
• Business identifying numbers,
○ Standard Carrier Alpha Code (SCAC);
○ IOR; and
○ MID.
By Applicant request, information received from, and forwarded to, foreign secure supply chain programs pursuant to a harmonization program may include:
• Legal Name;
• Doing Business As;
• Telephone Number;
• Fax Number;
• website;
• Owner Type;
• Business Start Date;
• Number of Employees;
• Brief Company History;
• Primary Address (Type, Name, Country, Street Address, City, State/Province, Zip/Postal Code);
• Mailing Address (Type, Name, Country, Street Address, City, State/Province, Zip/Postal Code);
• Primary Contact:
○ Email Address;
○ Type;
○ Salutation;
○ First Name;
○ Last Name;
○ Date of Birth;
○ Title; and
○ Telephone Number.
• Partner Notifications;
• Number of Entries;
• U.S. Department of Transportation (DOT) Issued Number;
• U.S. National Motor Freight Traffic Association Issued;
• SCAC;
• Dun & Bradstreet Number;
• Services Offered;
• Driver Sources;
• Entries related to harmonization country;
• Account Status;
• Vetting Status;
• Minimum Security Requirements/Security Profile Status;
• Validation Status; and
• Harmonization Status.
The CTPAT Security Profile includes:
• Account Number;
• Risking Status;
• Minimum Security Requirements (MSR) Status;
• Validation Type;
• Validation Closed Date;
• Validation Status;
• Validation Type Verification (Government Contact);
• Verification Type Start Date;
• Verification Type: (phone, visit, mutual recognition);
• Verification Visit address;
• Business Type; and
• Harmonization Host Program.
The records pertaining to the Trade Compliance Application Process:
• Trade Compliance Questionnaire:
○ Company name;
○ Business address;
○ Phone number;
○ Company website;
○ Company type—public or private;
○ Company contact: Name, date of birth, title, phone number and email address; and
○ Responses pertaining to Forced Labor.
• Memorandum of Understanding; and
• Annual Notification Letter (ANL);
○ Company Information: Organizational and/or Personnel Changes;
○ Import Activity Change records;
○ Internal Control Adjustments and Change records;
○ Risk Assessment Results;
○ Periodic Testing Results; and
○ Prior Disclosures.
Records are obtained from the CTPAT applicant business; from CBP systems, including TECS, the Automated Targeting System (ATS), the Automated Commercial Environment (ACE); and from public sources. Information is also collected by the SCSS from the CTPAT applicant and other businesses during the course of validating the business's supply chain and from foreign governments and multilateral governmental organizations with which CBP has entered into MRAs or other arrangements. To the extent a CTPAT partner applies for the CTPAT Trade Compliance program, CBP regulatory audit personnel collect information from the applicant as part of the Application Review Meeting.
In addition to those disclosures generally permitted under 5 U.S.C. 5 sec. 52a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including the U.S. Attorneys Offices, or other federal agencies conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. secs. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of the system of records; (2) DHS has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DHS (including its information systems, programs, and operations), the federal government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
F. To another federal agency or federal entity, when DHS determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
I. To appropriate foreign governmental agencies or multilateral governmental organizations pursuant to an arrangement between CBP and a foreign government or multilateral governmental organization regarding supply chain security.
J. To an appropriate federal, state, local, territorial, tribal, or foreign governmental agencies or multilateral governmental organizations or other appropriate authority or entity when necessary to vet a CTPAT applicant or validate a CTPAT partner.
K. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations when DHS reasonably believes there to be a threat or potential threat to national or international security for which the information may be relevant in countering the threat or potential threat.
L. To a federal, state, tribal, or local agency, or other appropriate entity or individual, or foreign governments, in order to provide relevant information related to intelligence, counterintelligence, or antiterrorism activities authorized by U.S. law, Executive Order, or other applicable national security directive.
M. To an organization or individual in either the public or private sector, either foreign or domestic, when there is a reason to believe that the recipient is or could become the target of a particular terrorist activity or conspiracy, or when the information is relevant and necessary to the protection of life or property.
N. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation.
O. To an appropriate federal, state, local, tribal, foreign, or international agency, if the information is relevant to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant or other benefit.
P. To a federal, state, local, tribal, or foreign governmental agency or multilateral governmental organization for the purpose of consulting with that agency or entity: (1) to assist in making a determination regarding redress for an individual in connection with the operations of a DHS component or program; (2) for the purpose of verifying the identity of an individual seeking redress in connection with the operations of a DHS component or program; or (3) for the purpose of verifying the accuracy of information submitted by an individual who has requested such redress on behalf of another individual.
Q. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations for the purpose of protecting the vital health interests of a data subject or other persons (
R. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or when disclosure is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
DHS/CBP stores records in this system of records electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media.
Records may be retrieved by any of the information listed in the categories of records above.
The following records retention schedule for CTPAT is pending approval by NARA: information stored in CTPAT will be retained for the period during which the application is pending decision by CBP and for the period of active membership of the business entity, plus 20 years after membership has ended in the Program. Where information regarding the possible ineligibility of an applicant for CTPAT membership is found, it will be retained in the CTPAT system for 20 years from the date of denial to assist with future vetting, or consistent with the applicable retention period for the system of records from which such information was derived, whichever is longer.
DHS/CBP safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. DHS/CBP has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The CTPAT Portal provides access to those applicants or partners who have submitted information in the portal. The CTPAT partner interface allows participants to access and change the information they have provided at any time by accessing their business identifying information and CTPAT profile through secure login procedures. CTPAT partners access the CTPAT Portal via
CTPAT partners have the ability to communicate with their assigned SCSS if they believe CBP has acted upon inaccurate or erroneously provided information. If this method is unsuccessful and CTPAT facilitated processing is denied or removed, the entity may make written inquiry regarding such denial or removal. The applicant should provide as much identifying information as possible regarding the business, in order to identify the record at issue. CTPAT participants may provide CBP with additional information to ensure that the information maintained by CBP is accurate and complete. The submitter will receive a written response to each inquiry. If CTPAT partnership is suspended or removed, the business may appeal this decision to CBP HQ, to the attention of the Executive Director, Cargo and Conveyance Security, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Room 2.2A, Washington, DC 20229.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act, and the Judicial Redress Act if applicable, because it is a law enforcement system. However, DHS/CBP will consider individual requests to determine whether information may be released. Thus, individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy
When an individual is seeking records about himself or herself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify his/her identity, meaning that the individual must provide his/her full name, current address, and date and place of birth. The individual must sign the request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, an individual may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• Explain why he or she believes the Department would have information being requested;
• Identify which component(s) of the Department he or she believes may have the information;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records;
If an individual's request is seeking records pertaining to another living individual, the first individual must include a statement from the second individual certifying his/her agreement for the first individual to access his/her records.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered JRA records, individuals may make a request for amendment or correction of a record of the Department about the individual by writing directly to the Department component that maintains the record, unless the record is not subject to amendment or correction. The request should identify each particular record in question, state the amendment or correction desired, and state why the individual believes that the record is not accurate, relevant, timely, or complete. The individual may submit any documentation that would be helpful. If the individual believes that the same record is in more than one system of records, the request should state that and be addressed to each component that maintains a system of records containing the record.
See “Record Access Procedures” above.
No exemption shall be asserted with respect to information requested from and provided by the CTPAT Program applicant including company profile, supply chain information, and other information provided during the application and validation process. CBP will not assert any exemptions for an individual's application data and final membership determination in response to an access request from that individual. However, the Privacy Act requires DHS to maintain an accounting of the disclosures made pursuant to all routines uses. Disclosing the fact that a law enforcement agency has sought particular records may affect ongoing law enforcement activities. As such, pursuant to 5 U.S.C. 552a(j)(2), DHS will claim exemption from sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is necessary and appropriate to protect this information. Further, DHS will claim exemption from section (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and appropriate to protect this information.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, all other CTPAT Program data, including information regarding the possible ineligibility of an applicant for CTPAT membership discovered during the vetting process and any resulting issue papers, are exempt from 5 U.S.C. secs. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), and (e)(8); (f); and (g). Pursuant to 5 U.S.C. 552a(k)(2), information regarding the possible ineligibility of an applicant for CTPAT Program membership discovered during the vetting process and any resulting issue papers are exempt from 5 U.S.C. secs. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). In addition, to the extent a record contains information from other exempt systems of records, CBP will rely on the exemptions claimed for those systems.
78 FR 15962 (March 13, 2013).
U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security.
Notice of a new Privacy Act system of records.
In accordance with the Privacy Act of 1974, the U.S. Department of Homeland Security (DHS) proposes to consolidate two current systems of records, “DHS/U.S. Immigration and Customs Enforcement (ICE)-005 Trade Transparency Analysis and Research System of Records” and “DHS/ICE-016 FALCON Search and Analysis System of Records,” into an overarching system of records titled, “DHS/ICE-018 Analytical Records.” This new agency-wide system of records notice covers records maintained by ICE to allow personnel to search, aggregate, and visualize large volumes of information to enforce criminal, civil, and administrative laws under ICE's jurisdiction. Additionally, DHS is issuing a Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act elsewhere in the
Submit comments on or before April 21, 2021. This modified system will be effective upon publication. Routine uses will be effective April 21, 2021.
You may submit comments, identified by docket number ICEB-
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For general questions, please contact: Jordan Holz,
The U.S. Department of Homeland Security (DHS)/U.S. Immigration and Customs Enforcement (ICE) proposes to issue a new DHS system of records notice (SORN) titled, “DHS/ICE-018 Analytical Records.” DHS/ICE is creating this new system of records to better reflect and clarify the nature of all records collected, maintained, processed, and shared by ICE in large analytical data environments.
This system of records consolidates the following two notices, “DHS/ICE-005 Trade Transparency Analysis and Research (TTAR) System of Records,” 79 FR 71112 (December 1, 2014), and “DHS/ICE-016 FALCON Search and Analysis (FALCON-SA) System of Records,” 82 FR 20905 (May 4, 2017), into one new system of records. This new system of records reflects the types of information and records ICE collects and maintains in analytical systems to support its law enforcement and investigative mission, rather than linking the SORN to specific IT system(s). This SORN provides greater transparency of ICE's processes and more accurately reflects the storage of records in the cloud computing environment. After the routine uses of this SORN are effective, ICE will publish a rescindment notice for both the DHS/ICE-005 TTAR SORN and the DHS/ICE-016 FALCON-SA SORN.
ICE analytical systems help ICE personnel conduct research and analysis using advanced analytic tools in support of their law enforcement and investigative mission. These tools allow ICE to query, analyze, and present large amounts of data in a variety of formats that can help illuminate relationships among the various data elements. Some analytical tools may incorporate the use of artificial intelligence and machine learning to assist ICE personnel in examining large and complex datasets. All analytical systems and tools under this system of records use a central data store to eliminate the need for multiple copies of the data. The central data store streamlines the application of many security and privacy controls. Source systems control user access, retention, and dissemination restrictions on the record level by data tagging. Data tagging is the process of indexing or labeling data individually, instead of only labelling data at the system or folder level. Records covered by this SORN may reside physically within the same platform or cloud computing environment, but are logically separated from each other through the data tagging process. ICE personnel would therefore only have access to the information for which they have a pre-established need to know.
Strong access controls and robust audit functions within the analytical systems ensure that ICE's use of the records is predicated on law enforcement, national security, immigration enforcement, and customs enforcement activities. A governance group composed of leadership from ICE Homeland Security Investigations (HSI) enforces this requirement, with oversight by ICE's legal and privacy offices.
This system of records ingests and aggregates data from a number of system and database interfaces that collect data for ICE's law enforcement, national security, immigration enforcement, and customs enforcement missions. ICE controls all data aggregated from these interfaces through a combination of data tagging, access control lists, and other technologies. These interfaces are covered by other federal agency, DHS, and ICE SORNs. Separate SORNs are appropriate because the data, purposes, and routine uses differ depending on the analytical interface or tool. ICE ensures that the appropriate retention, use, and sharing of this data is in line with the purpose of its original collection. Records available to users via other system interfaces are covered by these separate SORNs, which are customized to the purposes of those interfaces. For example, data available through an ingest from ICE's Investigative Case Management System (ICM) interface would be covered by the DHS/ICE-009 External Investigations SORN, 75 FR 404 (January 5, 2010).
The analytical data store ingests information either on a routine or ad hoc basis. Routine ingests are regular updates to datasets that originate from other government (typically ICE or DHS) data systems. Ad hoc ingests are user-driven ingests of particular data that may be relevant to a given user or group's investigative or analytical project in the analytical system. The nature of the data in ad hoc ingests varies. For example, data may be collected from commercial or public sources (
The analytical data store also contains metadata that is created by an ICE analytical system when it ingests data. ICE uses the metadata to apply access controls and other system rules (such as retention policies) to the contents of the central data store. The metadata also provides important contextual information about the date the information was added to the data store and the source system where the data originated.
Analytical systems covered by this SORN may also contain an index, which is a numerical and alphabetical list of every word or string of numbers/characters found in the system, with a reference to the electronic location where the corresponding source record is stored. Analytical systems use indexes to conduct searches, identify relationships and links between records and data, and generate visualizations for analytic purposes.
ICE analytical systems also ingest external information from non-federal entities, including state and local law
This SORN also covers tips submitted to ICE via email, online forms on the ICE website, or by calling an ICE tip line phone number. These tips are created electronically using an ICE-wide tip line interface or may be manually entered by ICE analysts. The tips are input directly into ICE analytical systems and are vetted using analytical tools. Once ICE analysts adjudicate the tips for action, the tips will then be referred via the analytical system to the relevant ICE office or program and accessible to authorized users to conduct further investigation.
Users of an analytical tool or system may create visualizations, match records, or create analyses of large volumes of data through algorithmic processes. The end result of user efforts with an analytical tool, such as a map or list, is an analytical work product. Work products are considered intermediary records with access, use, and sharing restrictions tied to the underlying raw data that a system used to create the product. Analytical work products are destroyed upon verification of successful creation of the final document or file or when no longer needed for a business use, whichever is later. If a user deems the product to be pertinent to an investigation, it will then be incorporated into a final document or file as an investigative record and follow the case with which it was assigned.
Analytical products, information sharing, and user collaboration made possible in analytical systems may result in the creation of a lead to the field. These leads are actionable intelligence that require further investigation by ICE prior to agents or officers carrying out any law enforcement action. Analytical systems may distribute and track the outcomes of leads for reporting purposes.
Finally, as this SORN will replace the DHS/ICE-005 TTAR SORN, it will now provide notice for use of all data collected by ICE that is used in generating leads for, and otherwise supporting, investigations related to customs violations. These violations include trade-based money laundering, smuggling, commercial fraud, and other crimes within the jurisdiction of ICE. For example, ICE uses financial and law enforcement data to examine foreign trade data to identify anomalies in patterns of trade. Such anomalies can indicate import-export crimes that ICE is responsible for investigating. In addition, these anomalies, patterns, and relationships provide leads that may warrant investigation for violation of U.S. export laws and regulations.
ICE agents and criminal analysts use analytical systems for a variety of purposes: To conduct research that supports the production of law enforcement intelligence products; to provide lead information for investigative inquiry and follow-up; to support the enforcement and investigation of criminal and civil laws under ICE's jurisdiction, including those pertaining to customs violations; to identify potential criminal activity, immigration violations, and threats to homeland security; to share analytical capabilities within DHS and with domestic and foreign partners, as appropriate; to assist in the disruption of terrorist or other criminal activity; and to discover previously unknown connections among existing ICE investigations.
Consistent with DHS's information sharing mission, information stored in the DHS/ICE-018 Analytical Records system of records may be shared with other DHS components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/ICE may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
Additionally, DHS is issuing a Notice of Proposed Rulemaking to exempt this system of records from certain provisions of the Privacy Act elsewhere in the
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which federal government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, the Judicial Redress Act (JRA) provides covered persons with a statutory right to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
Below is the description of the DHS/ICE-018 Analytical Records system of records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
U.S. Department of Homeland Security (DHS)/Immigration and Customs Enforcement (ICE)-018 Analytical Records.
Classified, Unclassified, Law Enforcement Sensitive, and For Official Use Only.
Records are maintained either at the ICE Headquarters in Washington, DC and field offices, or designated cloud computing environments.
Assistant Director for Homeland Security Investigations Operational Technology and Cyber Division,
6 U.S.C. 236; 8 U.S.C. 1103 and 1105; 8 U.S.C. 1225(d)(3) and (d)(4)(A); 8 U.S.C. 1324a(e)(2)(C); 8 U.S.C. 1357; 8 U.S.C. 1360(b); 18 U.S.C. 541, 542, 545, and 554; 18 U.S.C. 1956, 1957, and
The purposes of ICE analytical systems are:
(a) To support ICE's collection, analysis, reporting, and distribution of law enforcement, customs, immigration, terrorism, intelligence, and homeland security information in support of ICE's mission;
(b) to produce investigative leads and other actionable information to ICE's law enforcement, customs, and immigration enforcement personnel and to other appropriate government agencies;
(c) to identify potential violations of U.S. criminal, civil, and administrative laws through search, aggregation, analysis, and visualization of raw data;
(d) to enhance the efficiency and effectiveness of the research and analysis process for DHS law enforcement, customs, immigration, and intelligence personnel through information technology tools that provide for advanced search and analysis of various datasets;
(e) to facilitate multi-jurisdictional cooperation and collaboration on investigations into transnational activities that violate criminal and civil laws pertaining to exportation of restricted materials, cargo safety and security, immigration, trafficking, trade, financial crimes, smuggling, and fraud;
(f) to support the operation of the agency's tip line and the collection, analysis, and action on information volunteered by the public and other sources concerning suspicious and potentially illegal activity; and
(g) to identify potential criminal activity, immigration violations, customs violations, and threats to homeland security; to uphold and enforce the law; and to ensure public safety.
Categories of individuals covered by this system include:
(1) Individuals identified in law enforcement, intelligence, crime, and incident reports (including financial reports under the Bank Secrecy Act and law enforcement bulletins) produced by DHS and other government agencies;
(2) individuals identified in U.S. passport, visa, border, immigration, and naturalization benefit data, including arrival and departure data;
(3) individuals identified in DHS law enforcement, licensing, and immigration records, including records associated with the ICE Student Exchange Visitor Program;
(4) individuals who, as importers, exporters, shippers, transporters, customs brokers, owners, purchasers, manufacturers, consignees, or agents thereof, participate in the import or export of goods to or from the United States or to or from nations with which the United States has entered an agreement to share trade information;
(5) individuals (
(6) individuals associated with law enforcement investigations or activities conducted by other federal, state, tribal, territorial, local or foreign agencies where there is a potential nexus to ICE's law enforcement, customs enforcement, and immigration enforcement responsibilities, or homeland security in general;
(7) individuals known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism;
(8) individuals involved in or associated with suspicious activities, threats, or other incidents reported by domestic and foreign government agencies, multinational or non-governmental organizations, critical infrastructure owners and operators, private sector entities and organizations, and individuals;
(9) individuals who are subjects of government screening lists or threat assessments, such as known or suspected Transnational Organized Criminal (TOC) gang members or associates;
(10) Specially Designated Nationals (SDN) as defined by 31 CFR 500.306 and individuals identified on other denied parties or screening lists; and
(11) ICE personnel or personnel from partner law enforcement agencies who are mentioned in significant incident reports that concern law enforcement operations, injuries to law enforcement personnel, or other significant incidents reported within ICE.
(1) Biographic and other identifying information, including names; dates of birth; places of birth; Social Security numbers (SSN); Tax Identification Numbers (TIN); Exporter Identification Numbers (EIN); passport information (number and country of issuance); citizenship; nationality; location and contact information (
(2) Biometric information, including facial images, iris images, fingerprints, and voice audio; and any unique numerical identifiers assigned to biometrics for administrative purposes;
(3) Financial data, including data reported pursuant to the Bank Secrecy Act (
(4) Licensing information related to applications by individuals or businesses to hold or retain a customs broker's license, operate a customs-bonded warehouse, or be a bonded carrier or bonded cartman;
(5) Trade analysis data, including trade identifier numbers (
(6) Location-related data, including address; geotags from metadata associated with other record categories collected; and geolocation information derived from authorized law enforcement activities, ICE-owned devices, witness accounts, or commercially available data;
(7) Various internal operational reports, including reports of significant incidents and operations; reports concerning prospective enforcement activity; reports of outcomes and dispositions of referred leads; requests for assistance from other law enforcement agencies; agency intelligence reports; and reports of third-agency visits to ICE detention facilities;
(8) Law enforcement records, including TECS subject records and investigative records related to an ICE or
(9) Reports of fines, penalties, forfeitures, and seizure incidents;
(10) Financial and communication records obtained during the course of an ICE criminal investigation. These records can include lawfully obtained call transactions, call content, text transactions, text content, email transactions, email content, and financial wire transactions;
(11) Continued presence parole application records;
(12) Open source information—news articles or other data available to the public on the internet or in public records, including content from the dark net and publicly available information from social media;
(13) Commercially available data—public and proprietary records available for a subscription;
(14) Cargo and border crossing data—inbound/outbound shipment records and border crossing information;
(15) Criminal information, including lookouts, warrants, criminal history records, and other civil or criminal investigative information provided by other law enforcement agencies;
(16) Information from foreign governments or multinational organizations such as INTERPOL or Europol—including criminal history; immigration data; passenger, vehicle, vessel entry/exit data; passport information; vehicle, vessel, and licensing records; shipment records; telephone records; intelligence reports; investigative leads and requests; and wanted persons notices, warrants, and lookouts;
(17) Information related to participation in a student exchange visitor program, including education and training; school information; sponsor information; program status and activities; placement information; and any administrative or adjudicative actions related to the program;
(18) Investigative leads, analytical work products, and finished intelligence reports from ICE, DHS, or other agencies;
(19) Information or evidence seized or otherwise lawfully obtained during the course of an ICE investigation, including business records, third-agency records, public records (
(20) Tips concerning illegal or suspicious activity from the public and other law enforcement agencies; and
(21) Tip data concerning child exploitation violations, such as the biographical data of the suspect or the suspect's online identity information (
(22) Other information collected during the course of vetting a tip from sources such as government databases, open sources, and commercially-available data, as previously described.
Records are obtained from individuals via tips to the ICE tip line or other public interfaces; other DHS components; U.S. Department of Commerce; U.S. Department of the Treasury; U.S. Department of State; other federal, state, and local law enforcement agencies; foreign governments pursuant to international agreements or arrangements; international entities; financial institutions; transportation companies; manufacturers; customs brokers; organizations participating in free trade zones; port authorities; and commercially and publicly available data sources. Current federal interfaces with ICE analytical systems include records covered by the following SORNs:
• DHS/ICE-001 Student Exchange Visitor Information System (SEVIS), 75 FR 412 (January 5, 2010);
• DHS/ICE-004 Bond Management Information System (BMIS), 85 FR 64515 (October 13, 2020);
• DHS/ICE-006 Intelligence Records System (IIRS), 75 FR 9233 (March 1, 2010);
• DHS/ICE-007 Criminal History and Immigration Verification (CHIVe) System of Records, 83 FR 20844 (May 8, 2018);
• DHS/ICE-008 Search Arrest and Seizure Records, 73 FR 74732 (December 9, 2008);
• DHS/ICE-009 External Investigations, 75 FR 404 (January 5, 2010);
• DHS/ICE-011 Criminal Arrest Records and Immigration Enforcement Records (CARIER) System of Records, 81 FR 72080 (October 19, 2016);
• FinCEN .003—Bank Secrecy Act Reports System, 79 FR 20969 (April 14, 2014);
• DHS/CBP-006 Automated Targeting System, 77 FR 30297 (May 22, 2012);
• DHS/CBP-020 Export Information System, 80 FR 53181 (September 2, 2015);
• JUSTICE/FBI-001 National Crime Information Center (NCIC), 84 FR 47533 (September 10, 2019);
• DHS/ALL-041 External Biometric Records (EBR), 83 FR 17829 (April 24, 2018).
SORNs ingested into analytical systems at ICE are subject to change based on mission need and requirements of both ICE and system owners.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including the U.S. Attorneys Offices, or other federal agencies conducting litigation or proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity, only when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of the system of records; (2) DHS has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DHS (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
F. To another federal agency or federal entity, when DHS determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
I. To federal, state, local, tribal, territorial, foreign or international agencies, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual; the issuance, grant, renewal, suspension, or revocation of a security clearance, license, contract, grant, or other benefit; or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security.
J. To appropriate federal, state, local, tribal, territorial, or foreign government agencies or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, license, or treaty when DHS determines that the information would assist in the enforcement of civil, criminal, or regulatory laws.
K. To federal, state, local, tribal, territorial, foreign government agencies, or other entities or individuals, or through established liaison channels to selected foreign governments, in order to provide intelligence, counterintelligence, or other information for the purposes of national security, intelligence, counterintelligence, or antiterrorism activities authorized by U.S. law, executive order, or other applicable national security directive.
L. To federal, state, local, tribal, territorial, or foreign government agencies or organizations, or international organizations, lawfully engaged in collecting law enforcement intelligence, whether civil or criminal, to enable these entities to carry out their law enforcement responsibilities, including the collection of law enforcement intelligence.
M. To international, foreign, intergovernmental, and multinational government agencies, authorities, and organizations in accordance with law and formal or informal international arrangements.
N. To a court, magistrate, administrative tribunal, opposing counsel, parties, and witnesses in the course of a civil, criminal or administrative proceeding before a court or adjudicative body when DHS determines that the use of such records is relevant and necessary to the litigation or the proceeding provided that in each case, DHS determines that disclosure of the information to the recipient is a use of the information that is compatible with the purpose for which it was collected.
O. To federal, state, local, tribal, territorial, or foreign government agencies, as well as to other individuals and organizations during the course of an investigation by DHS or the processing of a matter under DHS's jurisdiction, or during a proceeding within the purview of the immigration and nationality laws, when DHS deems that such disclosure is necessary to carry out its functions and statutory mandates or to elicit information required by DHS to carry out its functions and statutory mandates.
P. To federal, state, local, tribal, territorial, international, or foreign government agencies or entities for the purpose of consulting with those agencies or entities:
(1) To assist in making a determination regarding redress for an individual in connection with the operations of a DHS component or program;
(2) To verify the identity of an individual seeking redress in connection with the operations of a DHS component or program; or to verify the accuracy of information submitted by an individual who has requested redress on behalf of another individual.
Q. To an organization or individual in either the public or private sector, either foreign or domestic, to the extent necessary to prevent immediate loss of life, serious bodily injury, or destruction of property.
R. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the officer making the disclosure.
S. To a former employee of DHS for the purpose of responding to an official inquiry by federal, state, local, tribal, or territorial government agencies or professional licensing authorities; or facilitating communications with a former employee that may be necessary for personnel-related matters or other official purposes when DHS requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
T. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations, with the approval of the Chief Privacy Officer, when DHS is aware of a need to use relevant data, that relate to the purpose(s) stated in this SORN, for purposes of testing new technology.
U. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or when disclosure is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the
DHS/ICE stores records in this system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media within secure access-controlled facilities.
DHS/ICE may retrieve records by any of the personal identifiers stored in the system including name, business address, home address, importer ID, exporter ID, broker ID, manufacturer ID, Social Security number, trade and tax identifying numbers, passport number, or account number. Records may also be retrieved by non-personal information such as transaction date, entity or institution name, description of goods, value of transactions, and other information.
The retention period for information contained in analytical systems varies depending on the type of data. Routinely ingested data is retained in accordance with the record retention schedule of the source system. Analytical products are considered intermediary records which are destroyed upon verification of successful creation of the final document or file (such as a generated lead), or when no longer needed for a business use, whichever is later. Data uploaded to analytical systems in an ad hoc manner is associated with a case file number, to the extent possible, and retained consistent with the retention of the case file. Records associated with an ICE case file, either ad hoc uploads or designated analytical work products, are active until the case closes, and then will be retained for 20 years in accordance with legacy customs schedule N1-36-86-1-161.3 (inv 7B) from the Department of Treasury. Records associated with cases are retained for evidentiary purposes, to allow ICE to link findings to other cases, and to ensure ICE has proper auditing and oversight of its systems. ICE will develop and submit an updated schedule for investigative records to the National Archives and Records Administration (NARA) for approval. When there is no case file number, ICE tags the data as either associated with the ICE or DHS SORN related to the original collection of the information or with a retention schedule of 20 years. ICE retains system metadata for the same length of time as the record or data element they originate from or describe.
Currently, the retention period for data maintained under the DHS/ICE-005 TTAR SORN is maintained in accordance with the legacy retention schedule N1-567-09-003. Case related records under this schedule will remain active until the end of the calendar year in which a case closes, after which it will be retained for an additional ten years, and then deleted. All other bulk financial and trade data ingested is archived at the end of the calendar year of receipt and destroyed three years thereafter. ICE intends to request NARA approval to retire the legacy retention schedule and proposes to retain all financial and trade data for ten years.
This system of records will also be the official repository for tip information at ICE. The tip line application will feed records it creates directly into an analytical central storage environment. ICE analysts may manually enter other tip information into the environment. Currently tip records are unscheduled. ICE will include tip records in its submission to NARA for a new investigative records schedule. ICE will propose that standard tip records be retained for ten years from the date of the tip. Tip records concerning child exploitation crimes will be retained for 75 years in line with retention schedule N1-567-10-014.
DHS/ICE safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. DHS/ICE has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act, and the Judicial Redress Act if applicable, because it is a law enforcement system. However, DHS/ICE will consider individual requests to determine whether or not information may be released. Thus, individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and ICE Freedom of Information Act (FOIA) Officer whose contact information can be found at
When an individual is seeking records about himself or herself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify his/her identity, meaning that the individual must provide his/her full name, current address, and date and place of birth. The individual must sign the request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, an individual may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• Explain why he or she believes the Department would have information being requested;
• Identify which component(s) of the Department he or she believes may have the information;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records;
If the request is seeking records pertaining to another living individual, the request must include an authorization from the individual whose record is being requested, authorizing the release to the requester.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered JRA records, individuals may make a request for amendment or correction of a record of the Department about the individual by writing directly to the Department component that maintains the record, unless the record is not subject to amendment or correction. The request should identify each particular record in question, state the amendment or correction desired, and state why the individual believes that the record is not accurate, relevant, timely, or complete. The individual may submit any documentation that would be helpful. If the individual believes that the same record is in more than one system of records, the request should state that and be addressed to each component that maintains a system of records containing the record.
See “Record Access Procedures” above.
The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from the following provisions of the Privacy Act: 552a(c)(3), (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system is exempt from the following provisions of the Privacy Act, subject to the limitations set forth in those subsections: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H); and (f). When an analytical system receives a record from another system exempted in that source system under 5 U.S.C. 552a(j)(2), ICE will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions set forth here.
DHS/ICE-005 Trade Transparency Analysis and Research, 79 FR 71112 (December 1, 2014); DHS/ICE-016 FALCON Search and Analysis, 82 FR 20905 (May 4, 2017).
National Park Service, Interior.
Notice.
Fort Lewis College, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice who wish to claim these cultural items should submit a written request to Fort Lewis College, via the NAGPRA Liaison. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice who wish to claim these cultural items should submit a written request with information in support of the claim to Fort Lewis College, via the NAGPRA Liaison at the address in this notice by April 21, 2021.
Kathleen Fine-Dare, Ph.D., NAGPRA Liaison, Fort Lewis College, 1000 Rim Drive, Durango, CO 81301, telephone (970) 247-7438, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of Fort Lewis College, Durango, CO, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
All 248 items in this notice were taken from Ancestral Puebloan burials located in La Plata County, CO (164 items), Montezuma County, CO (83 items), and Dolores County, CO (one item), and they belong to either the Homer Root Ledger Collection (89 items) or the Charles McClain Collection (159 items). (The Root and McClain collections also contain items from New Mexico and Arizona, but this notice only concerns objects located in the three Colorado counties.) Both collections are currently stored in the Fort Lewis College Center of Southwest Studies curation facility.
The Homer Root Ledger Collection is comprised of items donated to or acquired by the Fort Lewis College Museum. Homer Emerson Root (1896-1977) was a Michigan-born and Colorado-raised Methodist minister who was appointed Curator of the Fort Lewis College Museum after retiring from the ministry in 1953. From 1958-1968, he kept five detailed and elaborately detailed ledger books in which museum (and other) items were skillfully rendered in ink and oil color. These items were accompanied by catalog cards. A self-trained archeologist and artist, Root directed FLC archeological field schools in the 1960s. Root had strong connections with avocational archeologists in the region who often donated objects they had acquired to the College Museum.
The items in the Charles McLain Collection were collected prior to 1970. They were accessioned in 2001 and 2008, following two donations from McClain's daughters, Katherine McLain Bergfield and Margaret “Peggy” Fearing. The donations were accompanied by McLain's personal, handwritten catalog cards, which usually included documentation on the funerary context of the vessels and vague locational information. Many of the items in the McLain collection were amassed through Charles McClain's extensive collecting activities. Two of the items identified as unassociated funerary objects were acquired through a trade with ceramicist Norman “Ted” Oppelt.
In 1960, one item was removed from a burial during the construction of St. Paul's Lutheran Church, located at 2611 Junction Street, Durango, CO. The one item is a jar.
Around 1961, five items were removed from burials at multiple archeological sites on Ewing Mesa by
Around 1962, one item was removed (likely by Zeke Flora) from a burial at a site known as Ignacio 12:10, located just south of Animas City Mountain, Durango, CO. The one item is a bowl.
Around 1962, one item was removed by Zeke Flora from the burial of a juvenile individual at a site recorded as Ignacio 12:23, whose exact location is unknown today. The one item is a bowl.
Around 1964, two items were removed by J.C. Miller from an unidentified site near Indian Creek, located 10 miles south of Durango and west of the Animas River. The items were found lying near the cranium of an extended adult individual interred in a refuse midden. The two items are one jar and one ceramic pipe.
Around 1964, one item was removed by J.C. Miller from an Ancestral Puebloan burial at an unidentified site located on a ridge west of Marvel. The one item is an olla.
Sometime during 1964-65, 13 items were removed by J.C. Miller from burials at multiple archeological sites in the Blue Mesa area, located five miles south of Durango, CO. Some items were recorded originally as having been associated with additional items that were catalogued but have not yet been located. Others were associated with each other in extended burial sites that were covered by cobblestones and then by domestic refuse. The 13 items are six bowls, three jars, one ladle, one hammerstone, one knife, and one pitcher.
In the summer of 1966, 27 cultural items were removed from burials at the Sacred Ridge site (5MT9399), southwest of Durango, CO, by Homer Root while directing a Fort Lewis College archeological field school. The site lay in Ridges Basin, a ranch owned by Mike Bodo where, for many years, the public could search for fossils, stones, and “Indian relics.” Those activities had resulted in the destruction of archeological graves, structures, and trash mounds. After 1966, the site was subject to multiple archeological testing activities. Today, it lies beneath Lake Nighthorse as a result of the Animas-La Plata project. The 27 items are one metate, 11 bowls, eight jars, six pitchers, and one effigy vessel.
In 1967, 12 items were removed from burials at the Pasture Ruin sites (5LP177, 5LP179, and 5LP243) by Homer Root while directing a Fort Lewis College archeological field school conducting salvage work at the Bodo Ranch prior to plowing by landowner Mike Bodo. The 12 items are three bowls, four pitchers, three jars, one “implement” made of non-human bone, and one sandstone burial slab.
Sometime before 1970, 65 items were collected from 17 burials located on Blue Mesa. The 65 items are 21 jars, 28 bowls, 14 pitchers, and two effigy vessels.
Sometime before 1970, 31 items were collected from burials on the private property of C.A. Brown Wild Horse (Florida) Mesa, located in Durango, CO. The 31 items are seven pitchers, 12 bowls, eight jars, one seed jar, one effigy vessel, one lid, and one pipe.
Sometime before 1970, four items were disinterred from adult burials located in the Marvel area of western La Plata County. The four items are two pipes and two bowls.
Sometime before 1970, one item was disinterred from a burial at the Bodo Point site. The one item is a bowl.
Around September of 1936, three items were removed from adult burials at the Yellow Jacket complex (5MT5) by Homer Root. The three items are one mortuary slab and two bowls.
At an unknown date (but recorded in 1961 and 1964), 17 items were removed by Homer Root from adult burials at an unidentified site within the Herren Farm Complex, located on Stanley Ranch. The 17 items are 10 stones (including hematite, copper ore, and agate), two shaped sandstones, one river cobble ground stone, three bowls, and one jar.
At an unknown date (but recorded in 1964), four items were removed from adult burials at an unidentified site located on Stanley Ranch. The four items are two bowls, one jar, and one stone slab of river cobble.
Around 1964, one item was removed by a rancher while plowing his field in the Goodman Point area. (Although the rancher found a second mug at the same time, the location of that mug is unknown.) The one item is a mug.
Sometime before 1970, 53 items were removed from burials on the property of Warren Griffith, located at the head of Yellow Jacket Canyon. The 53 items are 23 bowls, nine ladles, one canteen, four mugs, 10 jars, four kiva jars, one effigy vessel, and one pitcher.
Sometime before 1970, five items were removed from adult burials at the Herren Farms Site Complex (5MT2516). The site was situated on the property of Ed Herren, located at the head of Ruin Canyon, near Ackmen. The five items are two mugs, one bowl, one jar, and one canteen.
In 1937, one item was removed by National Youth Administration workers from an Ancestral Puebloan adult burial located southeast of the Sago School site. The item was given to the Durango Public Library by Lola Sanders and was later donated to Fort Lewis College by Helen Sloan Daniels. The one item is a mug.
The cultural affiliation of the unassociated funerary objects was determined through the following lines of evidence: geographical, biological (drawings were made of human remains found with the objects, but the whereabouts of the remains are unknown), kinship, archeological, folklore, oral tradition, historical, and expert opinion. This decision was informed by information gathered from multiple rounds of face-to-face and written tribal consultations that took place in 2018, 2019, and 2020; artifact analysis; provenance research; and a thorough review of archeological, ethnographic, and oral historical literature. Ancestral Puebloan ceramic typologies helped to identify technological traditions, as well as chronological and geographical attributes of ceramic manufacture.
Officials of the Fort Lewis College, have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 248 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from specific burial sites of Native American individuals.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Pueblo of Acoma, New Mexico.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice who wish to claim these cultural items should submit a written request with information in support of the claim to Kathleen S. Fine-Dare, Ph.D., Tribal Liaison, Fort Lewis College, 1000 Rim
Fort Lewis College, via the NAGPRA Liaison, is responsible for notifying the Pueblo of Acoma, New Mexico that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that on March 16, 2021, the presiding administrative law judge (“ALJ”) issued an Initial Determination on Violation of Section 337. The ALJ also issued a Recommended Determination on remedy and bonding should a violation be found in the above-captioned investigation. The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation. This notice is soliciting comments from the public only.
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 204-3042. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
Parties are to file public interest submissions pursuant to 19 CFR 210.50(a)(4). Section 337 of the Tariff Act of 1930 provides that, if the Commission finds a violation, it shall exclude the articles concerned from the United States:
unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such articles should not be excluded from entry.
The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation, specifically: a limited exclusion order directed to certain mobile devices with multifunction emulators imported, sold for importation, and/or sold after importation by respondents Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively, Samsung); and cease and desist orders directed to Samsung.
The Commission is interested in further development of the record on the public interest in this investigation. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the ALJ's Recommended Determination on Remedy and Bonding issued in this investigation on March 16, 2021. Comments should address whether issuance of the recommended remedial orders in this investigation, should the Commission find a violation, 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 recommended remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended 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 recommended orders within a commercially reasonable time; and
(v) explain how the recommended orders would impact consumers in the United States.
Written submissions must be filed no later than by close of business on April 15, 2021.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the investigation number (“Inv. No. 337-TA-1170”) 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 in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
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 InMode Ltd. and Invasix Inc. d/b/a InMode on March 16, 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 skin rejuvenation devices, components thereof, and products containing the same. The complainant names as respondents: ILOODA Co., Ltd. of Korea; and Cutera, Inc. of Brisbane, CA. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders, and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3538”) 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.
By order of the Commission.
On June 12, 2017, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Lawrence E. Stewart, M.D. (hereinafter, Respondent), of Summit, Mississippi. Order to Show Cause (hereinafter, OSC), at 1. The OSC proposed the denial of Respondent's application for a DEA Certificate of Registration because Respondent had committed acts that rendered his registration with DEA inconsistent with the public interest.
On July 27, 2017, Respondent submitted a timely written statement in response to the OSC waiving his right to a hearing. Request for Final Agency Action Exhibit (hereinafter, RFAAX) 3. In lieu of a hearing, Respondent submitted a Statement of Position on the Facts and Law (hereinafter, Statement) regarding the matters alleged in the OSC.
The Government filed a Request for Final Agency Action (hereinafter, RFAA) on March 25, 2019. In its RFAA, the Government stated that Respondent is no longer licensed to practice medicine in Mississippi and provided documentation from the Mississippi State Board of Medical Licensure to support this claim. RFAA at 2;
The Government is not required to issue an amended OSC to notice an allegation of a registrant's lack of state authority that arises during the pendency of a proceeding regarding a DEA registration.
I make the following findings of fact based on the record before me.
On January 25, 2017, Respondent filed an application (Application Control No. H17068500C) for a DEA Certificate of Registration as a practitioner in schedules II-V, with a proposed registered location at 1050 Daisy Lane, Summit, Mississippi 39666. RFAAX 1.
At the time Respondent applied for a DEA registration, he held a Mississippi medical license. RFAAX 7, Appendix A (Mississippi State Board of Medical Licensure Determination and Order). On May 18, 2017, the Mississippi State Board of Medical Licensure (hereinafter, the Board) issued a Decision and Order suspending Respondent's medical license.
On March 19, 2018, the Board found that Respondent had failed to comply with an MPHP requirement to abstain from alcohol. RFAAX 7, Appendix B (Board Order of Prohibition). The Board, therefore, issued an Order of Prohibition prohibiting Respondent from practicing medicine in Mississippi “until such time as the Board and MPHP determines that [Respondent] is able to return to the practice of medicine.”
According to Mississippi's online records, of which I take official notice, Respondent's license is expired.
Accordingly, I find that Registrant currently is not licensed to engage in the practice of medicine in Mississippi, the State in which Registrant is registered with the DEA.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA) “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined the term “practitioner” to mean “a physician . . . or other person licensed, registered, or otherwise
According to Mississippi statute, “except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance in Schedule II . . . may be dispensed without the written valid prescription of a practitioner,” and “except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in Schedule III or IV . . . shall not be dispensed without a written or oral valid prescription of a practitioner.” Miss. Code Ann. § 41-29-137(a)(1) and (b) (West 2020). Further, “a practitioner” is defined as “a physician, dentist, veterinarian, scientific investigator, optometrist . . . or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state.” Miss. Code Ann. § 41-29-105(y)(1) (West 2020). Mississippi regulations define a “physician” to be “any person licensed to practice medicine, osteopathic medicine or podiatric medicine in the state of Mississippi.” 30-2640 Miss. Code R. § 1.2(C). The regulations further state that “`prescriptive authority' means the legal authority of a professional licensed to practice in the state of Mississippi who prescribes controlled substances and is registered with the U.S. Drug Enforcement Administration in compliance with Title 21 CFR, Part 1301 Food and Drugs.” 30-2640 Miss. Code R. § 1.2(F).
Here, the undisputed evidence in the record is that Respondent currently lacks authority to practice medicine in Mississippi. As already discussed, a physician must be licensed to practice medicine in order to have prescriptive authority for a controlled substance in Mississippi. Thus, because Respondent lacks authority to practice medicine in Mississippi and, therefore, is not authorized to prescribe controlled substances in Mississippi, Respondent is not eligible to receive a DEA registration. Accordingly, I will order that Respondent's application for a DEA registration be denied.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby order that the pending application for a Certificate of Registration, Control Number H17068500C, submitted by Lawrence E. Stewart, M.D., is denied, as well as any other pending application of Lawrence E. Stewart for additional registration in Mississippi. This Order is effective April 21, 2021.
On March 11, 2021, the Department of Justice lodged a proposed Modified Consent Decree with the United States District Court for the Western District of Texas in the lawsuit entitled
The original consent decree requires the San Antonio Water System (SAWS) to implement remedial measures, including construction project, to alleviate capacity constraints on the SAWS sewer system. The proposed Modified Consent Decree extends the deadline for SAWS to complete two sewer main replacement construction projects by less than 10 months. There are no other changes from the original consent decree.
The publication of this notice opens a period for public comment on the proposed Modified Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $2.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Employee Benefits Security Administration, Labor.
Notice of proposed exemption.
This document provides notice of the pendency before the Department of Labor (the Department) of a proposed individual exemption from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or
If granted, the exemption will be effective as of the date the grant notice is published in the
All written comments and requests for a hearing should be sent to the Employee Benefits Security Administration (EBSA), Office of Exemption Determinations, Attention: Application Nos. L-12000 and L-12001 via email to
Mr. Joseph Brennan of the Department, telephone (202) 693-8456. (This is not a toll-free number.)
In light of the current circumstances surrounding the COVID-19 pandemic caused by the novel coronavirus which may result in disruption to the receipt of comments by U.S. Mail or hand delivery/courier, persons are encouraged to submit all comments electronically and not to follow with paper copies. Comments should state the nature of the person's interest in the proposed exemption and the manner in which the person would be adversely affected by the exemption, if granted. Any person who may be adversely affected by an exemption can request a hearing on the exemption. A request for a hearing must state: (1) The name, address, telephone number, and email address of the person making the request; (2) the nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption; and (3) a statement of the issues to be addressed and a general description of the evidence to be presented at the hearing. The Department will grant a request for a hearing made in accordance with the requirements above where a hearing is necessary to fully explore material factual issues identified by the person requesting the hearing. A notice of such hearing shall be published by the Department in the
The Department is considering granting an exemption under the authority of 408(a) of the Act (or ERISA), in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 46637, 66644, October 27, 2011). If the exemption is granted, the restrictions of sections 406(a)(1)(A), 406(a)(1)(D) and 406(b)(1) and 406(b)(2) of the Act shall not apply to: (a) The sale (the Sale) by the Electrical Joint Apprenticeship and Training Trust (the EJAT Trust) of 5.11 acres of unimproved real property to the Electrical Insurance Trustees Insurance Fund (the EIT Fund), a party in interest with respect to the EJAT Trust; and (b) the EIT Fund's granting of a right of first offer (the Right of First Offer) to the EJAT Trust, for the purchase back of the Property by the EJAT Trust from the EIT Fund, provided certain conditions are met.
1.
2.
The EJAT Trust employees and apprentices are eligible to participate in the EIT Fund and the Related Plans after meeting certain eligibility requirements. As a result, an estimated 95% of EJAT Trust apprentices, at any given time, are also participants in the EIT Fund and the Related Plans. Additionally, although the EIT Fund Board and EJAT Trust Board are distinct entities, they share one common member. The Applicants represent that this common board member will recuse himself from all aspects of the decision-making process relating to the Sale transaction described herein.
3.
4.
In February 2016, Savills issued an office space scenario analysis of office rental space in the downtown Chicago business district, which included the projected costs and expansion opportunities conducive to an on-site medical clinic. Based on Savills' analysis, the EIT Board concluded that the future cost of renting office space in downtown Chicago would be exceedingly expensive, offer limited opportunity for expansion, and be inconvenient and expensive to participants and beneficiaries. In April 2018, Savills conducted a follow-up study assessing possible buildings for sale in the area. Savills concluded that available buildings for sale in the area did not meet the EIT Fund's needs and that purchasing an existing building would be expensive because of the extensive work that would be required to customize any existing space to the EIT Fund's specific and unique needs for offices, as well as an onsite medical clinic.
5.
6.
In connection with the proposed transaction, the Plans will enter into a Real Estate Purchase Agreement (the Purchase Agreement) that will govern the terms of the Sale. The Purchase Agreement provides that the EIT Fund is not obligated to close on the Sale unless, by the Closing Date, the EIT Fund has obtained all development approvals required to construct the EIT Fund Facility and the access road, including approval by the Village of Aslip of the proposed design of the EIT Fund Facility, and approval for the construction of an easement access road necessary to make the Property accessible to W 115th Street.
The Purchase Agreement also provides that the EIT Fund Independent Fiduciary may exercise the EIT Fund's absolute unconditional right to terminate the Sale through the end of an “inspection period,” which ends 60 days after the Department's publication of a notice granting this exemption. Thereafter, until the closing of the Sale, the Purchase Agreement provides the EIT Fund with an absolute right to terminate the Sale if the EIT Fund is unable to obtain the development approvals necessary to construct the EIT Fund Facility and access road.
7.
8.
9.
The Department notes that the EJAT Trust's re-purchase of the Property would constitute a prohibited transaction that is outside the scope of this exemption. If the EJAT Trust seeks to re-purchase the Property, the parties may submit an exemption application, and the Department will assess the merits of the proposed transaction.
10.
Shumaker states that it understands, acknowledges, and accepts its duties and responsibilities under ERISA in acting as the EJAT Trust Independent Fiduciary, and that it does not have any past or ongoing relationship with the EJAT Trust. Shumaker also states that the total revenue received from the EJAT Trust in connection with its engagement as Independent Fiduciary with respect to the Sale is less than 0.02% of Shumaker's gross revenue for the 2019 income tax year.
As Independent Fiduciary to the EJAT Trust, Shumaker must prudently: (a) Represent the EJAT Trust's interests for all purposes with respect to the Sale; (b) determine that the Sale is in the interests of, and protective of, the EJAT Trust and its participants and beneficiaries; (c) review and approve the terms and conditions of the Sale; (d) engage a qualified independent appraiser (the EJAT Trust Independent Appraiser) for the purpose of valuing the Property in connection with the Sale, and ensure the independence of the appraiser; (e) review the independent appraisal report completed by the EJAT Trust Independent Appraiser (the EJAT Trust Independent Appraisal Report) to confirm that the underlying methodology is reasonable and accurate and that the valuation of the Property has been reasonably derived; (f) ensure that the EJAT Independent Appraiser renders an updated fair market valuation of the Property as of the date of the Sale; (g) determine whether it is prudent for the EJAT Trust to proceed with the Sale; and (h) ensure that it has not and will not enter into any agreement or instrument that violates section 410 of ERISA or section 2509.75-4 of the Department's regulations.
11.
Wagner states that it understands, acknowledges, and accepts its duties and responsibilities under ERISA in acting as the EIT Fund Independent Fiduciary, and that it does not have any past or ongoing relationship with the EIT Fund. Wagner also states that the percentage of its current revenue that is derived from any party in interest involved in the Sale is 0.55%.
As the EIT Fund Independent Fiduciary, Wagner must prudently: (a) Represent the EIT Fund's interests for all purposes with respect to the Sale; (b) determine that the Sale is in the interests of, and protective of, the EIT Fund and its participants and beneficiaries; (c) review and approve the terms and conditions of the Sale; (d) engage a qualified independent appraiser (the EIT Independent Appraiser) for the purpose of valuing the Property in connection with the Sale, and ensure the independence of the appraiser; (e) review the independent appraisal report completed by the EIT Fund Independent Appraiser (the EIT Fund Independent Appraisal Report) to confirm that the underlying methodology is reasonable and accurate and that the valuation of the Property has been reasonably derived; (f) ensure that the EIT Fund Independent Appraiser renders an updated fair market valuation of the Property as of the date of the Sale; (g) determine whether it is prudent for the EIT Fund to proceed with the Sale; and (h) ensure that it has not and will not enter into any agreement or instrument that violates section 410 of ERISA or section 2509.75-4 of the Department's regulations. Additionally, not later than 90 days after the Sale is completed, Wagner must submit a written statement to the Department documenting that the Sale has met all of the requirements of this exemption.
12.
Realty states that its fee for appraisal services provided in connection with the Sale represents less than 0.5% of its annual revenues for 2014 and 2015. Realty represents that it has no present or prospective interest in the Property, that it has no personal interest with respect to the parties involved in the Sale, and that its engagement as EJAT Independent Appraiser is not contingent upon developing or reporting predetermined results. Realty further represents that the compensation it receives as the EJAT Trust Independent Appraiser is not contingent upon reporting a predetermined value, a direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of the appraisal.
Using the Sales Comparison Approach to valuation, Realty valued the Property at $725,000, as of February 14, 2020. In preparing the EJAT Trust Independent Appraisal Report, Realty represents that it physically inspected the Property and researched appropriate market data, and that its appraisal was conducted in full conformity with professional appraisal standards and USPAP.
13.
Colliers represents that it has no present or prospective interest in the Property, and no personal interest with respect to the parties involved. Colliers further represents that it is not biased with respect to the Property or to the parties involved with this assignment, and that its engagement and compensation was not contingent upon developing or reporting predetermined results. Colliers represents that its fee for appraisal services provided in connection with the Sale represents less than 0.5% of its annual revenues for 2014 and 2015.
Colliers states that it conducted an on-site physical inspection of the Property and analyzed regional and local area economic profiles including employment, population, household income, and real estate trends. Colliers represents that it assessed the general quality and condition, and emerging development trends for the real estate market. Colliers further represents that it conducted a Highest and Best Use analysis and considered legal, locational, physical and financial feasibility characteristics of the Property. Colliers states that it confirmed and analyzed financial features of the Property, including potential entitlement issues, and tax and assessment records. Colliers represents that its selection of valuation methods was based on the identifications required in USPAP relating to the intended use, intended users, definition and date of value, relevant property characteristics and assignment conditions. On July 15, 2020, Colliers completed an addendum to its appraisal report (the Addendum) in which it waived its rights under a liability cap that was previously included in its engagement agreement with the EIT Fund. In the Addendum, Collier affirmed that the value of the Property is at least $710,000, and that its appraisal was prepared in full conformity with professional appraisal standards and USPAP.
14.
15.
Shumaker states that the proximity of the Property to the EJAT Trust Training Facility will allow for the creation of an electrical industry campus which will benefit the EJAT Trust's participants and beneficiaries. In this regard, EJAT Trust participants will benefit from the ease and accessibility of a campus arrangement in which they will have access to the EIT Fund offices, and a possible on-site medical clinic, while pursuing their training and education. Shumaker notes that presently the EIT Fund offices are located in downtown Chicago, which imposes inconvenience and unnecessary costs on the EJAT Trust participants and beneficiaries.
Shumaker states that the Fund will receive $710,000 for the Property, which in Shumaker's judgement represents that the transaction is as favorable to the EJAT Trust as the transaction that would have occurred in an arm's length transaction between independent and unrelated parties, each of whom had full knowledge of the relevant facts and were under no compulsion to buy or sell. Shumaker further states that the Sale presents an opportunity for the EJAT Trust to diversify its assets through the sale of an unused parcel of real estate for cash. Shumaker notes that the Property is a nonworking asset, and that the EJAT Trust does not consider it to be a long-term investment or strategic reserve necessary for future expansion. Shumaker states that the Sale provides the EJAT Trust with the ability to use the cash proceeds from the Sale to enhance the value of the EJAT Trust Training Facility, for the benefit of the
Shumaker notes that because the Property is zoned for general manufacturing and processing activities, the marketing of the Property to unrelated buyers for an unknown purpose may be detrimental to the value of the Whole Parcel, and may interfere with the EJAT Trust's use and enjoyment of the Whole Parcel in the future.
Shumaker states that, to further ensure the protection of the EJAT Trust and its participants and beneficiaries, it will continue to monitor the Sale, enforce the final terms of the Sale, and take whatever actions are necessary to protect the interests of the EJAT Trust's participants and beneficiaries through the closing of the Sale.
Finally, as a condition of the exemption, Shumaker may not enter into, and has not entered into, any agreement, arrangement or understanding in connection with the Sale that indemnifies Shumaker, in whole or in part, or waives any liability for negligence by Shumaker or for failing to adhere to state or federal law. In addition, Realty may not enter into, and has not entered into, any agreement, arrangement or understanding in connection with the Sale that indemnifies Realty, in whole or in part, or waives any liability for negligence by Realty or for failure to adhere to professional appraisal standards.
16.
Wagner states that the Property functionally meets the EIT Fund's needs, as it is large enough to construct an EIT Fund Office with sufficient space for a Board Room, conference room, large reception areas, and an onsite medical clinic. Wagner further states that the Property is accessible for a significant number of EIT Fund participants and beneficiaries. In this regard, Wagner notes that the EIT Fund conducted a proximity analysis in October of 2019 which found that over 42% of current EIT Fund participants and beneficiaries live within a 15-mile radius of the Property.
Wagner states that relocating the EIT Fund's office to the Property is cost-effective and creates synergy by establishing a campus of related services for EIT Fund participants. In this regard, Wagner notes that an estimated 95% of apprentices in the EJAT Trust, at any given time, are also participants in the EIT Fund and the Related Plans. In addition, Wagner states that locating the EIT Fund Office on the Property would promote the visibility and publicity of the EIT Fund Office's services, as well as the EJAT Trust's training programs. Wagner further notes that the Property is sufficient in size to provide ample free parking for EIT Fund employees and EIT Fund participants and beneficiaries, and is conveniently located close to major highways.
With respect to the Property, Wagner states that, the location adjacent to the EJAT Trust Training Facility will provide enhanced value for the EIT Fund's participants and beneficiaries. Wagner further states that the suburban location of the Property will be convenient for the participants and beneficiaries of the EIT Fund, as well as the EIT Fund staff, who will benefit from affordable housing available in close proximity to the Property. In addition, Wagner states that the EIT Fund's purchase of the Property and construction of the EIT Fund Facility will further the EIT Fund's longterm goals of stabilizing its expenses with an updated, modernized, and fully-owned facility, and expanding its service offerings to include the medical clinic.
Wagner represents that it reviewed the methodology used by the Independent Appraiser to ensure that the methodology adhered to sound principles of valuation. Wagner states that it reached its conclusion as to an appropriate purchase price for the Property based, not on a mechanical mathematical averaging process, but by relying upon a strong framework to determine a purchase price that represents a prudent judgment as to a fair market value that is in the best interest of the EIT Fund participants, given the intended use of the Property and the value of the transaction to the EIT Fund. In reliance on this analysis, Wagner affirms that the Sale is at least as favorable to the EIT Fund as the transaction that would have occurred in an arm's length transaction between independent and unrelated parties, each of whom had full knowledge of the relevant facts and neither of whom was under any compulsion to buy or sell.
Wagner also considered the financial condition of the EIT Fund in its analysis. In this regard, Wagner notes that, as of June 30, 2018, the EIT Fund's financial position included assets totaling $456,536,340, which represents a 9% increase over the previous year. Wagner states that the $710,000 purchase price will involve 0.16% of the Fund's total assets, and that the $10,248,350 to construct the EIT Fund Facility and access road will involve about 2.24% of the EIT Fund's total assets. Thus, according to Wagner, the total cost to the EIT Fund with respect to the Sale will involve about 2.40% of the EIT Fund's total assets.
In addition, Wagner represents that the EIT Fund will not require a loan or other financing to acquire the Property and construct the EIT Fund Facility and access road. Wagner notes that the EIT Fund has represented that it will be able to meet its obligations to pay benefits under the Fund and will not need to obtain financing to support its acquisition of the Property. Wagner concludes that the purchase of the Property and construction of the EIT Fund Facility is in the best interest of the EIT Fund participants and will not negatively affect the EIT Fund's overall financial health.
Moreover, Wagner notes that the EIT Fund, its engineers, design consultants, and professional advisors have met with the Village of Alsip regarding the purchase of the Property, the subdivision and easement, the Fund's intended use of the Property, and various necessary zoning, building, and easement construction permits. According to the EIT Fund representatives, all indications from the Village of Alsip are that development approvals will be granted once the EIT Fund's formal applications are filed.
Wagner states that, to further ensure the protection of the EIT Fund and its participants and beneficiaries, it will continue to monitor the process, enforce the final terms of the Sale, and take whatever actions are necessary to protect the interests of the EIT Fund participants and beneficiaries up to and coincident with the closing date of the Sale.
Finally, Wagner may not enter into, and has not entered into, any agreement, arrangement or understanding in connection with the Sale that indemnifies Wagner, in whole or in
17.
18.
In addition, section 406(a)(1)(D) of the Act prohibits a plan fiduciary from causing a plan to engage in a transaction if the fiduciary knows or should know that such transaction constitutes a direct or indirect transfer to, or use by or for the benefit of, a party in interest, of the income or assets of the plan. The EJAT Trust's sale of the Property to the EIT Fund, and the EIT Fund's corresponding purchase of the Property from the EJAT Trust, and the granting of the right of first offer, constitute a prohibited transfer of assets (
Section 406(b)(1) of the Act prohibits a plan fiduciary from dealing with the assets of the plan in his or her own interest or for his or her own account. Section 406(b)(2) of the Act prohibits a plan fiduciary, in his or her individual or in any other capacity, from acting in any transaction involving the plan on behalf of a party whose interests are adverse to the interests of the plan or the interests of the plan's participants or beneficiaries.
The EJAT Trust Board and the EIT Fund Board share one trustee, Mr. Donald Finn, who is the business manager and financial secretary with respect to the Local 134. Mr. Finn will recuse himself with respect to the transactions described in this proposal. However, in the Department's view, Mr. Finn remains in a position of influence with respect to the Local 134 Trustees. The EJAT Trust Board and the EIT Fund Board may be deemed as engaging in a prohibited act of self-dealing in violation of section 406(b)(1) of the Act with respect to the Sale and the granting of the right of first offer. In addition, each Board may have divided loyalties regarding the Sale and the granting of the right of first offer, in violation of section 406(b)(2) of the Act.
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Those persons who may be interested in the publication in the
The Department must receive all written comments and requests for a hearing no later than forty-five (45) days from the date of the publication of the Notice in the
All comments will be made available to the public.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemption, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemption, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
If the proposed exemption is granted, the restrictions of sections 406(a)(1)(A) and (D), and 406(b)(1) and (b)(2) of the Act shall not apply to: (a) the sale (the Sale) by the Electrical Joint Apprenticeship and Training Trust (the EJAT Trust) of 5.11 acres of unimproved real property to the Electrical Insurance Trustees Insurance Fund (the EIT Fund), a party in interest with respect to the EJAT Trust; and (b) the EIT Fund's granting of a right of first offer (the Right of First Offer) to the EJAT Trust, for the purchase back of the Property by the EJAT Trust from the EIT Fund, provided the conditions in Section II are met.
(a) The Sale is a one-time transaction for cash;
(b) The terms and conditions of the Sale are at least as favorable to the EJAT Trust and the EIT Fund as the terms and conditions they would have received in an arm's length transaction between unrelated and independent parties, each of whom had full knowledge of the relevant facts, and neither of whom were under any compulsion to buy or sell;
(c) The EJAT Trust Independent Fiduciary prudently:
(1) Represents the EJAT Trust's interests for all purposes with respect to the Sale;
(2) Determines that the Sale is in the interest of, and protective of, the EJAT Trust and the participants of the EJAT Trust;
(3) Reviews and approves the terms and conditions of the Sale;
(4) Engaged the EJAT Trust Independent Appraiser and ensured the Appraiser's independence;
(5) Reviews the EJAT Independent Appraisal Report, confirms that the underlying methodology is reasonable and accurate, and confirms that the valuation of the Property was reasonably derived;
(6) Ensures that the EJAT Trust Independent Appraiser renders an updated fair market valuation of the Property as of the date of the Sale;
(7) Determines whether it is prudent for the EJAT Trust to proceed with the Sale; and
(8) Ensures that it has not and will not enter into any agreement or instrument that violates section 410 of ERISA.
(d) The EIT Fund Independent Fiduciary prudently:
(1) Represents the EIT Fund's interests for all purposes with respect to the Sale;
(2) Determines that the Sale is in the interest of, and protective of, the EIT Fund and the participants of the EIT Fund;
(3) Reviews and approves the terms and conditions of the Sale;
(4) Engaged the EIT Fund Independent Appraiser for the Sale and ensured the Appraiser's Independence;
(5) Reviews the EIT Fund Independent Appraisal Report, confirms that the underlying methodology is reasonable and accurate, and confirms that the valuation of the Property was reasonably derived;
(6) Ensures that the EIT Fund Independent Appraiser renders an updated fair market valuation of the Property as of the date of the Sale;
(7) Determines whether it is prudent for the EIT Fund to proceed with the Sale; and
(8) Ensures that it has not and will not enter into any agreement or instrument that violates section 410 of ERISA.
(e) The Sale is not part of an agreement, arrangement, or understanding designed to benefit any party other than the EJAT Trust and the EIT Fund;
(f) Any use of the Property by the EIT Fund and the Related Plans that is described in PTEs 76-1 and 77-10 complies with the conditions of those exemptions;
(g) Not later than 90 days after the Sale is completed, the EJAT Trust Independent Fiduciary and the EIT Fund Independent Fiduciary each submit a written statement to the Department documenting that the Sale has met all of the requirements of this the exemption;
(h) The EIT Fund Independent Fiduciary may not enter, and has not entered, into any agreement, arrangement or understanding regarding the Sale that indemnifies the EIT Fund Independent Fiduciary, in whole or in part, or waives any liability for negligence or for violation of state or federal law by the EIT Fund Independent Fiduciary;
(i) The Independent Appraiser selected by the EIT Fund Independent Fiduciary may not enter, and has not entered, into any agreement, arrangement or understanding regarding the Sale that indemnifies the EIT Fund Independent Appraiser, in whole or in part, or waives any liability for negligence or for any violation of state or federal law by the Independent Appraiser;
(j) The EJAT Trust Independent Fiduciary may not enter, and has not entered, into any agreement, arrangement or understanding regarding the Sale that indemnifies the EJAT Trust Independent Fiduciary, in whole or in part, or waives any liability for negligence or for any violation of state or federal law by the EJAT Trust Independent Fiduciary;
(k) The Independent Appraiser that is selected by the EJAT Trust Independent Fiduciary may not enter, and has not entered, into any agreement, arrangement or understanding regarding the Sale that indemnifies the Independent Appraiser, in whole or in part, for negligence or for any violation of state or federal law by the Independent Appraiser; and
(l) The EJAT Trust may not re-purchase the Property from the EIT Fund absent an individual exemption granted by the Department.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Administrator of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing provided such request is filed in writing with the Administrator, Office of Trade Adjustment Assistance, at the address shown below, no later than April 1, 2021.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Administrator, Office of Trade Adjustment Assistance, at the address shown below, not later than April 1, 2021.
The petitions filed in this case are available for inspection at the Office of the Administrator, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW, Washington, DC 20210.
In accordance with the Section 223 (19 U.S.C. 2273) of the Trade Act of 1974 (19 U.S.C. 2271,
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for TAA, the group eligibility requirements under Section 222(a) of the Act (19 U.S.C. 2272(a)) must be met, as follows:
(1) The first criterion (set forth in Section 222(a)(1) of the Act, 19 U.S.C. 2272(a)(1)) is that a significant number or proportion of the workers in such workers' firm (or “such firm”) have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The second criterion (set forth in Section 222(a)(2) of the Act, 19 U.S.C. 2272(a)(2)) may be satisfied by either (A) the Increased Imports Path, or (B) the Shift in Production or Services to a Foreign Country Path/Acquisition of Articles or Services from a Foreign Country Path, as follows:
(i) the sales or production, or both, of such firm, have decreased absolutely;
(ii) (I) imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased; OR
(II)(aa) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased; OR
(II)(bb) imports of articles like or directly competitive with articles which are produced directly using the services supplied by such firm, have increased; OR
(III) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(iii) the increase in imports described in clause (ii) contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; OR
(i) (I) there has been a shift by such workers' firm to a foreign country in the production of articles or the supply of services like or directly competitive with articles which are produced or services which are supplied by such firm; OR
(II) such workers' firm has acquired from a foreign country articles or services that are like or directly competitive with articles which are produced or services which are supplied by such firm;
(ii) the shift described in clause (i)(I) or the acquisition of articles or services described in clause (i)(II) contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for TAA, the group eligibility requirements of Section 222(b) of the Act (19 U.S.C. 2272(b)) must be met, as follows:
(1) a significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm is a supplier or downstream producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act (19 U.S.C. 2272(a)), and such supply or production is related to the article or service that was the basis for such certification (as defined in subsection 222(c)(3) and (4) of the Act (19 U.S.C. 2272(c)(3) and (4));
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; OR
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation determined under paragraph (1).
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for TAA, the group eligibility requirements of Section 222(e) of the Act (19 U.S.C. 2272(e))must be met, by following criteria (1), (2), and (3) as follows:
(1) the workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section 202(b)(1) of the Act (19 U.S.C. 2252(b)(1)); OR
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1)of the Act (19 U.S.C. 2436(b)(1)); OR
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) of the Trade Act (19 U.S.C. 2252(f)(1)) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) notice of an affirmative determination described in subparagraph (B) or (C)of paragraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) the 1-year period described in paragraph (2); OR
(B) notwithstanding section 223(b) of the Act (19 U.S.C. 2273(b)), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (Increased Imports Path) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (Shift in Production or Services to a Foreign Country Path or Acquisition of Articles or Services from a Foreign Country Path) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(e) (firms identified by the International Trade Commission) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for TAA have not been met for the reasons specified.
The investigation revealed that the requirements of Trade Act section 222(a)(1) and (b)(1) (significant worker total/partial separation or threat of total/partial separation), or (e) (firms identified by the International Trade Commission), have not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A)(i) (decline in sales or production, or both), or (a)(2)(B) (shift in production or services to a foreign country or acquisition of articles or services from a foreign country), (b)(2) (supplier to a firm whose workers are certified eligible to apply for TAA or downstream producer to a firm whose workers are certified eligible to apply for TAA), and (e) (International Trade Commission) of section 222 have not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports), (a)(2)(B) (shift in production or services to a foreign country or acquisition of articles or services from a foreign country), (b)(2) (supplier to a firm whose workers are certified eligible to apply for TAA or downstream producer to a firm whose workers are certified eligible to apply for TAA), and (e) (International Trade Commission) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued in cases where the petition regarding the investigation has been deemed invalid.
The following determinations terminating investigations were issued because the worker group on whose behalf the petition was filed is covered under an existing certification.
The following determinations terminating investigations were issued because the petitioning group of workers is covered by an earlier petition that is the subject of an ongoing investigation for which a determination has not yet been issued.
I hereby certify that the aforementioned determinations were issued during the period of
In accordance with Sections 223 and 284 (19 U.S.C. 2273 and 2395) of the Trade Act of 1974 (19 U.S.C. 2271,
The following revised certifications of eligibility to apply for TAA have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination, and the reason(s) for the determination.
The following revisions have been issued.
The following revised determinations on reconsideration, certifying eligibility to apply for TAA, have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following revised determinations on reconsideration, certifying eligibility to apply for TAA, have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
I hereby certify that the aforementioned determinations were issued during the period of
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued a temporary exemption in response to a February 20, 2021 request from Exelon Generation Company, LLC (Exelon, the licensee) from requirements regarding pre-access drug and alcohol testing to maintain authorization for individuals assigned work activities necessary for the timely completion of a refueling and maintenance outage at LaSalle County Station, Units 1 and 2 (LSCS).
The exemption was issued on February 22, 2021.
Please refer to Docket ID NRC-2021-0070 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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• Attention: The PDR, where you may examine and order copies of public documents, is currently closed. You may submit your request to the PDR via email at
Bhalchandra K. Vaidya, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1324, email:
By application dated February 20, 2021, as supplemented by letter dated February 21, 2021, the NRC received from Exelon a request for a temporary exemption from certain requirements of part 26 of title 10 of the
The NRC's regulations at 10 CFR part 26 include the fitness-for-duty (FFD) requirements concerning pre-access testing for granting FFD authorization to an individual who either has never held FFD authorization or whose last period of FFD authorization was terminated favorably and no potentially disqualifying FFD information has been discovered or disclosed that was not previously reviewed and resolved by a licensee under the requirements of this part. Sections 26.65(d) and 26.65(e) of the NRC's regulations describe the requirements for FFD authorization reinstatement after an interruption of more than 30 days and after an interruption of 30 or fewer days, respectively. In particular, 10 CFR 26.65(d)(1)(ii) and 26.65(e)(2)(iii)(B) require the licensee to verify that the
According to the application, during the week of February 15, 2021, severe winter weather caused substantial service disruptions at the FedEx® Express shipping service hub in Memphis, Tennessee. The weather delayed shipments and delivery of drug and alcohol test specimens for approximately 435 outage workers granted temporary access to LSCS. This delay could result in FFD authorization being removed for these individuals and Exelon's inability to timely restore LSCS to the electrical grid to serve the public and the Nation's economic infrastructure. To avoid this possibility, Exelon requested a temporary exemption from 10 CFR 26.65(d)(1)(ii) and 26.65(e)(2)(iii)(B) to allow for extending the 5 business days requirement to 15 business days.
Upon review, the NRC determined that pursuant to 10 CFR 26.9, the requested exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the NRC granted the licensee's request to temporarily exempt LSCS from the requirements in 10 CFR 26.65(d)(1)(ii) and 10 CFR 26.65(e)(2)(iii)(B). The exemption was effective upon issuance and remained in effect for the specimen shipments then in transit and any subsequent shipments made through February 26, 2021, to allow time to arrange alternative shipping, if possible.
The table in this notice provides the facility name, docket numbers, document descriptions, and ADAMS accession numbers related to the issued exemption. Additional details on the issued exemption, including the exemption request submitted by the licensee and the NRC's decision, are provided in the documents listed in the table in this notice. For additional directions on accessing information in ADAMS, see the
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled “Standards for Protection Against Radiation.”
Submit comments by May 21, 2021. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2021-0039 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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The NRC encourages electronic comment submission through the Federal Rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
Pursuant to Section 19(b)(1)
(the “Commission”) the proposed rule change as described in Items I, II and III below, which Items have been prepared by the self-regulatory organization. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.
Pursuant to the provisions of Section 19(b)(1) under the Act,
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Fee Schedule, pursuant to IEX Rule 15.110(a) and (c), to conform language in Footnote 1 to the Fee Code Modifiers table of the IEX Fee Schedule to a pending rule change to allow Retail orders to execute for free against an unprotected displayed odd lot order priced more aggressively than the Midpoint Price. Footnote 1 to the Fee Code Modifiers table describes the application of Fee Code R, and that it applies only to a Retail order submitted by an IEX Retail Member Organization that (i) satisfies the criteria set forth in IEX Rules 11.190(b)(15) and 11.232(a)(1) and (ii) is a Discretionary Peg order or Midpoint Peg order with a Time-in-Force of IOC or FOK only eligible to trade at the Midpoint Price. Further, as specified in the IEX Fee Schedule, executed orders subject to Fee Code R are free.
IEX's Retail Price Improvement Program is designed to provide retail investors with meaningful price improvement opportunities by offering price improvement to Retail orders. Only Members
Currently, Retail orders can only execute at the Midpoint Price. IEX recently made an immediately effective rule filing to allow displayed odd lot orders on the Exchange,
IEX is not proposing any other changes to its Fee Schedule, and will implement this change on March 15, 2020, so that it takes effect the first day of its phased implementation of displayed odd lot functionality.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Specifically, the Exchange's proposal to not charge fees for execution of Retail orders that match with unprotected displayed odd lot orders priced more aggressively than the Midpoint Price is consistent with the Exchange's pricing scheme of not charging fees for Retail order executions.
The Exchange continues to believe that offering free execution of Retail orders is a reasonable approach to incentivizing Members to send such orders to IEX. While the recent changes to the Retail Price Improvement Program to allow Retail orders to obtain price improvement by executing against unprotected displayed odd lot orders priced more aggressively than the Midpoint Price offers the opportunity for Retail orders to obtain even more meaningful price improvement, the Exchange continues to believe that allowing Retail orders to execute for free will enhance such incentive. The Exchange also believes that allowing all Retail orders to execute for free will not only benefit retail investors, but will also incentivize and benefit the posting of displayed odd lot orders on the Exchange that view interacting with retail investors as desirable.
IEX also believes that it is equitable and not unfairly discriminatory to provide free executions to all Retail orders notwithstanding that not all Members handle Retail orders. There is ample precedent for differentiation of retail order flow in the retail programs of other exchanges.
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. To the contrary, IEX believes that charging no fees for the execution of all Retail orders, including Retail orders that execute against unprotected displayed odd lot orders priced more aggressively than the Midpoint Price, would continue to enhance competition and execution quality for retail order flow among execution venues and contribute to the public price discovery process. The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition since competing venues have and can continue to adopt similar fees for orders executing in their retail programs, subject to the SEC rule change process. Further, the Exchange operates in a highly competitive market in which market participants can easily direct their orders to competing venues, including off-exchange venues, if fees are viewed as non-competitive.
The Exchange also does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. While Retail orders will be treated differently from other orders, those differences are not based on the type of Member entering orders but on whether the order is for a retail customer, and there is no restriction on whether a Member can handle retail customer orders.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 4703, as described further below. The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 4703(h), which describes Orders with “Reserve Size,”
The Exchange established the Reserve Orders with the intention that it would always act as a provider of liquidity upon replenishment. Indeed, this is what participants have come to expect from the operation of Reserve Orders.
In late 2016, however, a rule filing introduced a rare circumstance where a Reserve Order, upon replenishment of its Displayed Order component, theoretically could become a liquidity remover under the existing Exchange Rules. Based upon the taker-maker model of the Exchange, this rare circumstances only occurs in securities priced less than $1.
An example of the rare theoretical circumstance is as follows. Order 1 is a Price to Comply Order to buy at $0.95 resting on the Exchange book with 100 shares displayed and 3,000 shares in reserve (for a total order size of 3,100 shares). Order 2 is an Order to sell 100 shares at $0.95, which executes against the 100 displayed shares from Order 1 upon entry. Order 3 is a Post Only order to sell 1,000 shares at $0.95 that is
The Exchange did not account for this scenario when drafting its rules. In fact, the Exchange does not presently handle this scenario as described above. Instead, upon replenishment, the Exchange reprices the new displayed Price to Comply Order such that it does not execute against Order 3 as a liquidity taker.
However, the Exchange now proposes to eliminate any unintended inconsistency as to how it handles this scenario and make clear in its Rules that a Reserve Order is an adder of liquidity after posting on the Exchange Book in all circumstances. Specifically, the Exchange proposes to amend the Rule to state that if the new Displayed Order would lock an Order that posted to the Exchange Book before replenishment can occur, the Displayed Order will post at the locking price if the resting Order is Non-Display or will be repriced, ranked, and displayed at one minimum price increment lower (higher) than the locking price if the resting order to sell (buy) is Displayed.
Again, in the above example, the proposed rule will prevent Order 1 from becoming a liquidity remover because upon replenishment, the new Displayed Order will not attempt to execute against Order 3, but instead it will post to the Exchange Book and display at a price of $0.9499, while the remaining 2,900 non-display shares in reserve will remain posted at $0.95.
By posting new Displayed Orders without attempting to execute, the Displayed Order will avoid removing liquidity upon replenishment.
The Exchange notes that the Commission has approved a similar rule change that its sister exchange, the Nasdaq Stock Market, LLC (“Nasdaq”), submitted late last year.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed rule change is consistent with the Act because it will help ensure that the Exchange's Rule governing Reserve Orders will be consistent with the original intention of the Exchange and the expectation of participants that such Orders, after posting on the Exchange Book, will always be liquidity providers and not liquidity takers. It would also ensure that the Exchange's Order Types operate the same way during a race condition as they do during normal conditions. The proposal would eliminate any ambiguity under the existing rules as to whether a Reserve Order would take liquidity when a locking order posts to the Exchange book prior to the Reserve Order completing its replenishment (or prior to the Displayed portion of a Reserve Order posting to the Exchange Book for the first time). Thus, the proposal would ensure that the Exchange's Rules are transparent and clear about how the System processes Reserve Orders.
Finally, the proposal is consistent with the Act because it would correct a non-substantive typographical error in the Rule text, which will improve its readability and clarity, to the benefit of the public and investors.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Again, Exchange intends for the proposed rule change to only eliminate an inconsistency as to how it handles a rare circumstance that causes the System to process Reserve Orders in an unintended manner. The Exchange does not anticipate this proposal will have any impact on competition whatsoever.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
CFE is proposing to update CFE Policy and Procedure XIII (Cboe Global Markets, Inc. and Subsidiaries Regulatory Independence Policy for Regulatory Group Personnel) (“P&P XIII”) and CFE Policy and Procedure XIV (Cboe Global Markets, Inc. and Subsidiaries Regulatory Independence Policy for Non-Regulatory Group Personnel) (“P&P XIV”) (collectively, “Regulatory Independence Policies”).
The scope of this filing is limited solely to the application of the proposed rule change to security futures that may be traded on CFE. Although no security futures are currently listed for trading on CFE, CFE may list security futures for trading in the future. The text of the proposed rule change is attached as Exhibit 4 to the filing but is not attached to the publication of this notice.
In its filing with the Commission, CFE 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. CFE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
CFE is a subsidiary of Cboe Global Markets, Inc. (“CGM”). CGM and its exchange subsidiaries previously adopted the Regulatory Independence Policies and make updates to the Regulatory Independence Policies from time to time. The Regulatory Independence Policies are incorporated into the Policies and Procedures Section of the CFE Rulebook in P&P XIII and P&P XIV.
CFE previously had a regulatory services agreement (“RSA”) in place with National Futures Association (“NFA”) under which NFA acted as a
The RSA between CFE and NFA expired at the end of 2020. Accordingly, CGM and CFE are making updates to the Regulatory Independence Policies to remove references to the RSA and to NFA's previous status as a regulatory services provider to CFE. The proposed rule change proposes to revise P&P XIII and P&P XIV to reflect these updates that CGM and CFE are making to the Regulatory Independence Policies.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
• to enable the Exchange to enforce compliance by its Trading Privilege Holders and persons associated with its Trading Privilege Holders with the provisions of the rules of the Exchange,
• to prevent fraudulent and manipulative acts and practices,
• to promote just and equitable principles of trade,
• to remove impediments to and perfect the mechanism of a free and open market and a national market system,
• and in general, to protect investors and the public interest.
The proposed rule change retains the current substantive provisions of the Regulatory Independence Policies within CFE's rules while updating the Regulatory Independence Policies to remove reference to a regulatory service provider that no longer performs regulatory services for CFE. By retaining the current substantive provisions of the Regulatory Independence Policies within CFE's rules, the proposed rule change contributes to minimizing conflicts of interest in the decision making process of CFE and to the preservation of the independence of the Exchange's regulatory group as it performs regulatory functions for the Exchange. The Exchange believes that the proposed rule change is equitable and not unfairly discriminatory in that the Regulatory Independence Policies apply equally in relation to all CFE Trading Privilege Holders.
CFE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, in that the proposed rule change contributes to CFE's ability to carry out its responsibilities as a self-regulatory organization. The Exchange believes that the proposed rule change will not impose any undue burden on competition because the Regulatory Independence Policies apply equally in relation to all CFE Trading Privilege Holders.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change will become operative on March 22, 2021. At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) 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.
2:30 p.m. on Thursday, March 25, 2021.
The meeting will be held via remote means and/or at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matter of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to 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”)
The proposed rule change of The Depository Trust Company (“DTC”) would eliminate the requirement that a Participant must confirm its activity statements monthly through DTC's Participant Inquiry Notification System (“PINS”) system. Pursuant to the proposed rule change, this requirement would be removed from the DTC PTS/PBS Functions Guides
In its filing with the Commission, the clearing agency included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change of DTC would eliminate the requirement that a Participant must confirm its activity statements monthly through PINS. Pursuant to the proposed rule change, this requirement would be removed from the PTS/PBS Guides,
DTC provides regular reports and statements to Participants showing their settlement activity; this includes activity, risk control monitoring and settlement reports. The Procedures of DTC require Participants to reconcile both their activity and positions with DTC upon receipt of applicable daily activity statements at the end of each day and to immediately report any discrepancies.
With respect to the month-end confirmation, the PTS/PBS Guides require each Participant to reconcile and confirm with DTC its month-end securities positions listed on its DTC monthly statement of positions
If a Participant has more than one account, it must confirm the Monthly Position Statement for each account. Also, a partner or officer of the Participant must perform the end-of-month confirmation at least once in a 12-month period.
Pursuant to the PTS/PBS Guides, failure by a Participant to confirm within the prescribed schedule will subject it to fines, pursuant to DTC's Rule 21. A first occurrence will cause the Participant to receive a warning letter of a failure to provide timely confirmation. For a second occurrence, a fine of $150 will be charged. Each subsequent occurrence will be subject to a $300 fine. Occurrences are determined on a moving 12-month period.
DTC believes that the requirement for Participants to submit a month-end confirmation of positions is no longer necessary for DTC or its Participants to ensure prompt and accurate reconciliations by Participants of their activity. In the past, Participants frequently received hard copy reports relating to their DTC activity, which could take longer to process and reconcile than electronic reports. Today, reports and statements are offered exclusively in electronic form, which facilitates the daily reconciliation of activity by Participants in a prompt and accurate manner through automated means. In this regard, DTC proposes to eliminate the requirement set forth in the PTS/PBS Guides for Participants to submit a month-end confirmation, as described below. In this regard, an affirmative confirmation of positions would no longer be required and the functionality for such an affirmative confirmation would be decommissioned.
In addition, DTC proposes to further clarify, within the Service Guides, Participants obligations to regularly reconcile their activity daily; and also, as applicable, refine text contained in certain Service Guides relating to Participants obtaining and reconciling certain corporate actions-related information that they may use in connection with their use of DTC's services, as described below. The proposed rule change would add contact information to the text of the Service Guides for a Participant to report to DTC any discrepancies in information, reports and statements provided to it by DTC on the Participant's activity and positions, as described below.
As mentioned above, the requirement that DTC proposes to remove, as described above, for a Participant to perform a month-end confirmation of its activity is set forth in the PTS/PBS Guides. In this regard, the proposed rule change DTC would delete the following text from the applicable section
DTC procedures require you to reconcile and confirm with DTC your month-end positions listed on the DTC Monthly Position Statement. No later than the 10th business day after the last Friday of the month, you must confirm the accuracy of the position statement electronically via PINS. DTC will send a reminder notice of the confirmation due date via an electronic message posted on the PINS Bulletin Board.
If you have multiple accounts, you must confirm the end-of-month position statement for each account. Also, a partner or officer of the participant firm must perform the end-of-month confirmation at least once in a 12-month period.
You must ensure adequate backup to fulfill this ongoing requirement. Failure to confirm within the prescribed schedule will subject you to fines, pursuant to DTC's Rule 21. (DTC's rules are available at
If you need help with obtaining passwords or have questions about this procedure, please contact your relationship manager. For help with using the PTS function PINS or the Web version (available at
To view the procedures and screens for processing end of month confirmations, click here.
PINS is used in association with all of DTC's services and products.
Use the following procedure to access the Bulletin Board where you can view global notices as well as your own notices.
1. Type PINS on the Enter Function screen and press ENTER.
2. Press PF3/15. Result—The Bulletin Board Notice List appears.
3. Press PF6/18 or type X to the left of a selected notice and press ENTER to view details for a notice.
Use the following procedure to view information about your End of Month confirmations.
1. Type PINS on the Enter Function screen and press ENTER.
2. Type 6 in the Enter Option field and press ENTER.
Use the following procedure to confirm outstanding end of month confirmations or add new notifications.
1. Type PINS on the Enter Function screen and press ENTER.
2. Type 11 in the Enter Option field and press ENTER.
3. Refer to the
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10. Press PF1/13 to confirm the notifications for the specified month and year.
In addition, to provide added clarity regarding a Participant's obligation to reconcile its activity daily, DTC would add the following text to the “Overview” section of each of the Service Guides:
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In addition, to promote consistency among the Service Guides in this regard, DTC would delete the following text as it appears in the “Overview” section of the Deposits Service Guide because it would be replaced by the above.
“Warning! Although DTC makes every effort to provide Participants with timely information with respect to deposit activity, Participants are primarily responsible for maintaining such information for purposes of their own bookkeeping. It is recommended that every Participant reconcile its records with information provided by DTC before and after making a deposit and before and after any critical dates.”
Also, to promote consistency among the Service Guides in this regard, DTC would delete the following text as it appears in the “Overview” section of the Settlement Service Guide because it would be replaced by the above.
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Furthermore, DTC would delete the following text as it appears in the “Overview” section of the Distributions Service Guide relating to obtaining and reconciling certain corporate actions-related information and replace it with text revised for further clarity in this regard, as more fully described below:
“Note: Although DTC makes every effort to provide you with timely information regarding income payments, you are primarily responsible for obtaining such information without reliance on DTC. We recommend that you reconcile your records with DTC's in advance of dividend or interest payable dates.”
Also, DTC would delete the following text as it appears in the “Overview” section of the Redemptions Service Guide relating to obtaining and reconciling certain corporate actions-related information and replace it with text revised for further clarity in this regard, as more fully described below:
“Note: Although DTC makes every effort to provide you with timely information regarding redemption and maturity payments, you are primarily responsible for obtaining such information without reliance on DTC. We recommend that you reconcile your records with DTC's in advance of redemption or maturity payable dates.”
DTC would delete the following text as it appears in the “Overview” section of the Reorganizations Service Guide relating to obtaining and reconciling certain corporate actions-related information and replace it with text revised for further clarity in this regard, as more fully described below:
“Note:
This guide provides information regarding DTC's processing of reorganization events. DTC obtains this information from sources it believes to be reliable, but DTC does not represent the accuracy, adequacy, timeliness, completeness or fitness for any particular purpose of this information, which is provided as is. Furthermore, this information is subject to change. Participants should independently obtain, monitor and review any available documentation relating to the reorganization activity and verify information obtained from DTC. In addition, nothing contained in such information shall relieve participants of their responsibility under DTC's Rules and Procedures to check the accuracy of this information.”
DTC would replace the text deleted from the Distributions, Redemptions and Reorganizations Service Guides, as proposed above, with the following:
“Subject to the terms of the “Important Legal Information” section, while DTC endeavors to provide Participants with timely and accurate information with respect to Distributions, Redemptions, and Reorganizations events, Participants are responsible for monitoring, obtaining and confirming such information without reliance on DTC, and for reconciling their records in advance of any critical dates, including, but not limited to, dividend, interest payable, redemption, maturity payable, and voluntary and mandatory reorganizations dates.”
The proposed rule change would become effective upon filing.
Section 17A(b)(3)(F) of the Securities Exchange Act of 1934 (“Act”),
The proposal would eliminate an outdated requirement that Participants perform month-end confirmations, as described above. By removing this requirement, Participants would be able to allocate the time they spend on month-end confirmations to other DTC-related activities as they deem necessary, including performance of daily reconciliations. By removing an obligation that DTC believes in no longer necessary to facilitate the prompt and accurate reconciliation of Participant reports, and by facilitating Participants' ability to allocate the associated resources to other activities relevant to their DTC activity, including checking the accuracy of daily activity statements and reports relating to activity at DTC, DTC believes the proposed rule change would promote the prompt and accurate clearance and settlement of securities transactions.
The proposed changes to revise and add text to clarify Participants' ongoing obligations to reconcile their respective transaction activity in the Service Guides will enhance the clarity and transparency of the Service Guides. By
Therefore, for the above reasons, DTC believes that the proposed rule change helps promote the prompt and accurate clearance and settlement of securities transactions, consistent with Section 17(A)(b)(3)(F) of the Act.
DTC does not believe that the proposed rule change will have any impact on competition because the elimination of the requirement of a month-end confirmation by Participants, as described above, will merely change the ability of Participants to review and reconcile their activity with DTC in a prompt and accurate manner and not otherwise affect Participants' rights or obligations. The proposed changes to revise and add text to clarify Participants' ongoing obligations to reconcile their respective transaction activity in the Service Guides will merely enhance the clarity and transparency of the Services Guides and would not affect DTC's operations or the rights or obligations of the Participants.
Written comments relating to this proposed rule change have not been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form
(
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act and OMB procedures, SBA is publishing this notice to allow all interested member of the public an additional 30 days to provide comments on the proposed collection of information.
Submit comments on or before April 21, 2021.
Written comments and recommendations for this information collection request should be sent within 30 days of publication of this notice to
You may obtain a copy of the information collection and supporting documents from the Agency Clearance Office at
Lenders requesting SBA to purchase the guaranty portion of a loan are required to supply the Agency with a certified transcript of the loan account. This form is uniform and convenient means for lenders to report and certify loan accounts to purchase by SBA. The Agency uses the information to determine date of loan default and whether Lender disbursed and serviced the loan according to Loan Guaranty agreement.
Comments may be submitted on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Administrative declaration of a disaster for the Commonwealth of Pennsylvania dated 12/18/2020.
Issued on 03/16/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
The notice of an Administrative declaration for the Commonwealth of Pennsylvania, dated 12/18/2020 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 04/19/2021.
All other information in the original declaration remains unchanged.
Notice is hereby given that Seacoast Capital Partners IV, L.P., 55 Ferncroft Road, Suite 110, Danvers, MA, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under Section 312 of the Act and Section 107.730, Financings which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). Seacoast Capital Partners IV, L.P. proposes to provide financing to Avenger Flight Group, LLC, 1450 Lee Wagener Blvd., Fort Lauderdale, FL 33315, (“AVF”).
The financing is brought within the purview of § 107.730(a) and (d) of the Regulations because Seacoast Capital Partners III, L.P., an Associate of Seacoast Capital Partners IV, L.P., owns more than ten percent of AVF, and therefore this transaction is considered a financing of an Associate requiring prior SBA approval.
Notice is hereby given that any interested person may submit written comments on the transaction, within fifteen days of the date of this publication, to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments up to April 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Natalie Donahue, Chief of Evaluation, Bureau of Educational and Cultural Affairs, who may be reached at (202) 632-6193 or
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Career Connections program is managed by the Bureau of Educational and Cultural Affairs (ECA) Office of Alumni Affairs OAA. Started in 2019, the Career Connections program brings together American alumni (18-35 years old) of U.S. Government-sponsored exchange programs with expert career coaches, professionals from diverse fields, and international leaders to help alumni market their international exchange experiences. Delivered as two-day seminars across the country, the Career Connections program provides invaluable networking opportunities for U.S. alumni with leaders in their communities with activities including: resume-building, developing a personal brand, translating skills gained through the exchange experience, developing an online presence, and networking to develop connections with fellow alumni and expert speakers alike.
ECA's Evaluation Division will undertake an internal evaluation of the Career Connections program. The purpose of this evaluation is to inform the next iteration of the award with participant-driven recommendations on how to strengthen the Career Connections program. The Evaluation Division will survey participants of Career Connections participants along with a small sample of alumni that have not participated in seminars, as well as conduct key-informant interviews with alumni and seminar presenters.
As existing project monitoring data does not cover the topics being investigated sufficiently, it is necessary to collect information directly from program alumni to fully understand how the Career Connections program can be strengthened and what the immediate outcomes for participants are. While alumni who have participated in the Career Connections program will receive an online survey, a small number will also be invited to participate in individual interviews to explore key issues in greater depth. The survey will also be sent to a small sample of alumni that have not participated in Career Connections seminars to understand why they haven't participated and how they could be enticed to in the future. Finally, as ECA wishes to understand best practices in professional development training, a small group of seminar presenters will be invited to participate in individual interviews to discuss what they feel could be strengthened.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of limitation on claims for judicial review of actions by FHWA.
This notice announces actions taken by the FHWA that are final. The action relates to refinements to the design of Portage Bay Bridge, Roanoke Lid, and other components in the Portage Bay to I-5 area for SR 520, I-5 to Medina construction in the City of Seattle, King County, State of Washington that are contained in the NEPA Reevaluation signed February 22, 2021 and Revised Section 4(f) Evaluation signed February 18, 2021.
A claim seeking judicial review of the Federal agency actions on the listed highway project will be barred unless the claim is filed on or before August 19, 2021. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Lindsey Handel, Urban Transportation Engineer, Federal Highway Administration, 711 S. Capitol Way, Suite 501, Olympia, WA 98501-1284, 360-753-9480, or
On September 7, 2011, FHWA published a “Notice of Final Federal Agency Actions on Proposed Highway in Washington” in the
The project proposed to improve safety and mobility for people and goods across Lake Washington by replacing the SR 520 Portage Bay and Evergreen Point bridges and improve existing roadway between Interstate 5 (I-5) in Seattle and Evergreen Point Road in Medina spanning 5.2 miles. The Final Environmental Impact Statement (EIS) for the project was published in January 2011 and the Record of Decision (ROD) was issued in August 2011.
Since issuance of the FHWA ROD, the design of the Portage Bay Bridge, Roanoke Lid, and other components in the Portage Bay to I-5 area have been refined, including changes to the configuration of and connections to Portage Bay Bridge; refinement of the design of the Roanoke Lid; and refinements to the regional shared-use path and local active transportation connections. The re-evaluation considering these refinements was
Information about the re-evaluation and associated records are available from FHWA and WSDOT at the addresses provided above and can be found at:
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23 U.S.C. 139(l)(1), as amended by Moving Ahead for Progress in the 21st Century Act, (PL 112-141, 126 Stat. 405).
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a continuing information collection as required by the Paperwork Reduction Act of 1995 (PRA). An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment on the renewal of its collection titled “Uniform Interagency Transfer Agent Registration and Deregistration Forms.” The OCC also is giving notice that it has sent the collection to OMB for review.
Comments must be submitted on or before April 21, 2021.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
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Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
You may review comments and other related materials that pertain to this information collection
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Shaquita Merritt, OCC Clearance Officer, 202-649-5490, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the OMB for each collection of information that they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. The OCC asks that OMB extend its approval of the collection in this notice.
Section 17A(c) of the Securities Exchange Act of 1934 (the Act) requires all transfer agents for qualifying securities registered under section 12 of the Act, as well as for securities that would be required to be registered except for the exemption from registration provided by section 12(g)(2)(B) or section 12(g)(2)(G), to file with the appropriate regulatory agency an application for registration in such form and containing such information and documents as such appropriate regulatory agency may prescribe as necessary or appropriate in furtherance of the purposes of section 17A(c) of the Act.
To accomplish the registration of transfer agents, Form TA-1 was developed as an interagency effort by the Securities and Exchange Commission (SEC) and the Federal banking agencies (the OCC, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation). The agencies primarily use the data collected on Form TA-1 to determine whether an application for registration should be approved, denied, accelerated, or postponed, and they use the data in connection with their supervisory responsibilities. In addition, when a national bank or Federal savings association no longer acts as a transfer agent for covered corporate securities or when a national bank or Federal savings association is no longer supervised by the OCC,
Forms TA-1 and TA-W are mandatory and their collection is authorized by sections 17A(c), 17(a)(3), and 23(a)(1) of the Act, as amended (15 U.S.C. 78q-1(c), 78q(a)(3), and 78w(a)(1)). Additionally, section 3(a)(34)(B)(i) of the Act (15 U.S.C. 78c(a)(34)(B)(i)) provides that the OCC is the ARA in the case of a national banks and Federal savings associations and subsidiaries of such institutions. The registrations are public filings and are not considered confidential.
The OCC needs the information contained in this collection to fulfill its statutory responsibilities. Section 17A(c)(2) of the Act (15 U.S.C. 78q-1(c)(2)), as amended, provides that all those authorized to transfer securities registered under section 12 of the Act (transfer agents) shall register by filing with the appropriate regulatory agency an application for registration in such form and containing such information and documents as such appropriate regulatory agency may prescribe to be necessary or appropriate in furtherance of the purposes of this section.
On January 13, 2021, the OCC published a 60-day notice for this information collection, 86 FR 2739. No comments were received. Comments continue to be solicited on:
(a) Whether the information collections are necessary for the proper performance of the OCC's functions, including whether the information has practical utility;
(b) The accuracy of the OCC's estimates of the burden of the information collections, 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 collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection as required by the Paperwork Reduction Act of 1995 (PRA). An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning the renewal of an information collection titled, “Affiliate Marketing.”
Comments must be submitted on or before May 21, 2021.
Commenters are encouraged to submit comments by email, if
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You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection
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Shaquita Merritt, OCC Clearance Officer, (202) 649-5490, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from OMB for each collection of information that they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of title 44 requires Federal agencies to provide a 60-day notice in the
Twelve CFR 1022.20-1022.27 require financial institutions to issue notices informing consumers about their rights under section 214 of the FACT Act. Consumers use the notices to decide if they want to receive solicitations for marketing purposes or opt out. Financial institutions use consumers' opt-out responses to determine the permissibility of making a solicitation for marketing purposes.
If a person receives certain consumer eligibility information from an affiliate, the person may not use that information to solicit the consumer about its products or services, unless the consumer is given notice and a simple method to opt out of such use of the information, and the consumer does not opt out. Exceptions include a person using eligibility information: (1) To make solicitations to a consumer with whom the person has a pre-existing business relationship; (2) to perform services for another affiliate subject to certain conditions; (3) in response to a communication initiated by the consumer; or (4) to make a solicitation that has been authorized or requested by the consumer. A consumer's affiliate marketing opt-out election must be effective for a period of at least five years. Upon expiration of the opt-out period, the consumer must be given a renewal notice and an opportunity to renew the opt-out before information received from an affiliate may be used to make solicitations to the consumer.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Special Inspector General for Pandemic Recovery (SIGPR), Department of the Treasury.
Notice of new systems of records.
In accordance with the Privacy Act of 1974, the Department of the Treasury proposes to establish three new systems of records within its inventory of records systems, subject to the Privacy Act of 1974 as amended. This action is necessary to meet the requirements of the Privacy Act to publish in the
Submit comments on or before April 21, 2021. The new routine uses will be applicable on April 21, 2021.
Comments may be submitted to the Federal eRulemaking Portal electronically at
Comments will be made available for public inspection upon written request or by making an appointment. SIGPR will make such comments available for public inspection and copying at the above-listed location on official business days between 9 a.m. to 5 p.m. Eastern Time.
SIGPR was established by the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020. SIGPR has the duty to conduct, supervise, and coordinate audits, evaluations, and investigations of the making, purchase, management, and sale of loans, loan guarantees, and other investments made by the Secretary of the Treasury under programs established by the Secretary, as authorized by Section 4018(c) of the CARES Act, and the management by the Secretary of programs, as authorized by Section 4018(c) of the CARES Act. SIGPR's duties and responsibilities are set forth in Section 4018 of the CARES Act, and in the Inspector General Act of 1978, 5 U.S.C. app. 3. To facilitate SIGPR's audits, evaluations, investigations, and other operations to (a) promote economy, efficiency, and effectiveness in the administration of such programs; (b) prevent and detect fraud and abuse in the programs and operations within its jurisdiction; and (c) keep the head of the establishment and the Congress fully informed about problems and deficiencies relating to the administration of such programs and operations, and the necessity for and progress of corrective action, SIGPR plans to create the following systems of records:
Treasury has provided a report of this system of records to the Committee on Oversight and Government Reform of the U.S. House of Representatives, the Committee on Homeland Security and Governmental Affairs of the U.S. Senate, and the Office of Management and Budget (OMB), pursuant to 5 U.S.C. 552a(r) and OMB Circular A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,” dated December 23, 2016.
Department of the Treasury, Special Inspector General for Pandemic Recovery (SIGPR)—Audit and Evaluation Records .420
Unclassified.
Records are maintained at the Office of the Special Inspector General for Pandemic Recovery, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
Martinsburg Data Center, 250 Murall Drive, Kearneysville, WV 25430.
Memphis Data Center, 5333 Getwell Road, Memphis, TN 38118.
Other federal agencies and contractor-owned and -operated facilities.
Senior Advisor, Office of Audits, Special Inspector General for Pandemic Recovery, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
Section 4018 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020, 5 U.S.C. App. 3, and 5 U.S.C. 301.
The purpose of this system is to act as a management tool for SIGPR audit and evaluation projects and personnel, and to assist in conducting accurate and timely audits and evaluations.
The categories of individuals covered by the system are those who are the subject of, are associated with, or are witnesses referenced in, the audits and evaluations that SIGPR is authorized to conduct, supervise, and coordinate. The system may include records of auditors, evaluators, administrative support staff, and contractors.
SIGPR's Audit and Evaluations Records System contains information relevant and necessary to accomplish SIGPR's purpose specified in Section 4018 of the CARES Act Records in SIGPR's system are based on audits and evaluations SIGPR is authorized to conduct, supervise, and coordinate. These records may include, but are not limited to, issued audit and evaluation reports and follow-up review/reports of the implementation of any recommendation from a SIGPR audit and evaluation report, as well as working papers, which may include copies of correspondence, evidence, subpoenas, and other related documents collected, generated, or relied upon by the SIGPR Office of Audits and the Office of Evaluations during its official duties. These records may include, but are not limited to, the following:
• Individual and company names;
• Dates of birth;
• Social Security Numbers;
• Phone numbers;
• Email addresses;
• Regular mail addresses; and
• Other personally identifiable information, including employer identification numbers, system for award management numbers, taxpayer-identification numbers, bank account numbers, commercial and industry identification codes, and Dunn & Bradstreet universal numbers.
The records retained in SIGPR's Audit and Evaluations Records system have been and will be obtained through audits and evaluations SIGPR is authorized to conduct, supervise, and coordinate regarding the making, purchase, management, and sale of loans, loan guarantees, and other investments made by the Secretary of the Treasury under any program established by the Secretary under the CARES Act, and the management by the Secretary of any program established under the CARES Act.
In addition to those disclosures generally permitted under the Privacy Act of 1974, 5 U.S.C. 552a(b), records and/or information or portions thereof maintained as part of this system may be disclosed by SIGPR outside Treasury as a routine use pursuant to 5 U.S.C. 552a(b)(3), as follows:
(1) To the United States Department of Justice (“DOJ”) for the purpose of representing or providing legal advice to the Department of the Treasury and SIGPR (the Department/SIGPR) in a proceeding before a court, adjudicative body, or other administrative body before which the Department/SIGPR is authorized to appear, when such proceeding involves:
(a) The Department/SIGPR or any component thereof;
(b) Any employee of the Department/SIGPR in his or her official capacity;
(c) Any employee of the Department/SIGPR in his or her individual capacity where the Department of Justice or the Department/SIGPR has agreed to represent the employee; or
(d) The United States, when the Department/SIGPR determines that litigation is likely to affect the Department/SIGPR or any of its components, and the use of such records by the DOJ is deemed by the DOJ or the Department/SIGPR to be relevant and necessary to the litigation, provided that the disclosure is compatible with the purpose for which records were collected.
(2) To an appropriate federal, state, local, tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, background investigation, license, contract, grant, or other benefit, or if the information is relevant and necessary to a Treasury decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant or other benefit and when the disclosure is appropriate to the proper performance of the official duties of the person making the request;
(3) To a Congressional office in response to an inquiry made at the request of the individual to whom the record pertains;
(4) To the National Archives and Records Administration Archivist (or the Archivist's designee), pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906;
(5) To appropriate agencies, entities, and persons when (1) the Department of the Treasury and/or SIGPR suspects or has confirmed that there has been a breach of the system of records; (2) the Department of the Treasury and/or SIGPR has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Department of the Treasury and/or SIGPR (including its information systems, programs, and operations), the federal government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department of the Treasury's and/or SIGPR's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm;
(6) To another federal agency or federal entity, when the Department of the Treasury and/or SIGPR determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the federal government, or national security, resulting from a suspected or confirmed breach;
(7) To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations; and
(8) To a court, magistrate, or administrative tribunal (a) in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of discovery, litigation, or settlement negotiations; (b) in response to a subpoena, where relevant or potentially relevant to a proceeding; or (c) in connection with civil and criminal law proceedings;
(9) To any source, either private or governmental, to the extent necessary to elicit information relevant to a SIGPR audit, evaluation, or investigation; and
(10) To persons engaged in conducting and reviewing internal and external peer reviews of SIGPR to ensure that adequate internal safeguards and management procedures exist within any office that had received law enforcement authorization or to ensure that auditing and evaluation standards applicable to government audits and evaluations by the Comptroller General of the United States and/or Council of the Inspectors General on Integrity and Efficiency are applied and followed.
Records may be stored electronically or on paper.
Records may be retrieved by a search of any of: (1) The name of the subject of the audit, evaluation, auditor, evaluator, support staff, or contractor; (2) other personally identifiable information; or (3) case number.
These records are currently not eligible for disposal. SIGPR is in the process of requesting approval from the National Archives and Records Administration of records disposition schedules concerning all records in this system of records.
Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable Treasury automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to individuals who need to know the information to perform their official duties and have appropriate clearances.
See “Notification Procedures” below.
See “Notification Procedures” below.
This system of records may contain records that are exempt from the notification, access, and contesting records requirements pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). However, SIGPR will consider individual requests to determine whether information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendices A-M. Requests for information and specific guidance on where to send requests for records may be addressed to: General Counsel, SIGPR, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform to the Privacy Act regulations set forth in 31 CFR part 1.36. You must first verify your identity, meaning that you must provide your full name, current address, date, and birthplace. You must sign your request. Your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In addition, you should:
• Provide an explanation of why you believe SIGPR would have information on you;
• Specify when you believe the records would have been created; and
• Provide any other information that will help SIGPR determine if it may have responsive records.
In addition, if your request is seeking records pertaining to another living individual, you
This information will help SIGPR to conduct an effective search and to prevent your request from being denied due to a lack of specificity or a lack of compliance with applicable regulations.
The Secretary of Treasury has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). See 31 CFR 1.36. Exempt materials from other systems of records may become part of the case records in this system of records. If copies of exempt records from those other systems of records are entered into these case records, SIGPR claims the same exemptions for the records as claimed in the original primary systems of records of which they are a part.
None.
U.S. Department of the Treasury, Special Inspector General for Pandemic Recovery (SIGPR)—Case Management System and Investigative Records .421
Unclassified.
Records are maintained at the Special Inspector General for Pandemic Recovery, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
Martinsburg Data Center, 250 Murall Drive, Kearneysville, WV 25430.
Memphis Data Center, 5333 Getwell Road, Memphis, TN 38118.
Data Center, 300 E Street SW, Washington, DC 20546.
Other federal agencies and contractor-owned and -operated facilities.
Assistant Inspector General, Office of Investigations, Special Inspector General for Pandemic Recovery, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
SIGPR's authority to maintain this records system is based on Section 4018 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020, 5 U.S.C. App. 3, and 5 U.S.C. 301.
The purpose of this Case Management System and Investigative Records system is to maintain information relevant to complaints received by SIGPR and collected as part of leads, inquiries, SIGPR proactive efforts, and investigations.
The categories of individuals covered by the system are subjects or potential subjects of investigative activities, witnesses involved in investigative activities, and complainants/whistleblowers who contact the SIGPR Hotline during investigative activities that SIGPR is authorized to conduct, supervise, and coordinate. The system may include records of investigators, analysts, administrative support staff, and contractors.
The Case Management System and Investigative Records system contains information relevant and necessary to accomplish SIGPR's purpose specified in Section 4018 of the CARES Act, other relevant regulations, or Executive Orders. Specific records may include the following: (1) Reports of investigations, which may include, but are not limited to, witness statements, affidavits, transcripts, police reports, photographs, documentation concerning requests and approval for consensual telephone and consensual non-telephone monitoring, the subject's prior criminal record, vehicle maintenance records, medical records, accident reports, insurance policies, police reports, and other exhibits and documents collected during an investigation; (2) status and disposition information concerning a complaint or investigation, including prosecutive action and/or administrative action; (3) complaints or requests to investigate, including correspondence and verbal communications with Hotline complainants/whistleblowers; (4) subpoenas and evidence obtained in response to a subpoena; (5) evidence logs; (6) pen registers; (7) correspondence; (8) records of seized money and/or property; (9) reports of laboratory examination, photographs, and evidentiary reports; (10) digital image files of physical evidence;
(11) documents generated for purposes of SIGPR's undercover activities; (12) documents pertaining to the identity of confidential informants; and (13) other documents and records collected from other government entities, private organizations, and individuals, and/or generated during the course of official duties. These records may include the following:
• Individual and company names;
• Dates of birth;
• Social Security Numbers;
• Phone numbers;
• Email addresses;
• Regular mail addresses; and
• Other personally identifiable information, including employer identification numbers, the system for award management numbers, taxpayer-identification numbers, bank account numbers, commercial and industry identification codes, and Dunn & Bradstreet universal numbers.
Subject individuals; individuals and organizations that have pertinent knowledge about a subject individual or corporate entity; those authorized by an individual to furnish information; confidential informants and Federal Bureau of Investigation and other federal, state, local, and foreign entities.
In addition to those disclosures generally permitted under the Privacy Act of 1974, 5 U.S.C. 552a(b), records and/or information or portions thereof maintained as part of this system may be disclosed outside Treasury as a routine use pursuant to 5 U.S.C. 552a(b)(3), as follows: (1) To the U. S. Department of Justice (“DOJ”), for the purpose of representing or providing legal advice to the U.S. Department of the Treasury (Department)/SIGPR in a proceeding before a court, adjudicative body, or other administrative body before which the Department/SIGPR is authorized to appear, when such proceeding involves:
(a) The Department/SIGPR or any component thereof;
(b) Any employee of the Department/SIGPR in his or her official capacity;
(c) Any employee of the Department/SIGPR in his or her individual capacity where the DOJ or the Department/SIGPR has agreed to represent the employee; or
(d) The United States, when the Department/SIGPR determines that litigation is likely to affect the Department/SIGPR or any of its components, and the use of such records by the DOJ is deemed by the DOJ or the Department/SIGPR to be relevant and necessary to the litigation,
(2) To an appropriate federal, state, local, tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, background investigation, license, contract, grant, or other benefit, or if the information is relevant and necessary to a Treasury decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license grant or other benefit and when disclosure is appropriate to the proper performance of the official duties of the person making the request;
(3) To a Congressional office in response to an inquiry made at the request of the individual to whom the record pertains;
(4) To the National Archives and Records Administration Archivist (or the Archivist's designee) pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906;
(5) To appropriate agencies, entities, and persons when (1) the Department of the Treasury and/or SIGPR suspects or has confirmed that there has been a breach of the system of records; (2) the Department of the Treasury and/or SIGPR has determined that, as a result of the suspected or confirmed breach, there is a risk of harm to individuals, the Department of the Treasury and/or SIGPR (including its information systems, programs, and operations), the federal government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department of the Treasury's and/or SIGPR's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm;
(6) To another federal agency or federal entity, when the Department of the Treasury and/or SIGPR determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the federal government, or national security, resulting from a suspected or confirmed breach;
(7) To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations; and
(8) To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of discovery, litigation, or settlement negotiations, in response to a subpoena, where relevant or potentially relevant to a proceeding, or in connection with civil and criminal law proceedings;
(9) To any source, either private or governmental, to the extent necessary to elicit information relevant to a SIGPR audit, evaluation, or investigation; and
(10) To persons engaged in conducting and reviewing internal and external peer reviews of SIGPR to ensure that adequate internal safeguards and management procedures exist within any office that had received law enforcement authorization or to ensure that auditing and evaluation standards applicable to government audits and evaluations by the Comptroller General of the United States and/or Council of the Inspectors General on Integrity and Efficiency are applied and followed.
Records may be stored electronically or on paper.
Records may be retrieved by name, personally identifiable information, and/or case number.
These records are currently not eligible for disposal. SIGPR is in the process of requesting approval from the National Archives and Records Administration of records disposition schedules concerning all records in this system of records.
Records in this system are safeguarded in accordance with applicable rules and policies. Records security is commensurate with the risk and magnitude of the harm resulting from the loss, misuse, or unauthorized access to, or modification of, the information in SIGPR's records. SIGPR's safeguards ensure that its records system and applications operate effectively and provide appropriate confidentiality, integrity, and availability through cost-effective management, personnel, operational, and technical controls. The safeguards further ensure the security and confidentiality of the records in its system and help protect against anticipated threats or hazards. All individuals granted access to SIGPR's system of records need to know the information to perform their official duties and have the appropriate training and clearances.
See “Notification Procedures” below.
See “Notification Procedures” below.
This system of records may contain records that are exempt from the notification, access, and contesting records requirements pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). However, SIGPR will consider individual requests to determine whether information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendices A-M. Requests for information and specific guidance on where to send requests for records may be addressed to: General Counsel, SIGPR, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform with the Privacy Act regulations set forth in 31 CFR part 1.36. You must first verify your identity, meaning that you must provide your full name, current address, date, and birthplace. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In addition, you should:
• Provide an explanation of why you believe SIGPR would have information on you;
• Specify when you believe the records would have been created; and
• Provide any other information that will help SIGPR determine if it may have responsive records.
In addition, if your request is seeking records pertaining to another living
This information will help SIGPR to conduct an effective search and to prevent your request from being denied due to a lack of specificity or a lack of compliance with applicable regulations.
The Secretary of Treasury has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). Exempt materials from other systems of records may become part of the case records in this system of records. If copies of exempt records from those other systems of records are entered into these case records, SIGPR claims the same exemptions for the records as claimed in the original primary systems of records of which they are a part.
None.
Department of the Treasury, Special Inspector General for Pandemic Recovery (SIGPR)—SIGPR Legal Records .423
Unclassified.
Records are maintained at the Special Inspector General for Pandemic Recovery, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
Martinsburg Data Center, 250 Murall Drive, Kearneysville, WV 25430.
Memphis Data Center, 5333 Getwell Road, Memphis, TN 38118.
Other federal agencies and contractor-owned and -operated facilities.
Office of General Counsel, Special Inspector General for Pandemic Recovery, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
Section 4018 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020, 5 U.S.C. App. 3, and 5 U.S.C. 301.
The purpose of this system is to: (1) Assist SIGPR attorneys in providing legal advice to the agency on a wide variety of legal issues; (2) collect information about any individual who is, or will be, in litigation with the agency, as well as related to the attorneys representing the plaintiff(s)' and defendant(s)' response to claims of employees, former employees, or other individuals; (3) assist in settlement of claims against the government, and (4) represent SIGPR in litigation.
Persons identified in files maintained by the SIGPR Office of General Counsel, which include attorneys, litigants, and other claimants against SIGPR and its contractors; persons who are the subject of claims by SIGPR and persons against whom SIGPR considered asserting claims; witnesses and third parties to claims or litigation; SIGPR's contractors and potential contractors; SIGPR employees subject to garnishment or assignments; and SIGPR employees and contractors who use Alternate Dispute Resolution (ADR).
Records concerning legal matters include (1) materials assigned to the SIGPR Office of General Counsel and that are related to litigation and all other claims against or by SIGPR and its contractors; (2) SIGPR contracts and related materials; and (3) materials pertaining to ADR. Litigation and claim records may include, but are not limited to, correspondence and pleadings (such as complaints, answers, counterclaims, motions, depositions, court orders and briefs). Records in this system include, but are not limited to, documents such as accident reports, inspection reports, investigation reports, audit reports, evaluation reports, personnel files, contracts, consultant agreements, reports about criminal matters of interest to SIGPR, Personnel Security Review Board documents, medical records, photographs, telephone records, correspondence, memoranda, and other related documents. These records may include materials that establish or document key information related to individuals or entities. such as:
• Individual and company names;
• Dates of birth;
• Social Security Numbers;
• Phone numbers;
• Email addresses;
• Regular mail addresses; and
• Other personal identifiable information, including employer identification numbers, system for award management numbers, taxpayer identification numbers, bank account numbers, commercial and industry identification codes, and Dunn & Bradstreet universal numbers.
Sources of records include subject individuals, inspection reports, other agencies, SIGPR Office of General Counsel attorneys, other agency officers and staff, contractors, investigators, evaluators, auditors, and any person who may provide data, materials or information that SIGPR Office of General Counsel is authorized to collect concerning potential or actual litigation or claims concerning SIGPR or a SIGPR employee.
In addition to those disclosures generally permitted under the Privacy Act of 1974, 5 U.S.C. 552a(b), records and/or information, or portions thereof, maintained as part of this system may be disclosed outside Treasury as a routine use pursuant to 5 U.S.C. 552a(b)(3), as follows: (1) To the United States Department of Justice (“DOJ”), for the purpose of representing or providing legal advice to the U.S. Department of Treasury (Department)/SIGPR in a proceeding before a court, adjudicative body, or other administrative body before which the Department/SIGPR is authorized to appear, when such proceeding involves:
(a) The Department/SIGPR or any component thereof;
(b) Any employee of the Department/SIGPR in his or her official capacity;
(c) Any employee of the Department/SIGPR in his or her individual capacity where DOJ or the Department/SIGPR has agreed to represent the employee; or
(d) The United States, when the Department/SIGPR determines that litigation is likely to affect the Department/SIGPR or any of its components, and the use of such records by the DOJ is deemed by the DOJ or the Department/SIGPR to be relevant and necessary to the litigation, provided that the disclosure is compatible with the purpose for which records were collected.
(2) To an appropriate federal, state, local, tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, background investigation, license, contract, grant, or other benefit, or if the information is relevant and necessary to a Treasury decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of
(3) To a Congressional office in response to an inquiry made at the request of the individual to whom the record pertains;
(4) To the National Archives and Records Administration Archivist (or the Archivist's designee) pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906;
(5) To appropriate agencies, entities, and persons when (1) the Department of the Treasury and/or SIGPR suspects or has confirmed that there has been a breach of the system of records; (2) the Department of the Treasury and/or SIGPR has determined that, as a result of the suspected or confirmed breach, there is a risk of harm to individuals, the Department of Treasury and/or SIGPR (including to their information systems, programs, and operations), the federal government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department of the Treasury's and/or SIGPR's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm;
(6) To another federal agency or federal entity, when the Department of the Treasury and/or SIGPR determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the federal government, or national security, resulting from a suspected or confirmed breach; and
(7) To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations; and
(8) To a court, magistrate, or administrative tribunal in the course of presenting evidence or filing pleadings; to opposing counsel or witnesses in the course of discovery, litigation, or settlement negotiations, or in response to a subpoena, or where relevant or potentially relevant to a proceeding or in connection with civil or criminal law proceedings.
Records may be stored electronically and/or as paper records.
Records are retrievable by name, case name, claim name, or assigned identifying number, in accordance with an appropriate classification system.
These records are currently not eligible for disposal. SIGPR is in the process of requesting approval from the National Archives and Records Administration of records disposition schedules concerning all records in this system of records.
Records in this system are safeguarded in accordance with applicable rules and policies. Records security is commensurate with the risk and magnitude of the harm resulting from the loss, misuse, or unauthorized access to or modification of the information contained in SIGPR's records. SIGPR's safeguards ensure that its records system and applications operate effectively and provide appropriate confidentiality, integrity, and availability through cost-effective management, personnel, operational, and technical controls. The safeguards further ensure the security and confidentiality of the records in its system and help protect against anticipated threats or hazards. All individuals granted access to SIGPR's records system need to know the information to perform their official duties and have the appropriate training and clearances.
See “Notification Procedures” below.
See “Notification Procedures” below.
This system of records may contain records that are exempt from the notification, access, and contesting records requirements pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). However, SIGPR will consider individual requests to determine whether information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendices A-M. Requests for information and specific guidance on where to send requests for records may be addressed to: General Counsel, SIGPR, 2051 Jamieson Avenue, Suite 600, Alexandria, VA 22314.
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform with the Privacy Act regulations set forth in 31 CFR part 1.36. You must first verify your identity, meaning that you must provide your full name, current address, date of birth, and birthplace. You must sign your request, and your signature must be either notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In addition, you must:
• Provide an explanation of why you believe SIGPR would have information on you;
• Specify when you believe the records would have been created; and
• Provide any other information that will help SIGPR determine if it may have responsive records.
If you are requesting records about another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records. This information will help SIGPR to conduct an effective search and to prevent your request from being denied due to a lack of specificity or a lack of compliance with applicable regulations.
The Secretary of Treasury has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). See 5 CFR part 9301. Exempt materials from other systems of records may become part of the case records in this system of records. If copies of exempt records from those other systems of records are entered into these case records, SIGPR claims the same exemptions for the records as claimed in the original primary systems of records of which they are a part.
None.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App.2, that the Veterans' Advisory Committee on Rehabilitation (VACOR) will meet virtually, April 7 and April 8, 2021 from 11:00 a.m. to 3:30 p.m. EST on both days. The virtual meeting sessions are open to the public.
The purpose of the Committee is to provide advice to the Secretary of VA on the rehabilitation needs of Veterans with disabilities and on the administration of VA's Veteran rehabilitation programs. The Committee members will receive briefings on employment programs and services designed to enhance the delivery of services for the rehabilitation potential of Veterans and discuss potential recommendations.
Time will be allocated for receiving oral comments from the public. Members of the public may submit written comments for review by the Committee to Latrese Thompson, Designated Federal Officer, Veterans Benefits Administration (28), 810 Vermont Avenue NW, Washington, DC 20420 or at
Meeting number (access code): 199 194 0465.
Meeting password: CmdYRWM?737.
+14043971596,1991940465## USA Toll Number.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS's Office of Protected Resources (OPR) has received a request from NMFS's Pacific Islands Fisheries Science Center (PIFSC) for a Letter of Authorization (LOA) to take marine mammals incidental to fisheries research conducted in multiple specified geographical regions, over the course of five years from the date of issuance. As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
Comments and information must be received no later than April 21, 2021.
You may submit comments on this document, identified by NOAA-NMFS-2021-0026, by the following method:
• Electronic submission: Submit all public comments via the Federal e-Rulemaking Portal. Go to
Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401.
A copy of PIFSC's application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at:
This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361
We received an application from the PIFSC requesting five-year regulations and LOA to take multiple species of marine mammals. Take would occur by Level B harassment incidental to the use of active acoustic devices, as well as by visual disturbance of pinnipeds, and by Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear. Please see “Background” below for definitions of harassment.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the “Proposed Mitigation” section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent LOAs. As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.
Following is a summary of the major provisions of this proposed rule regarding PIFSC fisheries research activities. These measures include:
• Monitor the sampling areas to detect the presence of marine mammals before and during deployment of certain research gear;
• Delay setting or haul in gear if marine mammal interaction may occur;
• Haul gear immediately if marine mammals may interact with gear; and
• Required implementation of the mitigation strategy known as the “move-on rule mitigation protocol” which incorporates best professional judgment, when necessary during certain research fishing operations.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 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.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS has prepared a draft Environmental Assessment (EA;
On November 30, 2015, we received an adequate and complete application from PIFSC requesting authorization to take small numbers of marine mammals incidental to fisheries research activities. On December 7, 2015 (80 FR 75997), we published a notice of receipt of PIFSC's application in the
PIFSC proposes to conduct fisheries research using trawl gear used at various levels in the water column, hook-and-line gear (including longlines with multiple hooks, bottomfishing, and trolling), and deployed instruments (including various traps). If a marine mammal interacts with gear deployed by PIFSC, the outcome could potentially be Level A harassment, serious injury (
PIFSC requests authorization to take individuals of 15 species by Level A harassment, serious injury, or mortality (hereafter referred to as M/SI) and of 25 species by Level B harassment. The proposed regulations would be valid for five years from the date of issuance.
The Federal Government has a responsibility to conserve and protect living marine resources in U.S. waters and has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside the United States. NOAA has the primary responsibility for managing marine finfish and shellfish species and their habitats, with that responsibility delegated within NOAA to NMFS.
In order to direct and coordinate the collection of scientific information needed to make informed fishery management decisions, Congress created six regional fisheries science centers, each a distinct organizational entity and the scientific focal point within NMFS for region-based Federal fisheries-related research. This research is aimed at monitoring fish stock recruitment, abundance, survival and biological rates, geographic distribution of species and stocks, ecosystem process changes, and marine ecological research. The PIFSC is the research arm of NMFS in the Pacific Islands region of the United States. The PIFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the geographic research area described below and provides scientific information to support the Western Pacific Fishery Management Council and other domestic and international fisheries management organizations.
The PIFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. PIFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. Such research may also be conducted by cooperating scientists on non-NOAA vessels when the PIFSC helps fund the research. The PIFSC proposes to administer and conduct approximately 19 survey programs over the five-year period, within four separate research areas (some survey programs are conducted across more than one research area; see Table 1-1 in PIFSC's application). The gear types used fall into several categories: Towed trawl nets fished at various levels in the water column, hook-and-line gear (including longline gear), traps, and other instruments. Only use of trawl nets, longlines, and deployed instruments and traps are likely to result in interaction with marine mammals via entanglement. Many of these surveys also use active acoustic devices that may result in Level B harassment.
The specified activity may occur at any time during the five-year period of validity of the proposed regulations. Dates and duration of individual surveys are inherently uncertain, based on congressional funding levels for the PIFSC, weather conditions, or ship contingencies. In addition, cooperative
The PIFSC conducts research in the Pacific Islands within four research areas: The Hawaiian Archipelago Research Area (HARA), the Mariana Archipelago Research Area (MARA), the American Samoa Archipelago Research Area (ASARA), and the Western and Central Pacific Research Area (WCPRA). The first three research areas are considered to extend approximately 24 nautical miles (nmi; 44.5 kilometers (km)) from the baseline of the respective archipelagos (
In general, the Pacific region encompassing the PIFSC research areas is a complex oceanographic system. The equatorial area has relatively steady weather patterns and surface currents, but these can change based on ocean-atmospheric conditions. The El Niño-Southern Oscillation (ENSO) largely drives the climate in the tropical Pacific (Wood
Habitat throughout the four specified geographical regions include seamounts, atolls, reef habitat, and pelagic waters. Oceanic islands generally lack an extensive shelf area of relatively shallow water extending beyond the shoreline. Instead, most often have a deep reef slope, angled between 45 and 90 degrees toward the ocean floor. Species compositions along deep reef slopes, banks, and seamounts all can vary widely based on depth, light, temperature, and substrate.
Howland and Baker Islands are uninhabited U.S. possessions in the Phoenix Island Archipelago. Baker Island is located approximately 21 km north of the equator and approximately 2,963 km to the southwest of Honolulu. It is a coral-topped seamount surrounded by a narrow fringing reef that drops steeply close to shore.
Jarvis Island, a relatively flat, sandy coral island, is approximately 2,092 km south of Honolulu and 1,609 km east of Baker Island. Although the westward-flowing South Equatorial Current is the primary surface current, the eastward-flowing Equatorial Undercurrent drives strong, topographically influenced equatorial upwelling in these islands. However, species diversity is much lower than in the Northern Line Islands, reflecting the influence of primary currents that originate in the species-poor eastern Pacific. Jarvis Island is considered part of the Southern Line Islands, but is biogeographically more similar to Baker and Howland Islands as its primary influence is the South Equatorial Current.
Johnston Atoll lies approximately 800 km south of French Frigate Shoals in the NWHI. Johnston Atoll, a coral reef and lagoon complex on a relatively flat, shallow platform, shares biogeographic affinities with the Hawaiian Archipelago, with evidence of larval transport between the two. Because of faunal affinities and because both occur in the oceanic North Pacific Transition Zone Province (Longhurst, 1998), the two areas may be considered part of the same ecoregion. Johnston Atoll has been used for military purposes since World War II.
Kingman Reef consists of a series of fringing reefs around a central lagoon that does not have any emergent land to support vegetation.
Wake Atoll, comprised of three different islets, is located about 3,380 km west of Hawaii, at the northern end of the Marshall Islands archipelago in the North Pacific Tropical Gyre Province (Longhurst, 1998). Wake Atoll has primarily been used for military and emergency aviation purposes since World War II.
Palmyra Atoll (1,956 km south of Honolulu) and Kingman Reef (61 km northwest of Palmyra) are part of the Northern Line Islands (other islands in this archipelago belong to the Republic of Kiribati), and are sporadically influenced by the North Equatorial Countercurrent, which flows from high biodiversity regions of the western Pacific. Palmyra Atoll consists of 52 islets surrounding three central lagoons.
The Federal Government has a trust responsibility to protect living marine resources in waters of the United States. These waters extend to 200 nmi from the shoreline and include the EEZ. The U.S. government has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside of the EEZ (
Within NMFS, six regional fisheries science centers direct and coordinate the collection of scientific information needed to inform fisheries management decisions. Each science center is a distinct entity and is the scientific focal point for a particular region. PIFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the Pacific Islands. PIFSC provides scientific information to support the Western Pacific Fishery Management Council and other domestic and international fisheries management organizations.
The PIFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. PIFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels, and some PIFSC-funded research is conducted by cooperative scientists. The PIFSC proposes to administer and conduct approximately 19 survey programs over the five-year period (see Table 1.1 in PIFSC's application).
Given the vast geographic scope of the PIFSC region of responsibility, not all areas will be visited each year (nor will all surveys be conducted each year) within the five-year period the proposed regulations and LOA would be effective. Instead, surveys will rotate depending on funding, random sampling design, or immediate research needs. Research surveys are generally focused on one research area every year and that research area is visited every second, third, or fourth year. For example, over the course of five years, this research cycle might be presented as HARA→ASARA→MARA→WCPRA→HARA. This cycle inherently includes some overlap of any one research area (
The fishing gear types used by PIFSC fall into several categories: towed nets fished at various levels in the water column, hook-and-line gear, and traps. The PIFSC also deploys a variety of moored instruments. The use of trawl nets and longlines is likely to result in interaction with marine mammals. In addition, the PIFSC anticipates that its deployment of instruments and traps may result in the entanglement of some animals. Many of the proposed surveys also use active acoustic devices that may result in Level B harassment.
Surveys may be conducted aboard NOAA-operated research vessels (R/V), including the
In the following discussion, we summarily describe various gear types used by PIFSC, with reference to specific fisheries and ecosystem research activities conducted by the PIFSC. This is not an exhaustive list of gear and/or devices that may be utilized by PIFSC but is representative of gear categories and is complete with regard to all gears with potential for interaction
The trawl net is usually deployed over the stern of the vessel and attached with two cables (or warps) to winches on the deck of the vessel. The cables are played out until the net reaches the fishing depth. Trawl vessels typically travel at speeds of 2-5 knots (kt) while towing the net for time periods up to several hours. The duration of the tow depends on the purpose of the trawl, the catch rate, and the target species. At the end of the tow the net is retrieved and the contents of the codend are emptied onto the deck. For research purposes, the speed and duration of the tow and the characteristics of the net are typically standardized to allow meaningful comparisons of data collected at different times and locations. Active acoustic devices (described later) incorporated into the research vessel and the trawl gear monitor the position and status of the net, speed of the tow, and other variables important to the research design.
PIFSC research trawling activities utilize pelagic (or midwater) and surface trawls, which are designed to operate at various depths within the water column but not to contact the seafloor. Commercial midwater trawls may be 75-136 m in width with opening height of 10-20 m; however, PIFSC uses smaller research trawls. These include a modified Cobb midwater trawl, the Isaacs-Kidd (IK) trawl, and various other small-mesh nets used as surface trawls. The Cobb trawl is generally used to target snapper and grouper species within the 0-250 m depth range, and has a mouth opening of 686 m
A commercial longline can be miles long and have thousands of hooks attached. Although longlines used for research surveys are often shorter, the PIFSC uses some commercial-scale longlines,
The time period between deployment and retrieval of the longline gear is the soak time. Soak time is an important parameter for calculating fishing effort. For commercial fisheries the goal is to optimize the soak time in order to maximize catch of the target species while minimizing the bycatch rate and minimizing damage to target species that may result from predation by sharks or other predators. PIFSC pelagic longline soak times range from 600-1,800 min.
1. Neuston nets are used to collect zooplankton that live in the top few centimeters of the sea surface (the neuston layer). These nets have a rectangular opening usually two or three times as wide as deep (
2. Ring nets are used to capture plankton with vertical tows. These nets consist of a circular frame and a cone-shaped net with a collection jar at the codend. The net, attached to a labeled dropline, is lowered into the water while maintaining the net's vertical position. When the desired depth is reached, the net is pulled straight up through the water column to collect the sample. The most common zooplankton ring net is one meter in diameter with 0.333 millimeter mesh openings, also known as a `meter net.'
3. Plankton drop nets are small handheld nets made up of fine mesh attached to a metal hoop with a long rope attached for retrieval. These nets are used for stationary sampling of the surrounding water.
4. Bongo nets are towed through the water at an oblique angle to sample plankton over a range of depths. Similar to ring nets, these nets typically have a cylindrical section coupled to a conical portion that tapers to a detachable codend constructed of nylon mesh. During each plankton tow, the bongo nets are deployed to depth and are then retrieved at a controlled rate so that the volume of water sampled is uniform across the range of depths. A collecting bucket, attached to the codend of the net, is used to contain the plankton sample. Some bongo nets can be opened and closed using remote control to enable the collection of samples from particular depth ranges. A group of depth-specific bongo net samples can be used to establish the vertical distribution of zooplankton species in the water column at a site. Bongo nets are generally used to collect zooplankton for research purposes and are not used for commercial harvest.
Lobster traps are deployed in the NWHI to study the life history and population dynamics of lobster. The lobster traps consist of one string per site, with 8 or 20 traps per string, separated by 20 fathoms of ground line. The traps are deployed within two separate depth regimes: 10-20 or 21-35 fathoms.
Kona crab traps are nylon, with meshing spaced 2
Settlement traps are cylindrical with dimensions up to 3 m long and 2 m diameter. The trap frame is composed of semi-rigid plastic mesh of up to 5 cm mesh size. Folded plastic of up to 10 cm mesh is stuffed inside as settlement habitat, and cylinder ends are then pinched shut. The traps are clipped throughout the water column onto a vertical line anchored on bottom at up to 400 m, supported by a surface float.
PIFSC also uses various other platforms, including gliders, towed systems, and seafloor or moored packages, to conduct passive acoustic monitoring, collect oceanographic data, and collect photographic/video data, among other things. Many such deployments require the use of mooring lines, including the Bottom Camera system (BotCam), Modular Underwater Survey System (MOUSS), Baited Remote Underwater Video System (BRUVS), Underwater Sound Playback System, and High-Frequency Acoustic Recording (HARP) package.
Table 1.1 of the PIFSC's application provide detailed information of all surveys planned by PIFSC; full detail is not repeated here. Below, we provide brief summaries of a selection of surveys using gear expected to have potential for marine mammal interaction (Table 1). Many of these surveys also use small trawls, plankton nets, gear deployed by hand by divers, and/or other gear; however, only gear with likely potential for marine mammal interaction is described. These summaries illustrate projected annual survey effort in the different research areas for those gears that we believe present the potential for marine mammal interaction but are intended only to provide a sense of the level of effort, and actual level of effort may vary from year to year. Gear specifications vary; please see Table 1.1
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)) and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa), while the received level is the SPL at the listener's position (referenced to 1 μPa).
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average. Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels. This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures. Peak sound pressure (also referred to as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous sound pressure measurable in the water at a specified distance from the source and is represented in the same units as the rms sound pressure (dB re 1 μPa).
Sound exposure level (SEL; represented as dB re 1 μPa
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams (as for the sources considered here) or may radiate in all directions (omnidirectional sources). The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following paragraphs). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
A wide range of active acoustic sources are used in PIFSC fisheries surveys for remotely sensing bathymetric, oceanographic, and biological features of the environment. Most of these sources involve relatively high frequency, directional, and brief repeated signals tuned to provide sufficient focus and resolution on specific objects. PIFSC also uses passive listening sensors (
Mid- and high-frequency underwater acoustic sources typically used for scientific purposes operate by creating an oscillatory overpressure through rapid vibration of a surface, using either electromagnetic forces or the piezoelectric effect of some materials. A vibratory source based on the piezoelectric effect is commonly referred to as a transducer. Transducers are usually designed to excite an acoustic wave of a specific frequency, often in a highly directive beam, with the directional capability increasing with operating frequency. The main parameter characterizing directivity is the beam width, defined as the angle subtended by diametrically opposite “half power” (−3 dB) points of the main lobe. For different transducers at a single operating frequency the beam
The types of active sources employed in fisheries acoustic research and monitoring, based largely on their relatively high operating frequencies and other output characteristics (
Acoustic sources present on most PIFSC fishery research vessels include a variety of single, dual, and multi-beam echosounders (many with a variety of modes), sources used to determine the orientation of trawl nets, and several current profilers with lower output frequencies that overlap with hearing ranges of certain marine mammals (
We now describe specific acoustic sources used by PIFSC. The acoustic system used during a particular survey is optimized for surveying under specific environmental conditions (
(1)
(2)
(3)
An ADCP anchored to the seafloor can measure current speed not just at the bottom, but at equal intervals to the surface. An ADCP instrument may be anchored to the seafloor or can be mounted to a mooring or to the bottom of a boat. ADCPs that are moored need an anchor to keep them on the bottom, batteries, and a data logger. Vessel-mounted instruments need a vessel with power, a shipboard computer to receive the data, and a GPS navigation system so the ship's movements can be subtracted from the current velocity data. ADCPs operate at frequencies between 75 and 300 kHz.
(4)
We have reviewed PIFSC's species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of PIFSC's application, instead of reprinting the information here (note that PIFSC provides additional information regarding marine mammal observations around the Main Hawaiian Islands in Table 3.3 of their application, including information about group size and seasonality). Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR;
Table 3 lists all species with expected potential for occurrence in the specified geographical regions where PIFSC proposes to conduct the specified activity and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow the Society for Marine Mammalogy Committee on Taxonomy (2020). PBR, 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, is discussed in greater detail later in this document (see “Negligible Impact Analysis”).
Stocks are not designated for most species in areas of the specified geographical regions outside of the Hawaiian EEZ. Therefore, while all species with expected potential for occurrence in the specified geographical regions are listed in Table 3, the listed stocks are in most cases specific to the Hawaiian EEZ. The only exceptions are NMFS-designated stocks for the humpback whale, rough-toothed dolphin, spinner dolphin, and false killer whale in American Samoa (animals belonging to these stocks would occur in the ASARA), and a false killer whale stock designated for Palmyra Atoll (animals belonging to this stock would occur in the WCPRA). With the exception of the humpback whale, which is discussed in greater detail following Table 3, and the aforementioned Palmyra Atoll stock of false killer whale, animals of any species occurring in the MARA or areas of the WCPRA outside of the Hawaiian EEZ and American Samoa EEZ would not be part of any NMFS-designated stock. Aside from the four species listed above, animals of any species occurring in the American Samoa EEZ would not be part of any NMFS-designated stock. As a reminder, the HARA, MARA, and ASARA are considered to include waters of the contiguous zone around these archipelagoes (
Marine mammal abundance estimates presented in this document represent the total number of individuals that
Twenty-six species (with 46 managed stocks; no stock is designated for Deraniyagala's beaked whale) are considered to have the potential to co-occur with and potentially be taken by PIFSC activities. Species that could potentially occur in the research areas but are not expected to have the potential for interaction with PIFSC research gear or that are not likely to be harassed by PIFSC's use of active acoustic devices are described briefly but omitted from further analysis. These include extralimital species, which are species that do not normally occur in a given area but for which there are one or more occurrence records that are considered beyond the normal range of the species. Extralimital species or stocks include the North Pacific right whale (
Within western and central Pacific waters, three DPSs may occur: The Western North Pacific (WNP) DPS (endangered), Hawai'i DPS (not listed), and Oceania DPS (not listed). Whales encountered in the HARA would be from the Hawai'i DPS; whales encountered in the MARA from the WNP DPS; and whales encountered in the ASARA from the Oceania DPS. While not possible to know in advance the identity of whales encountered in the WCPRA, in reality the DPS identity would likely be determined based on proximity to either the HARA, MARA, or ASARA. PIFSC has requested authorization of humpback whale take by M/SI only for the CNP stock (
With regard to abundance, an updated analysis of data from the Structure of Populations, Levels of Abundance and Status of Humpback Whales in the North Pacific (SPLASH) study provided an estimate of 21,808 (CV = 0.04) humpback whales in the North Pacific Ocean (Barlow
In winter, most humpback whales occur in the subtropical and tropical waters of the Northern and Southern Hemispheres, then migrate to higher latitudes in the summer to feed (Muto
Please see Caretta
For marine mammals off Hawaii, there is currently one take reduction plan in effect (False Killer Whale Take Reduction Plan). The goal of this plan is to reduce M/SI of false killer whales in Hawaii-based deep-set and shallow-set longline fisheries; the plan addresses only the Hawai'i Insular and Hawai'i Pelagic stocks of false killer whale. A team was convened in 2010 and a final plan produced in 2012 (77 FR 71260; November 29, 2012). The most recent five-year averages of M/SI for these stocks are below PBR. More information is available online at:
Regulatory measures required by the plan include gear requirements, longline prohibited areas, training and certification in marine mammal handling and release, captains' supervision of marine mammal handling and release, and posting of NMFS-approved placards on longline vessels. On July 18, 2018, NMFS issued a temporary rule (83 FR 33848) to close one of the prohibited areas to deep-set longline fishing for the remainder of the calendar year, because a bycatch trigger established per the regulations implementing the plan was met. PIFSC does not conduct research with longline gear within any of the exclusion zones established by the plan, and PIFSC longline gear adheres to all relevant requirements placed on commercial gear. PIFSC is not conducting commercial fishing as described by the MMPA, but PIFSC is adhering to these commercial fishing restrictions nevertheless. There are no take reduction plans currently in effect for fisheries in American Samoa, the Marianas, or other locations considered herein.
In 2015, NOAA's Cetacean Density and Distribution Mapping Working Group identified Biologically Important Areas (BIAs) for 24 cetacean species, stocks, or populations in seven regions (US East Coast, Gulf of Mexico, West Coast, Hawaiian Islands, Gulf of Alaska, Aleutian Islands and Bering Sea, and Arctic) within U.S. waters through an expert elicitation process. BIAs are reproductive areas, feeding areas, migratory corridors, and areas in which small and resident populations are concentrated. BIAs are region-, species-, and time-specific. A description of the types of BIAs found within PIFSC fishery research areas follows:
The delineation of BIAs does not have direct or immediate regulatory consequences. Rather, the BIA assessment is intended to provide the best available science to help inform analyses and planning for applicants, and to support regulatory and management decisions under existing authorities, and to support the reduction of anthropogenic impacts on cetaceans and to achieve conservation and protection goals. In addition, the BIAs and associated information may be used to identify information gaps and prioritize future research and modeling efforts to better understand cetaceans, their habitat, and ecosystems. Table 4 provides a list of BIAs found within PIFSC fisheries research areas (Baird
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with an exception for lower limits for low-frequency cetaceans where the result was deemed to be biologically implausible and the lower bound of the low-frequency cetacean hearing range from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Twenty-six marine mammal species (25 cetacean species and one phocid pinniped) have the potential to co-occur with PIFSC research activities—please refer to Table 3. Of the 25 cetacean species that may be present, six are classified as low-frequency cetaceans, 17 are classified as mid-frequency cetaceans, and two are classified as high-frequency cetaceans.
This section includes a summary and discussion of the ways that components of the specified activity (
Vessel collisions with marine mammals, or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface may be struck directly by a vessel, a surfacing animal may hit the bottom of a vessel, or an animal just below the surface may be cut by a vessel's propeller. Animals may survive superficial strikes. These interactions are typically associated with large whales, which on occasion, are fatally struck by large commercial ships. Although smaller cetaceans or pinnipeds are more maneuverable in relation to large vessels than are large whales, they may also be susceptible to ship strike. The severity of injuries typically depends on the size and speed of the vessel, with the probability of death or serious injury increasing as vessel speed increases (Knowlton and Kraus, 2001; Laist
Pace and Silber (2005) found that the probability of death or serious injury by ship strike increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious
In an effort to reduce the number and severity of strikes of the endangered North Atlantic right whale (
For vessels used in PIFSC research activities, transit speeds average 10 kt (but vary from 6-14 kt), while vessel speed during active sampling with towed gear is typically only 2-4 kt. At sampling speeds, both the possibility of striking a marine mammal and the possibility of a strike resulting in serious injury or mortality are discountable. Ship strikes, as analyzed in the studies cited above, generally involve commercial shipping, which is much more common in both space and time than is research activity. Jensen and Silber (2004) summarized ship strikes of large whales worldwide from 1975-2003 and found that most collisions occurred in the open ocean and involved large vessels (
It is possible for ship strikes to occur while traveling at slow speeds. For example, a hydrographic survey vessel traveling at low speed (5.5 kt) while conducting mapping surveys off the central California coast struck and killed a blue whale in 2009. The State of California determined that the whale had suddenly and unexpectedly surfaced beneath the hull, with the result that the propeller severed the whale's vertebrae, and that this was an unavoidable event. The strike represents the only such incident in approximately 540,000 hours of similar coastal mapping activity (
Although the likelihood of vessels associated with research surveys striking a marine mammal are low, this rule requires a robust ship strike avoidance protocol (see “Proposed Mitigation”), which we believe eliminates any foreseeable risk of ship strike. We anticipate that vessel collisions involving PIFSC research vessels, while not impossible, represent unlikely, unpredictable events. Furthermore, PIFSC has never reported a ship strike associated with fisheries research activities conducted or funded by the PIFSC. Given the proposed mitigation measures such as the presence of bridge crew watching for obstacles at all times (including marine mammals), the presence of marine mammal observers on some surveys, (see “Proposed Mitigation”) as well as the small number of research cruises relative to commercial ship traffic, we believe that the possibility of ship strike is discountable. Moreover, given the relatively slow speeds at which PIFSC research vessels travel during sampling activities and during transit, even if a marine mammal is struck, it would not likely result in serious injury or mortality (Knowlton and Kraus, 2001; Laist
The types of research gear used by PIFSC were described previously under “Detailed Description of Activity.” Here, we broadly categorize the gear as either (1) extremely unlikely to result in marine mammal interactions, or (2) gear that may result in marine mammal interactions. Former category is not considered further, while those in the latter category is discussed below. Marine mammal interaction is most likely for trawls and longlines.
Trawl nets and longlines deployed by PIFSC are similar to gear used in various commercial fisheries. There are documented occurrences of and potential for marine mammal interaction with these gear types via physical contact such as capture or entanglement. Read
Marine mammals are intelligent and inquisitive—when their pursuit of prey coincides with human pursuit of the same resources, physical interaction with fishing gear may occur (
These interactions can result in injury or death for the animal(s) involved and/or damage to fishing gear. Coastal animals, including various pinnipeds, bottlenose dolphins, and harbor porpoises, are perhaps the most vulnerable to these interactions with set or passive fishing gear (
Capture or entanglement may occur whenever marine mammals are swimming near the gear, intentionally (
Marine mammal interactions with trawl nets, through capture or entanglement, are well-documented. Dolphins are known to attend operating nets in order to either benefit from disturbance of the bottom or to prey on discards or fish within the net. For example, Leatherwood (1975) reported that the most frequently observed feeding pattern for bottlenose dolphins in the Gulf of Mexico involved herds following working shrimp trawlers, apparently feeding on organisms stirred up from the benthos. Bearzi and di Sciara (1997) opportunistically investigated working trawlers in the Adriatic Sea from 1990-94 and found that ten percent were accompanied by foraging bottlenose dolphins. Pelagic trawls appear to have greater potential to capture cetaceans, because the nets may be towed at faster speeds, these trawls are more likely to target species that are important prey for marine mammals (
Globally, at least 17 cetacean species are known to feed in association with trawlers and trawl nets have killed individuals of at least 25 species, including several large whales, porpoises, and a variety of delphinids (Perez, 2006; Young and Iudicello, 2007; Karpouzli and Leaper, 2004; Hall
In evaluating risk relative to a specific fishery (or comparable research survey), one must consider the size of the net as well as frequency, timing, and location of deployment. These considerations inform determinations of whether marine mammal take is likely. Other NMFS science centers have records of marine mammal take from bottom, surface, and midwater trawl nets. However, PIFSC has no history of marine mammal take from trawl nets used during PIFSC fisheries and ecosystem surveys.
The longline is left to passively fish (
Marine mammals may be hooked or entangled in longline gear, with interactions potentially resulting in death due to drowning, strangulation, severing of carotid arteries or the esophagus, infection, an inability to evade predators, or starvation due to an inability to catch prey (Hofmeyr
As was noted for trawl nets, many species of cetaceans and pinnipeds are documented to have been killed by longlines, including several large whales, porpoises, a variety of delphinids, seals, and sea lions (Perez, 2006; Young and Iudicello, 2007; Northridge, 1984, 1991; Wickens, 1995). Records of direct interaction between longlines and marine mammals (both cetaceans and pinnipeds) exist where longline fishing and animals co-occur. A lack of recorded interactions where animals are known to be present may indicate simply that longlining is absent or an insignificant component of fisheries in that region or that interactions were not observed, recorded, or reported.
In evaluating risk relative to a specific fishery (or research survey), one must consider the length of the line and number of hooks deployed as well as frequency, timing, and location of deployment. These considerations inform determinations of whether interaction with marine mammals is likely. PIFSC has not recorded marine mammal interactions or takes with any longline survey. While a lack of historical interactions does not in and of itself indicate that future interactions are unlikely, we believe that the historical record, considered in context with the frequency and timing of these activities, as well as mitigation measures employed indicate that future marine mammal interactions with these gears would be uncommon.
All other gears used in PIFSC fisheries research (
Detailed descriptions of the potential effects of PIFSC's use of acoustic sources are provided in other
Exposure to sound through the use of active acoustic systems for research purposes may result in Level B harassment. However, as detailed in the previously referenced discussions, Level A harassment in the form of permanent threshold shift (PTS) is extremely unlikely to occur, and we consider such effects discountable. With specific reference to Level B harassment that may occur as a result of acoustic exposure, we note that the analytical methods described in the incidental take regulations for other NMFS Science Centers are retained here. However, the state of science with regard to our understanding of the likely potential effects of the use of systems like those used by PIFSC has advanced in recent years, as have readily available approaches to estimating the acoustic footprints of such sources, with the result that we view this analysis as highly conservative. Although more recent literature provides documentation of marine mammal responses to the use of these and similar acoustic systems (
Hawaiian monk seals occur in the HARA and WCPRA. Hawaiian monk seals use numerous sites in the MHI and the NWHI to haul out (
In areas where disturbance of haulouts due to periodic human activity (
In a popular tourism area of the Pacific Northwest where human disturbances occurred frequently, past studies observed stable populations of seals over a twenty-year period (Calambokidis
Level A harassment, serious injury, or mortality could likely only occur as a result of trampling in a stampede (a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus) or abandonment of pups. Pups could be present at times during PIFSC research effort, but PIFSC researchers take precautions to minimize disturbance and prevent any possibility of stampedes, including choosing travel routes as far away from hauledout pinnipeds as possible and by moving sample site locations to avoid consistent haulout areas. In addition, Hawaiian monk seals do not typically haul out in large groups where stampedes would be of concern.
Disturbance of pinnipeds caused by PIFSC survey activities would be expected to last for only short periods of time, separated by significant amounts of time in which no disturbance occurred. Because such disturbance is sporadic, rather than chronic, and of low intensity, individual marine mammals are unlikely to incur any detrimental impacts to vital rates or ability to forage and, thus, loss of fitness. Correspondingly, even local populations, much less the overall stock of animals, are extremely unlikely to accrue any significantly detrimental impacts.
Research catches are also distributed over a wide area because of the random sampling design covering large sample areas. Fish removals by research are therefore highly localized and unlikely to affect the spatial concentrations and availability of prey for any marine mammal species. The overall effect of research catches on marine mammals through competition for prey may therefore be considered insignificant for all species.
Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, or may be intentionally introduced to the marine environment for data acquisition purposes (as in the PIFSC's use of active acoustic sources). Anthropogenic noise varies widely in its frequency content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please also see the discussion on masking in the Acoustic Effects” section of the proposed rule for the taking of marine mammals incidental to NMFS Alaska Fisheries Science Center fisheries research (83 FR 37660; August 1, 2018)), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). For more detail on these concepts see,
Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber, 2013). As described above (“Acoustic Effects”), the signals emitted by PIFSC active acoustic sources are generally high frequency, of short duration, and transient. These factors mean that the signals will attenuate rapidly (not travel over great distances), may not be perceived or affect perception even when animals are in the vicinity, and would not be considered chronic in any given location. PIFSC use of these sources is widely dispersed in both space and time. In conjunction with the prior factors, this means that it is highly unlikely that PIFSC use of these sources would, on their own, have any appreciable effect on acoustic habitat. Sounds emitted by PIFSC vessels would be of lower frequency and continuous, but would also be widely dispersed in both space and time. PIFSC vessel traffic—including both sound from the vessel itself and from the active acoustic sources—is of very low density compared to commercial shipping traffic or commercial fishing vessels and would therefore represent an insignificant incremental increase in the total amount of anthropogenic sound input to the marine environment.
Damage to seafloor habitat may also harm infauna and epifauna (
The Deep Coral and Sponge Research Survey collect small pieces of coral for DNA samples, voucher specimens, and paleoclimate samples. The combined sampling of these studies amounts to about 5.5 pounds/year. Together, these coral samples comprise a small percentage of the total population of coral colonies (see Section 4.2.7 of the PIFSC EA). The RAMP Survey collects up to 500 samples per year of corals (including ESA-listed species), coral products, algae and algal products, and sessile invertebrates. The NMFS Pacific Islands Regional Office has issued a Biological Opinion concluding that PIFSC surveys are not likely to jeopardize the continued existence of any coral species taken.
As described in the preceding, the potential for PIFSC research to affect the availability of prey to marine mammals or to meaningfully impact the quality of physical or acoustic habitat is considered to be insignificant for all species. Effects to marine mammal habitat will not be discussed further in this document.
This section provides an estimate of the number of incidental takes proposed for authorization. The estimated take informs NMFS' determination of whether the number of takes are “small” and the negligible impact determination.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Take of marine mammals incidental to PIFSC research activities could occur as a result of (1) injury or mortality due to gear interaction (Level A harassment, serious injury, or mortality); (2) behavioral disturbance resulting from the use of active acoustic sources (Level B harassment only); or (3) behavioral disturbance of pinnipeds resulting from incidental approach of researchers and research vessels (Level B harassment only). Below we describe how the potential take is estimated.
The use of historical interactions as a basis to estimate future take of marine mammals in fisheries research gear has been utilized in the LOA applications and rules of other NMFS Fisheries Science Centers (
NMFS believes it is appropriate to include estimates for future incidental takes of a number of species that have not been taken by PIFSC historically, but inhabit the same areas and show similar types of behaviors and vulnerabilities to gear used by other NMFS Fisheries Science Centers and used in commercial fisheries (based on the 2019 List of Fisheries (LOF), see
As background to the process of determining which species not historically taken may have sufficient vulnerability to capture in PIFSC gear to justify inclusion in these proposed regulations, we note that the PIFSC is NMFS's research arm in the central and western Pacific Ocean and may be considered as a leading source of expert knowledge regarding marine mammals (
While PIFSC has not historically taken marine mammal species in its longline gear, it is well documented that some species potentially encountered during PIFSC surveys are taken in commercial longline fisheries. In order to evaluate the potential vulnerability of species to trawl and longline fishing gear and entanglement from instrument deployment and traps, we first consulted the List of Fisheries (LOF). The LOF classifies U.S. commercial fisheries into one of three categories according to the level of incidental marine mammal M/SI that occurs on an annual basis over the most recent five-year period (generally) for which data has been analyzed: Category I, frequent incidental M/SI; Category II, occasional incidental M/SI; and Category III, remote likelihood of or no known incidental M/SI. We provide summary information, as presented in the 2020 LOF (85 FR 21079; April 16, 2020), in Table 6. In order to simplify information presented, and to encompass information related to other similar species from different locations, we group marine mammals by genus (where there is more than one member of the genus found in U.S. waters). Where there are documented incidents of M/SI incidental to relevant commercial fisheries, we note whether we believe those incidents provide sufficient basis upon which to infer vulnerability to capture in PIFSC research gear. For a listing of all Category I, II, and II fisheries using relevant gears, associated estimates of fishery participants, and specific locations and fisheries associated with the historical fisheries takes indicated in Table 4 below, please see the 2020 LOF. For specific numbers of marine mammal takes associated with these fisheries, please see the relevant SARs. More information is available online at
Information related to incidental M/SI in relevant commercial fisheries is not, however, the sole determinant of appropriateness for authorizing take incidental to PIFSC survey operations. Numerous factors (
To estimate the potential number of takes by M/SI from PIFSC research gear, we first determine which species may have vulnerability to capture by gear type. Of those species, we then determine whether any may have similar propensity to be taken by a given gear as a historically-taken species in U.S. commercial fisheries (inferred vulnerability). For these species, we assume it is possible that take could occur while at the same time contending that, absent significant range shifts or changes in habitat usage, capture of a species not historically taken by PIFSC research activities would likely be a very rare event. Therefore, we assume that take by PIFSC would be a rare event such that authorization of a single take over the five-year period, for each region where the gear is used and the species is present, is likely sufficient given the low risk of marine mammals interacting with PIFSC gear.
PIFSC assumes any take of marine mammals in longline fisheries research activities will be a rare occurrence. As stated above, NMFS expects that take of marine mammals by M/SI by PIFSC would be a rare event such that no more than a single take of each species/stock by M/SI over the five-year period, is reasonably likely to occur. Therefore, PIFSC requested one take in longline gear over the five-year authorization period throughout the PIFSC research area for each of the following species: Bottlenose dolphin (Hawai'i pelagic stock), Blainville's beaked whale (Hawai'i pelagic stock), Cuvier's beaked whale (Hawai'i pelagic stock),
While PIFSC has not historically taken large whales in its longline gear, these species are taken in commercial longline fisheries. There are two large whale species that have been taken by commercial longline fisheries and for which PIFSC is requesting a single take each over the five-year authorization period in longline gear: The humpback whale and the sperm whale. Both of these species are listed as endangered under the ESA and thus by definition, depleted under the MMPA. Although large whale species could become entangled in longline gear, the probability of interaction with PIFSC longline gear is extremely low considering a much lower level of survey effort and shorter duration sets relative to that of commercial fisheries. For example, in 2014 approximately 47.1 million hooks were deployed in commercial longline fishing in the PIFSC research areas (see
Therefore PIFSC is requesting one take of humpback whale (central North Pacific stock) in gear associated with deployed instruments and traps. In addition, based on a similarity in behavior, several species of “curious” small delphinids have the potential for becoming entangled in gear associated with instrument deployments. PIFSC has established mitigation measures already in place to reduce potential interactions (
The gear and instruments listed above are not considered to have a reasonable potential to take marine mammals given their physical characteristics, how they are fished, and the environments where they are used. There have been no marine mammal mortalities, serious injuries, or other Level A takes associated with any of these gear types. Because of this, PIFSC does not expect these activities to result in take of marine mammals in the PIFSC research areas, and as such is not requesting marine mammal take for these gears or instruments.
Bottlenose dolphins have been identified as the primary species associated with depredation of catch in the bottomfish fishery and they appear to be adept at pulling hooked fish from the gear without breaking the line or taking hooks off the line (Kobayashi and Kawamoto 1994). It is not known if these interactions result in injury, serious injury, or mortality of bottlenose dolphins or other cetaceans (Caretta
PIFSC has no records of marine mammals interacting with bottomfishing research gear and given the mitigation measures the PIFSC would be required to implement for bottomfishing research to prevent marine mammals from interacting with bottomfishing activities (
As described previously (“Potential Effects of the Specified Activity on Marine Mammals and Their Habitat”), we believe that PIFSC use of active acoustic sources has, at most, the potential to cause Level B harassment of marine mammals. In order to attempt to quantify the potential for Level B harassment to occur, NMFS (including the PIFSC and acoustics experts from other parts of NMFS) developed an analytical framework considering characteristics of the active acoustic systems described previously under “Description of Active Acoustic Sound Sources,” their expected patterns of use, and characteristics of the marine mammal species that may interact with them. We believe that this quantitative assessment benefits from its simplicity and consistency with current NMFS acoustic guidance regarding Level B harassment but caution that, based on a number of deliberately precautionary assumptions, the resulting take estimates may be seen as an overestimate of the potential for behavioral harassment to occur as a result of the operation of these systems. Additional details on the approach used and the assumptions made that result in these estimates are described below.
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals behavioral harassment (equated to Level B harassment) is reasonably expected or to incur PTS of some degree (Level A harassment). We note NMFS has begun efforts to update its behavioral thresholds, considering all available data, and is formulating a strategy for updating those thresholds for all types of sound sources considered in incidental take authorizations. It is NMFS's intention to conduct both internal and external review of any new thresholds prior to finalizing this rule. In the interim, we apply the traditional thresholds.
The Marine Mammal Commission (Commission) has previously suggested NMFS apply the 120 dB continuous Level B harassment threshold to scientific sonar such as the ones proposed by the PIFSC. NMFS has responded to this comment in multiple
To apply the continuous 120 dB threshold to all species based on data from known acoustically sensitive species (one species of which is the harbor porpoise, which does not inhabit PIFSC research areas) is not warranted, as it would be unnecessarily conservative for non-sensitive species. Qualitatively considered in our effects analysis below is that beaked whales and harbor porpoise are more acoustically sensitive than other cetacean species, and thus are more likely to demonstrate overt changes in behavior when exposed to such sources. Further, in absence of very sophisticated acoustic modeling, our propagation rates are also conservative. Therefore, the distance to the 160 dB threshold is likely much closer to the source than calculated. In summary, the PIFSC's proposed activity only includes the use of intermittent sources (scientific sonar). Therefore, the 160 dB threshold is applicable when quantitatively estimating take by behavioral harassment incidental to PIFSC scientific sonar for all marine mammal species.
The assessment paradigm for active acoustic sources used in PIFSC fisheries research is relatively straightforward and has a number of key simple and conservative assumptions. NMFS' current acoustic guidance requires in most cases that we assume Level B harassment occurs when a marine mammal receives an acoustic signal at or above a simple step-function threshold. For use of these active acoustic systems used during PIFSC research, NMFS uses the threshold is 160 dB re 1 μPa (rms) as the best available science indicates the temporal characteristics of a source are most influential in determining behavioral impacts (Gomez
(1) A detailed characterization of the acoustic characteristics of the effective sound source or sources in operation;
(2) The operational areas exposed to levels at or above those associated with Level B harassment when these sources are in operation;
(3) A method for quantifying the resulting sound fields around these sources; and
(4) An estimate of the average density for marine mammal species in each area of operation.
Quantifying the spatial and temporal dimension of the sound exposure footprint (or “swath width”) of the active acoustic devices in operation on moving vessels and their relationship to the average density of marine mammals enables a quantitative estimate of the number of individuals for which sound levels exceed the relevant threshold for each area. The number of potential incidents of Level B harassment is ultimately estimated as the product of the volume of water ensonified at 160 dB rms or higher and the volumetric density of animals determined from simple assumptions about their vertical stratification in the water column. Specifically, reasonable assumptions based on what is known about diving behavior across different marine mammal species were made to segregate those that predominately remain in the upper 200 m of the water column versus those that regularly dive deeper during foraging and transit. Methods for estimating each of these calculations are described in greater detail in the following sections, along with the simplifying assumptions made, and followed by the take estimates.
Many of these sources can be operated in different modes and with different output parameters. In modeling their potential impact areas, those features among those given previously in Table 2 (
Following the determination of effective sound exposure area for transmissions considered in two dimensions, the next step was to determine the effective volume of water ensonified at or above 160 dB rms for the entirety of each survey. For each of the three predominant sound sources, the volume of water ensonified is estimated as the athwartship cross-sectional area (in square kilometers) of sound at or above 160 dB rms (as illustrated in Figure 6.1 of PIFSC's application) multiplied by the total distance traveled by the ship. Where different sources operating simultaneously would be predominant in each different depth strata, the resulting cross-sectional area calculated took this into account. Specifically, for shallow-diving species this cross-sectional area was determined for whichever was predominant in the shallow stratum, whereas for deeper-diving species this area was calculated from the combined effects of the predominant source in the shallow stratum and the (sometimes different) source predominating in the deep stratum. This creates an effective total volume characterizing the area ensonified when each predominant source is operated and accounts for the fact that deeper-diving species may encounter a complex sound field in different portions of the water column.
First, typical two-dimensional marine mammal density estimates (animals/km
(1) They are often calculated using visual sighting data collected during one season rather than throughout the year. The time of year when data were collected and from which densities were estimated may not always overlap with the timing of PIFSC fisheries surveys (detailed previously in “Detailed Description of Activities”).
(2) The densities used for purposes of estimating acoustic exposures do not take into account the patchy distributions of marine mammals in an ecosystem, at least on the moderate to fine scales over which they are known to occur. Instead, animals are considered evenly distributed throughout the assessed area, and seasonal movement patterns are not taken into account.
(3) Marine mammal density information is in many cases based on limited historical surveys and may be incomplete or absent for many regions of the vast geographic area addressed by PIFSC fisheries research. As a result density estimates for some species/stocks in some regions are based on the best available data for other regions and/or similar stocks.
In addition, and to account for at least some coarse differences in marine mammal diving behavior and the effect this has on their likely exposure to these kinds of often highly directional sound sources, a volumetric density of marine mammals of each species was determined. This value is estimated as the abundance averaged over the two-dimensional geographic area of the surveys and the vertical range of typical habitat for the population. Habitat ranges were categorized in two generalized depth strata (0-200 m and greater than 200 m) based on gross differences between known generally surface-associated and typically deep-diving marine mammals (
The volumetric densities are estimates of the three-dimensional distribution of animals in their typical depth strata. For shallow-diving species the volumetric density is the area density divided by 0.2 km (
(1) ADCP Ocean Surveyor ensonified volume (0-200 m) = 0.0086 km
(2) Total Line kms = 81,500 km
(3) Pantropical spotted dolphin density (0-200 m) = 0.11660 dolphins/km
(4) Estimated exposures to sound ≥ 160 dB rms = 0.11660 pantropical spotted dolphin/km
Totals in Tables 11-14 represent sums across all relevant surveys and sources rounded up to the nearest whole number. Note that take of baleen whales is not predicted due to the lack of overlap in their hearing range with the operating frequencies of PIFSC acoustic sources.
Take due to physical disturbance could potentially happen, as it is likely that some Hawaiian monk seals will move or flush from known haulouts into the water in response to the presence or sound of PIFSC vessels or researchers. In the MHI and the NWHI, there are numerous sites used by the endangered Hawaiian monk seal to haulout (sandy beaches, rocky outcroppings, exposed reefs) where the physical presence and sounds of researchers walking by or passing nearby in small boats may disturb animals present. Disturbance to Hawaiian monk seals would occur in the HARA only. Physical disturbance would result in no greater than Level B harassment. Behavioral responses may be considered according to the scale shown in Table 16 and based on the method developed by Mortenson (1996). We consider responses corresponding to Levels 2-3 to constitute Level B harassment.
The 2018 SAR for Hawaiian monk seal estimates the total abundance in the Hawaiian archipelago is 1,415 seals (Caretta
Parrish
In order to issue an incidental take authorization under Section 101(a)(5)(A or D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) 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, personnel safety, and practicality of implementation.
The PIFSC has invested significant time and effort in identifying technologies, practices, and equipment to minimize the impact of the proposed activities on marine mammal species and stocks and their habitat. The mitigation measures discussed here have been determined to be both effective and practicable and, in some cases, have already been implemented by the PIFSC. In addition, the PIFSC is actively conducting research to determine if gear modifications are effective at reducing take from certain types of gear; any potentially effective and practicable gear modification mitigation measures will be discussed as research results are available as part of the adaptive management strategy included in this rule.
The PIFSC will coordinate with the local Pacific Islands Regional Stranding Coordinator and the NMFS Stranding Coordinator for any unusual protected species behavior and any stranding, beached live/dead, or floating protected species that are encountered during field research activities. If a large whale is alive and entangled in fishing gear, the vessel will immediately call the U.S. Coast Guard at VHF Ch. 16 and/or the appropriate Marine Mammal Health and Stranding Response Network for instructions. All entanglements (live or dead) and vessel strikes must be reported immediately to the NOAA Fisheries Marine Mammal Stranding Hotline at 888-256-9840.
Captured or entangled live or injured marine mammals are released from research gear and returned to the water as soon as possible with no gear or as little gear remaining on the animal as possible. Animals are released without removing them from the water if possible, and data collection is conducted in such a manner as not to delay release of the animal(s) or endanger the crew. PIFSC is responsible for training PIFSC and partner affiliates on how to identify different species; handle and bring marine mammals aboard a vessel; assess the level of consciousness; remove fishing gear; and return marine mammals to water. Human safety is always the paramount concern.
Visual monitoring protocols, described above, are an integral component of trawl mitigation protocols. Observation of marine mammal presence and behaviors in the vicinity of PIFSC trawl survey operations allows for the application of professional judgment in determining the appropriate course of action to minimize the incidence of marine mammal gear interactions.
The OOD, CS or other designated member of the scientific party, and crew standing watch on the bridge visually scan surrounding waters with the naked eye and rangefinding binoculars (or monocular) for marine mammals prior to, during, and until all trawl operations are completed. Some sets may be made at night or in other limited visibility conditions, when visual observation may be conducted using the naked eye and available vessel lighting with limited effectiveness.
Most research vessels engaged in trawling will have their station in view for 15 minutes or 2 nmi prior to reaching the station, depending upon the sea state and weather. Many vessels will inspect the tow path before deploying the trawl gear, adding another 15 minutes of observation time and gear preparation prior to deployment.
If marine mammals are observed at or near the station, the CS and the vessel operator will determine the best strategy to avoid potential takes based on the species encountered, their numbers and behavior, their position and vector relative to the vessel, and other factors. For instance, a whale transiting through the area and heading away from the vessel may not require any move, or may require only a short move from the initial sampling site, while a pod of dolphins gathered around the vessel may require a longer move from the initial sampling site or possibly cancellation of the station if the dolphins follow the vessel. After moving on, if marine mammals are still visible from the vessel and appear to be at risk, the CS or OOD may decide, in consultation with the vessel operator, to move again or to skip the station. In many cases, the survey design can accommodate sampling at an alternate site. Gear would not be deployed if marine mammals have been sighted from the ship in its approach to the station unless those animals do not appear to be in danger of interactions with the gear, as determined by the judgment of the CS and vessel operator. The efficacy of the “move-on” rule is limited during nighttime or other periods of limited visibility, although operational lighting from the vessel illuminates the water in the immediate vicinity of the vessel during gear setting and retrieval. In these cases, it is again the judgment of the CS or vessel operator as based on experience and in consultation with the vessel operator to exercise due diligence and to decide on appropriate course of action to avoid unintentional interactions.
Once the trawl net is in the water, the OOD, CS or other designated scientist, and/or crew standing watch continue to monitor the waters around the vessel and maintain a lookout for marine mammals as environmental conditions allow (as noted previously, visibility can be limited for various reasons). If marine mammals are sighted before the gear is fully retrieved, the most appropriate response to avoid incidental take is determined by the professional judgment of the OOD, in consultation with the CS and vessel operator as necessary. These judgments take into consideration the species, numbers, and behavior of the animals, the status of the trawl net operation (net opening, depth, and distance from the stern), the time it would take to retrieve the net, and safety considerations for changing speed or course. If marine mammals are sighted during haul-back operations, there is the potential for entanglement during retrieval of the net, especially when the trawl doors have been retrieved and the net is near the surface and no longer under tension. The risk of catching an animal may be reduced if the trawling continues and the haul-back is delayed until after the marine mammal has lost interest in the gear or left the area. The appropriate course of action to minimize the risk of incidental take is determined by the professional judgment of the OOD, vessel operator, and the CS based on all situation variables, even if the choices compromise the value of the data collected at the station. The PIFSC must retrieve trawl gear immediately if marine mammals are believed to be captured/entangled in a net, line, or associated gear and follow disentanglement protocols.
We recognize that it is not possible to dictate in advance the exact course of action that the OOD or CS should take in any given event involving the presence of marine mammals in proximity to an ongoing trawl tow, given the sheer number of potential variables, combinations of variables that may determine the appropriate course of action, and the need to prioritize human safety in the operation of fishing gear at sea. Nevertheless, PIFSC will account for all factors that shape both successful and unsuccessful decisions, and these details will be fed back into PIFSC training efforts and ultimately help to refine the best professional judgment that determines the course of action taken in future scenarios (see further discussion in “Proposed Monitoring and Reporting”).
If trawling operations have been suspended because of the presence of marine mammals, the vessel will resume trawl operations (when practicable) only when the animals are believed to have departed the area. This decision is at the discretion of the OOD/CS and is dependent on the situation. PIFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station following visual monitoring pre-deployment. PIFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. Standard tow durations for midwater trawls are between two and four hours as target species (
Visual monitoring requirements for all longline surveys are similar to the general protocols described above for trawl surveys. Please see that section for full details of the visual monitoring protocol and the move-on rule mitigation protocol. In summary, requirements for longline surveys are to: (1) Conduct visual monitoring prior to arrival on station; (2) implement the move-on rule if marine mammals are observed within the area around the vessel and may be at risk of interacting with the vessel or gear; (3) deploy gear as soon as possible upon arrival on station (depending on presence of marine mammals); and (4) maintain visual monitoring effort throughout deployment and retrieval of the longline gear. As was described for trawl gear, the OOD, CS, or personnel on watch will use best professional judgment to minimize the risk to marine mammals from potential gear interactions during deployment and retrieval of gear. If marine mammals are detected during setting operations and are considered to be at risk, immediate retrieval or suspension of operations may be warranted. If operations have been suspended because of the presence of marine mammals, the vessel will resume setting (when practicable) only when the animals are believed to have departed the area. If marine mammals are detected during retrieval operations and are considered to be at risk, haul-back may be postponed. The PIFSC must retrieve gear immediately if marine mammals are believed to be captured/entangled in a net, line, or associated gear and follow disentanglement protocols. These decisions are at the discretion of the
The 1994 amendments to the MMPA tasked NMFS with establishing monitoring programs to estimate mortality and serious injury of marine mammals incidental to commercial fishing operations and to develop Take Reduction Plans (TRPs) in order to reduce commercial fishing takes of strategic stocks of marine mammals below Potential Biological Removal (PBR). The False Killer Whale Take Reduction Plan (FKWTRP) was finalized in 2012 to reduce the level of mortality and serious injury of false killer whales in Hawaii-based longline fisheries for tuna and billfish (77 FR 71260; November 29, 2012). Regulatory measures in the FKWTRP include gear requirements, prohibited areas, training and certification in marine mammal handling and release, and posting of NMFS-approved placards on longline vessels. PIFSC does not conduct fisheries and ecosystem research with longline gear within any of the exclusion zones established by the FKWTRP.
Because longline research is currently conducted in conjunction with commercial fisheries, operational characteristics (
• When shallow-setting anywhere and setting longline gear from the stern: Completely thawed and blue-dyed bait will be used (two 1-pound containers of blue-dye will be kept on the boat for backup). Fish parts and spent bait with all hooks removed will be kept for strategic offal discard. Retained swordfish will be cut in half at the head; used heads and livers will also be used for strategic offal discard. Setting will only occur at night and begin 1 hour after local sunset and finish 1 hour before next sunrise, with lighting kept to a minimum.
• When deep-setting north of 23° N and setting longline gear from the stern: 45 Gram (g) or heavier weights will be attached within 1 m of each hook. A line shooter will be used to set the mainline. Completely thawed and blue-dyed bait will be used (two 1-pound containers of blue-dye will be kept on the boat for backup). Fish parts and spent bait with all hooks removed will be kept for strategic offal discard. Retained swordfish will be cut in half at the head; used heads and livers will also be used for strategic offal discard.
• When shallow-setting anywhere and setting longline gear from the side: Mainline will be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it will be mounted at least 1 m forward from the stern corner. A specified bird curtain will be used aft of the setting station during the set. Gear will be deployed so that hooks do not resurface. 45 g or heavier weights will be attached within 1 m of each hook.
• When deep-setting north of 23° N and setting longline gear from the side: Mainline will be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it will be mounted at least 1 m forward from the stern corner. A specified bird curtain will be used aft of the setting station during the set. Gear will be deployed so that hooks do not resurface. 45 g or heavier weights will be attached within 1 m of each hook.
Operational characteristics in non-Western Pacific Regional Fisheries Management Council areas of jurisdiction (
The following measures are carried out by the PIFSC when working in and around shallow water coral reef habitats. These measures are intended to avoid and minimize impacts to marine mammals and other protected species. Transit from the open ocean to shallow-reef survey regions (depths of < 35 m) of atolls and islands should be no more than 3 nmi, dependent upon prevailing weather conditions and regulations. Each team conducts surveys and in-water operations with at least two divers observing for the proximity of marine mammals, a coxswain driving the small boat, and a topside spotter working in tandem. Topside spotters may also work as coxswains, depending on team assignment and boat layout. Spotters and coxswains will be tasked with specifically looking out for divers, marine mammals, and environmental hazards.
Before approaching any shoreline or exposed reef, all observers will examine the beach, shoreline, reef areas, and any other visible land areas within the line of sight for marine mammals. Divers, spotters, and coxswains undertake consistent due diligence and take every precaution during operations to avoid interactions with any marine mammals (
• Constant vigilance shall be kept for the presence of marine mammals;
• When piloting vessels, vessel operators shall alter course to remain at least 100 m from marine mammals;
• Reduce vessel speed to 10 kt or less when piloting vessels within 1 km (as visibility permits) of marine mammals;
• Marine mammals should not be encircled or trapped between multiple vessels or between vessels and the shore;
• If approached by a marine mammal (within 100 yards for large whales and 50 yards for all other marine mammals), put the engine in neutral and allow the animal to pass;
• Unless specifically covered under a separate NMFS research permit that allows activity in proximity to marine mammals, all in-water work, not already underway, will be postponed and must not commence until large whales are beyond 100 yards or other marine mammals are beyond 50 yards;
• Should marine mammals enter the area while in-water work is already in progress, the activity may continue only when that activity has no reasonable expectation to adversely affect the animal(s);
• No feeding, touching, riding, or otherwise intentionally interacting with any marine mammals is permitted unless undertaken to rescue a marine mammal or otherwise authorized by another permit;
• Mechanical equipment will also be monitored to ensure no accidental entanglements occur with protected species (
• Team members will immediately respond to an entangled animal, halting operations and providing an onsite
Land vehicle (trucks) operations will occur in areas of marine debris where vehicle access is possible from highways or rural/dirt roads adjacent to coastal resources. Prior to initiating any marine debris removal operations, marine debris personnel (marine ecosystem specialists) will thoroughly examine the beaches and near shore environments/waters for Hawaiian monk seals before approaching marine debris sites and initiating removal activities. Debris will be retrieved by personnel who are knowledgeable of and act in compliance with all Federal laws, rules and regulations governing wildlife in the Papahānaumokuākea Marine National Monument and MHI. This includes, but is not limited to maintaining a minimum distance of 50 yards from all monk seals and a minimum of 100 yards from female seals with pups.
The PIFSC carefully considered the potential risk of marine mammal interactions with its bottomfishing hook-and-line research gear, and determined that the risk was not high enough to warrant requesting takes in that gear. However, PIFSC intends to implement mitigation measures to reduce the risk of potential interactions and to help improve our understanding of what those risks might be for different species. These efforts will help inform the adaptive management process to determine the appropriate type of mitigation needed for research conducted with bottomfishing gear. PIFSC will implement the following mitigation measures:
• Visual monitoring for marine mammals for at least 30 minutes before gear is set and implementation of the “move-on” rule as described above;
• To avoid attracting any marine mammals to a bottomfishing operation, dead fish and bait will not be discarded from the vessel while actively fishing. Dead fish and bait may be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area;
• If a hooked fish is retrieved and it appears to the fisher that it has been damaged by a monk seal or other marine mammal, then visual monitoring will be enhanced around the vessel for the next ten minutes. Fishing may continue during this time. If a shark is sighted, then visual monitoring would be returned to normal. If a monk seal, bottlenose dolphin, or other marine mammal is seen in the vicinity of a bottomfishing operation, then the gear would be retrieved immediately and the vessel would be moved to another sampling location where marine mammals are not present. Catch loss would be tallied on the data sheet, as would a “move-on” for a marine mammal; and
• If bottomfishing gear is lost while fishing, then visual monitoring will be enhanced around the vessel for the next ten minutes. Fishing may continue during this time. If a shark is sighted, then visual monitoring would be returned to normal under the assumption that marine mammals and sharks are unlikely to co-occur. If a monk seal, bottlenose dolphin, or other marine mammal is seen in the vicinity, it would be observed until a determination can be made of whether gear is sighted attached to the animal, gear is suspected to be on the animal (
Visual monitoring requirements for instrument and trap deployments are similar to the general protocols described above for trawl and longline surveys. Please see that section for full details of the visual monitoring protocol and the move-on rule mitigation protocol. In summary, requirements for longline surveys are to: (1) Conduct visual monitoring prior to arrival on station; (2) implement the move-on rule if marine mammals are observed within the area around the vessel and may be at risk of interacting with the vessel or gear; (3) deploy gear as soon as possible upon arrival on station (depending on presence of marine mammals); and (4) maintain visual monitoring effort throughout deployment and retrieval of the gear. As was described for trawl and longline gear, the OOD, CS, or personnel on watch will use best professional judgment to minimize the risk to marine mammals from potential gear interactions during deployment and retrieval of gear. If marine mammals are detected during setting operations and are considered to be at risk, immediate retrieval or suspension of operations may be warranted. If operations have been suspended because of the presence of marine mammals, the vessel will resume setting (when practicable) only when the animals are believed to have departed the area. If marine mammals are detected during retrieval operations and are considered to be at risk, haul-back may be postponed. PIFSC must retrieve gear immediately if marine mammals are believed to be entangled in an instrument or trap line or associated gear and follow disentanglement protocols. These decisions are at the discretion of the OOD/CS and are dependent on the situation.
In order to minimize the potential risk of entanglement during instrument and trap deployment, PIFSC is evaluating possible modifications to total line length and the relative length of floating line to sinking line used for stationary gear that is deployed from ships or small boats (
Line floating on the surface presents the greatest risk for marine mammal entanglement because: (1) When marine mammals (
Currently, PIFSC uses only floating line to deploy stationary gear from ships or small boats. Floating line is used in order to maintain the vertical orientation of the line immediately above the instrument on the seafloor. The floating line also helps to keep the line off of the seafloor where it could snag or adversely affect benthic organisms or habitat features.
This mitigation measure would involve the use of sinking line for approximately the top
Based on our evaluation of the PIFSC's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed 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 incidental take authorization for an activity, section 101(a)(5)(A) 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) require that requests for incidental take 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 proposed action area.
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 action area (
• 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.
PIFSC shall designate a compliance coordinator who shall be responsible for ensuring compliance with all requirements of any LOA issued pursuant to these regulations and for preparing for any subsequent request(s) for incidental take authorization.
PIFSC plans to make its training, operations, data collection, animal handling, and sampling protocols more systematic in order to improve its ability to understand how mitigation measures influence interaction rates and ensure its research operations are conducted in an informed manner and consistent with lessons learned from those with experience operating these gears in close proximity to marine mammals. It is in this spirit that we propose the monitoring requirements described below.
Marine mammal watches are a standard part of conducting fisheries research activities, and are implemented as described previously in “Proposed Mitigation.” Dedicated marine mammal visual monitoring occurs as described (1) for some period prior to deployment of most research gear; (2) throughout deployment and active fishing of all research gears; (3) for some period prior to retrieval of longline gear; and (4) throughout retrieval of all research gear. This visual monitoring is performed by trained PIFSC personnel or other trained crew during the monitoring period. Observers record the species and estimated number of animals present and their behaviors. This may provide valuable information towards an understanding of whether certain species may be attracted to vessels or certain survey gears. Separately, personnel on watch (those navigating the vessel and other crew; these will typically not be PIFSC personnel) monitor for marine mammals at all times when the vessel is being operated. The primary focus for this type of watch is to avoid striking marine mammals and to generally avoid navigational hazards. These personnel on watch typically have other duties associated with navigation and other vessel operations and are not required to record or report to the scientific party data on marine mammal sightings, except when gear is being deployed, soaking, or retrieved or when marine mammals are observed in the path of the ship during transit.
PIFSC will also monitor disturbance of hauled-out pinnipeds resulting from the presence of researchers, paying particular attention to the distance at which pinnipeds are disturbed. Disturbance will be recorded according to the three-point scale, representing increasing seal response to disturbance, shown in Table 16.
NMFS considers the proposed suite of monitoring and operational procedures to be necessary to avoid adverse interactions with protected species and still allow PIFSC to fulfill its scientific missions. However, some mitigation measures such as the move-on rule require judgments about the risk of gear interactions with protected species and the best procedures for minimizing that risk on a case-by-case basis. Vessel operators and Chief Scientists are charged with making those judgments at sea. They are all highly experienced professionals but there may be inconsistencies across the range of research surveys conducted and funded by PIFSC in how those judgments are made. In addition, some of the mitigation measures described above could also be considered “best practices” for safe seamanship and avoidance of hazards during fishing (
PIFSC will initiate a process for its Chief Scientists and vessel operators to communicate with each other about their experiences with marine mammal interactions during research work with the goal of improving decision-making regarding avoidance of adverse interactions. As noted above, there are many situations where professional judgment is used to decide the best course of action for avoiding marine mammal interactions before and during the time research gear is in the water. The intent of this mitigation measure is
PIFSC would also develop a formalized marine mammal training program required for all PIFSC research projects and for all crew members that may be posted on monitoring duty or handle incidentally caught marine mammals. Training programs would be conducted on a regular basis and would include topics such as monitoring and sighting protocols, species identification, decision-making factors for avoiding take, procedures for handling and documenting marine mammals caught in research gear, and reporting requirements. PIFSC will work with the Pacific Islands commercial fisheries Observer Program to customize a new marine mammal training program for researchers and ship crew. The Observer Program currently provides protected species training (and other types of training) for NMFS-certified observers placed on board commercial fishing vessels. PIFSC Chief Scientists and appropriate members of PIFSC research crews will be trained using similar monitoring, data collection, and reporting protocols for marine mammal as is required by the Observer Program. All PIFSC research crew members that may be assigned to monitor for the presence of marine mammals during future surveys will be required to attend an initial training course and refresher courses annually or as necessary. The implementation of this training program would formalize and standardize the information provided to all research crew that might experience marine mammal interactions during research activities.
For all PIFSC research projects and vessels, written cruise instructions and protocols for avoiding adverse interactions with marine mammals will be reviewed and, if found insufficient, made fully consistent with the Observer Program training materials and any guidance on decision-making that arises out of the two training opportunities described above. In addition, informational placards and reporting procedures will be reviewed and updated as necessary for consistency and accuracy. All PIFSC research cruises already include pre-sail review of marine mammal protocols for affected crew but PIFSC will also review its briefing instructions for consistency and accuracy.
Following the first year of implementation of the LOA, PIFSC will convene a workshop with PIRO Protected Resources, PIFSC fishery scientists, NOAA research vessel personnel, and other NMFS staff as appropriate to review data collection, marine mammal interactions, and refine data collection and mitigation protocols, as required. PIFSC will also coordinate with NMFS' Office of Science and Technology to ensure training and guidance related to handling procedures and data collection is consistent with other fishery science centers, where appropriate.
PIFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS's Office of Protected Resources (OPR). Improved standardization of handling procedures were discussed previously in “Proposed Mitigation.” In addition to improving marine mammal survival post-release, PIFSC believes adopting these protocols for data collection will also increase the information on which “serious injury” determinations (NMFS, 2012a, 2012b) are based, improve scientific knowledge about marine mammals that interact with fisheries research gear, and increase understanding of the factors that contribute to these interactions. PIFSC personnel will receive standard guidance and training on handling marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to the water, and record activities pertaining to the interaction.
PIFSC will record interaction information on their own standardized forms. To aid in serious injury determinations and comply with the current NMFS Serious Injury Guidelines, researchers will also answer a series of supplemental questions on the details of marine mammal interactions.
Finally, for any marine mammals that are killed during fisheries research activities, scientists will collect data and samples pursuant to Appendix D of the PIFSC Draft Environmental Assessment, “Protected Species Mitigation and Handling Procedures for PIFSC Fisheries Research Vessels.”
As is normally the case, PIFSC will coordinate with the relevant stranding coordinators for any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that are encountered during field research activities. The PIFSC will follow a phased approach with regard to the cessation of its activities and/or reporting of such events, as described in the proposed regulatory texts following this preamble. In addition, Chief Scientists (or vessel operators) will provide reports to PIFSC leadership and to the Office of Protected Resources (OPR). As a result, when marine mammals interact with survey gear, whether killed or released alive, a report provided by the CS will fully describe any observations of the animals, the context (vessel and conditions), decisions made and rationale for decisions made in vessel and gear handling. The circumstances of these events are critical in enabling PIFSC and OPR to better evaluate the conditions under which takes are most likely occur. We believe in the long term this will allow the avoidance of these types of events in the future.
The PIFSC will submit annual summary reports to OPR including:
(1) Annual line-kilometers surveyed during which the EK60, EM 300, and ADCP Ocean Surveyor (or equivalent sources) were predominant (see “Estimated Take by Acoustic Harassment” for further discussion), specific to each region;
(2) Summary information regarding use of all longline and trawl gear, including number of sets, tows, etc., specific to each research area and gear;
(3) Accounts of surveys where marine mammals were observed during sampling but no interactions occurred;
(4) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why;
(5) Summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to the three-point scale shown in Table 14, and distance of closest approach;
(6) A written description of any mitigation research investigation efforts and findings (
(7) A written evaluation of the effectiveness of PIFSC mitigation strategies in reducing the number of marine mammal interactions with
(8) Details on marine mammal-related training taken by PIFSC and partner affiliates.
The period of reporting will be annually. The first annual report must cover the period from the date of issuance of the LOA through the end of that calendar year and the entire first full calendar year of the authorization. Subsequent reports would cover only one full calendar year. Each annual report must be submitted not less than ninety days following the end of a given year. PIFSC shall provide a final report within thirty days following resolution of comments on the draft report. Submission of this information serves an adaptive management framework function by allowing NMFS to make appropriate modifications to mitigation and/or monitoring strategies, as necessary, during the proposed five-year period of validity for these regulations.
NMFS has established a formal incidental take reporting system, the Protected Species Incidental Take (PSIT) database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to NMFS leadership and other relevant staff, alerting them to the event and to the fact that updated information describing the circumstances of the event has been inputted to the database. The PSIT and CS reports represent not only valuable real-time reporting and information dissemination tools but also serve as an archive of information that may be mined in the future to study why takes occur by species, gear, region, etc. The PIFSC is required to report all takes of protected species, including marine mammals, to this database within 48 hours of the occurrence and following standard protocol.
In the unanticipated event that PIFSC fisheries research activities clearly cause the take of a marine mammal in a prohibited manner, PIFSC personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the PIFSC Director (or designee). The incident must be reported immediately to OPR and the NMFS Pacific Islands Regional Office. OPR will review the circumstances of the prohibited take and work with PIFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by PIFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of the incident;
(iii) Environmental conditions (
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s) (
(ix) Photographs or video footage of the animal(s).
In the event that PIFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that PIFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to PIFSC fisheries research activities (
In the event of a ship strike of a marine mammal by any PIFSC or partner vessel involved in the activities covered by the authorization, PIFSC or partner shall immediately report the information described above, as well as the following additional information:
(i) Vessel's speed during and leading up to the incident;
(ii) Vessel's course/heading and what operations were being conducted;
(iii) Status of all sound sources in use;
(iv) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
(v) Estimated size and length of animal that was struck; and
(vi) Description of the behavior of the marine mammal immediately preceding and following the strike.
PIFSC will also collect and report all necessary data, to the extent practicable given the primacy of human safety and the well-being of captured or entangled marine mammals, to facilitate serious injury (SI) determinations for marine mammals that are released alive. PIFSC will require that the CS complete data forms and address supplemental questions, both of which have been developed to aid in SI determinations. PIFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the PIFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs.
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 (
We note here that the takes from potential gear interactions enumerated below could result in non-serious injury, but their worse potential outcome (mortality) is analyzed for the purposes of the negligible impact determination.
In addition, we discuss here the connection, and differences, between the legal mechanisms for authorizing incidental take under section 101(a)(5) for activities such as those proposed by PIFSC, and for authorizing incidental take from commercial fisheries. In 1988, Congress amended the MMPA's provisions for addressing incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to develop a system suited to the unique circumstances of commercial fishing operations led NMFS to suggest a new conceptual means and associated regulatory framework. That concept, PBR, and a system for developing plans containing regulatory and voluntary measures to reduce incidental take for fisheries that exceed PBR were incorporated as sections 117 and 118 in the 1994 amendments to the MMPA. In
PBR is defined in section 3 of 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” (OSP) and, although not controlling, can be one measure considered among other factors when evaluating the effects of M/SI on a marine mammal species or stock during the section 101(a)(5)(A) process. OSP is defined in section 3 of the MMPA as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” An overarching goal of the MMPA is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock (N
Congress called for PBR to be applied within the management framework for commercial fishing incidental take under section 118 of the MMPA. As a result, PBR cannot be applied appropriately outside of the section 118 regulatory framework without consideration of how it applies within the section 118 framework, as well as how the other statutory management frameworks in the MMPA differ from the framework in section 118. PBR was not designed and is not used as an absolute threshold limiting commercial fisheries. Rather, it serves as a means to evaluate the relative impacts of those activities on marine mammal stocks. Even where commercial fishing is causing M/SI at levels that exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the commercial fishing context under section 118, NMFS may develop a take reduction plan, usually with the assistance of a take reduction team. The take reduction plan will include measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below the stock's PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather utilizes the take reduction process to further mitigate the effects of fishery activities via additional bycatch reduction measures. In other words, under section 118 of the MMPA, PBR does not serve as a strict cap on the operation of commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the impacts of incidental take from activities other than commercial fisheries, using it as the sole reason to deny (or issue) incidental take authorization for those activities would be inconsistent with Congress's intent under section 101(a)(5), NMFS' long-standing regulatory definition of “negligible impact,” and the use of PBR under section 118. The standard for authorizing incidental take for activities other than commercial fisheries under section 101(a)(5) continues to be, among other things that are not related to PBR, whether the total taking will have a negligible impact on the species or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to make the negligible impact finding or to authorize incidental take through multi-year regulations, nor does its companion provision at section 101(a)(5)(D) for authorizing non-lethal incidental take under the same negligible-impact standard. NMFS' MMPA implementing regulations state that take has a negligible impact when it does not “adversely affect the species or stock through effects on annual rates of recruitment or survival”—likewise without reference to PBR. When Congress amended the MMPA in 1994 to add section 118 for commercial fishing, it did not alter the standards for authorizing non-commercial fishing incidental take under section 101(a)(5), implicitly acknowledging that the negligible impact standard under section 101(a)(5) is separate from the PBR metric under section 118. In fact, in 1994 Congress also amended section 101(a)(5)(E) (a separate provision governing commercial fishing incidental take for species listed under the ESA) to add compliance with the new section 118 but retained the standard of the negligible impact finding under section 101(a)(5)(A) (and section 101(a)(5)(D)), showing that Congress understood that the determination of negligible impact and the application of PBR may share
Since the introduction of PBR in 1994, NMFS had used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries management-related provisions of the MMPA. Prior to the Court's ruling in
The MMPA requires that PBR be estimated in SARs and that it be used in applications related to the management of take incidental to commercial fisheries (
When considering PBR during evaluation of effects of M/SI under section 101(a)(5)(A), we first calculate a metric for each species or stock that incorporates information regarding ongoing anthropogenic M/SI from all sources into the PBR value (
When ongoing total anthropogenic mortality from the applicant's specified activities does not exceed PBR and residual PBR is a positive number, as a simplifying analytical tool we first consider whether the specified activities could cause incidental M/SI that is less than 10 percent of residual PBR (the “insignificance threshold,” see below). If so, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI for the marine mammal stock in question that alone (
Where the anticipated M/SI is near, at, or above residual PBR, consideration of other factors (positive or negative), including those outlined above, as well as mitigation is especially important to assessing whether the M/SI will have a negligible impact on the species or stock. PBR is a conservative metric and not sufficiently precise to serve as an absolute predictor of population effects upon which mortality caps would appropriately be based. For example, in some cases stock abundance (which is one of three key inputs into the PBR calculation) is underestimated because marine mammal survey data within the U.S. EEZ are used to calculate the abundance even when the stock range extends well beyond the U.S. EEZ. An underestimate of abundance could result in an underestimate of PBR. Alternatively, we sometimes may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, which could result in an overestimate of
In
Specifically, PBR was designed as a tool for evaluating mortality and is defined as the number of animals that can be removed while “allowing that stock to reach or maintain its [OSP].” OSP describes a population that falls within a range from the population level that is the largest supportable within the ecosystem to the population level that results in maximum net productivity, and thus is an aspirational management goal of the overall statute with no specific timeframe by which it should be met. PBR is designed to ensure minimal deviation from this overarching goal, with the formula for PBR typically ensuring that growth towards OSP is not reduced by more than 10 percent (or equilibrates to OSP 95 percent of the time). Given that, as applied by NMFS, PBR certainly allows a stock to “reach or maintain its [OSP]” in a conservative and precautionary manner—and we can therefore clearly conclude that if PBR were not exceeded, there would not be adverse effects on the affected species or stocks. Nonetheless, it is equally clear that in some cases the time to reach this aspirational OSP level could be slowed by more than 10 percent (
As discussed above, while PBR is useful in informing the evaluation of the effects of M/SI in section 101(a)(5)(A) determinations, it is just one consideration to be assessed in combination with other factors and is not determinative. For example, as explained above, the accuracy and certainty of the data used to calculate PBR for the species or stock must be considered. And we reiterate the considerations discussed above for why it is not appropriate to consider PBR an absolute cap in the application of this guidance. Accordingly, we use PBR as a trigger for concern while also considering other relevant factors to provide a reasonable and appropriate means of evaluating the effects of potential mortality on rates of recruitment and survival, while acknowledging that it is possible to exceed PBR (or exceed 10 percent of PBR in the case where other human-caused mortality is exceeding PBR but the specified activity being evaluated is an incremental contributor, as described in the last paragraph) by some small amount and still make a negligible impact determination under section 101(a)(5)(A).
We note that on June 17, 2020, NMFS finalized new Criteria for Determining Negligible Impact under MMPA section 101(a)(5)(E). The guidance explicitly notes the differences in the negligible impact determinations required under section 101(a)(5)(E), as compared to sections 101(a)(5)(A) and 101(a)(5)(D), and specifies that the procedure in that document is limited to how the agency conducts negligible impact analyses for commercial fisheries under section 101(a)(5)(E). In the proposed rule (and above), NMFS has described its method for considering PBR to evaluate the effects of potential mortality in the negligible impact analysis. NMFS has reviewed the 2020 guidance and determined that our consideration of PBR in the evaluation of mortality as described above and in the proposed rule remains appropriate for use in the negligible impact analysis for the PIFSC's fisheries research activities under section 101(a)(5)(A).
Our evaluation of the M/SI for each of the species and stocks for which mortality could occur follows. By considering the maximum potential incidental M/SI in relation to PBR and ongoing sources of anthropogenic mortality, we begin our evaluation of whether the potential incremental addition of M/SI through PIFSC research activities may affect the species' or stock's annual rates of recruitment or survival. We also consider the interaction of those mortalities with incidental taking of that species or stock by harassment pursuant to the specified activity (see Harassment section below).
We propose to authorize take by M/SI over the five-year period of validity for these proposed regulations as indicated in Table 16 below. For the purposes of the negligible impact analysis, we assume that all takes from gear interaction could potentially be in the form of M/SI.
We previously authorized the take by M/SI of marine mammals incidental to fisheries research operations conducted by the SWFSC (see 80 FR 58981 and 80 FR 68512), the NWFSC (see 83 FR 36370 and 83 FR 47135), and the Alaska Fisheries Science Center (AFSC) (see 84 FR 46788 and 84 FR 54893). However, this take would not occur to the same stocks for which we propose to authorize take incidental to PIFSC fisheries research operations; therefore, we do not consider M/SI takes from other science center activities. The final rule for the U.S. Navy's HSTT also authorized take of the Hawai'i stock of sperm whales by M/SI. Therefore, that authorized take by the Navy has been considered in this assessment. As used in this document, other ongoing sources of human-caused (anthropogenic) mortality refers to estimates of realized or actual annual mortality reported in the SARs and does not include authorized (but unrealized) or unknown mortality. Below, we consider the total taking by M/SI proposed for authorization for PIFSC to produce a maximum annual M/SI take level (including take of unidentified marine mammals that could accrue to any relevant stock) and compare that value to the stock's PBR value, considering ongoing sources of anthropogenic mortality (as described in footnote 4 of Table 16 and in the following discussion). PBR and annual M/SI values considered in Table 16 reflect the most recent information available (
The majority of stocks that may potentially be taken by M/SI (11 of 15) fall below the insignificance threshold (
In this section, we first consider stocks for which the proposed authorized M/SI falls below the insignificance threshold. Next, we consider those stocks with proposed M/SI above the insignificance threshold (
As noted above, for a species or stock with incidental M/SI less than 10 percent of residual PBR, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI that alone (
For these stocks with authorized M/SI below the insignificance threshold, there are no other known factors, information, or unusual circumstances that indicate anticipated M/SI below the insignificance threshold could have adverse effects on annual rates of recruitment or survival and they are not discussed further.
For false killer whales from the Hawai'i Pelagic stock, the annual potential M/SI due to PIFSC fisheries research activities is approximately 12 percent of residual PBR. PBR for the Hawai'i Pelagic stock is currently set at 9.3 and the annual average of known ongoing anthropogenic M/SI is 7.6, yielding a residual PBR value of 1.7. The annual average M/SI incidental to PIFSC research activity is 0.2, or 11.76 percent of residual PBR. The only known source of other anthropogenic mortality for this species is in commercial fisheries. The status of this transboundary stock of false killer whales is assessed based on the estimated abundance and estimates of mortality and serious injury within the U.S. EEZ of the Hawaiian Islands because estimates of human-caused mortality and serious injury from all U.S. and non-U.S. sources in high seas waters are not available, and because the geographic range of this stock beyond the Hawaiian Islands EEZ is poorly known. The False Killer Whale Take Reduction Plan (FKWTRP) was finalized in 2012 to reduce the level of mortality and serious injury of false killer whales in Hawaii-based longline fisheries for tuna and billfish (77 FR 71260; November 29, 2012). For the 5-yr period prior to the implementation of the FKWTRP, the average rate of mortality and serious injury to pelagic stock false killer whales within the Hawaiian Islands EEZ (13.6 animals per year) exceeded the PBR (9.3 animals per year). In most cases, the NMFS Guidelines for Assessing Marine Mammal Stocks (NMFS 2005) suggest pooling estimates of mortality and serious injury across 5 years to reduce the effects of sampling variation. If there have been significant changes in fishery operation that are expected to affect take rates, such as the 2013 implementation of the FKWTRP, the guidelines recommend using only the years since regulations were implemented. Using only bycatch information from 2013-2015, the estimated mortality and serious injury of false killer whales within the HI EEZ (4.1) is below the PBR (9.3) (Caretta
PBR is unknown for the Hawai'i stocks of dwarf and pygmy sperm whales (
The Kauai/Ni'ihau, Oahu, 4-Islands, and Hawai'i Islands stocks of bottlenose dolphins (Hawai'i Islands stock complex) were most recently assessed in the 2017 SARs (Caretta
PIFSC has requested take of rough-toothed dolphins by M/SI from the Hawai'i stock (0.6 per year) and from all stocks other than the Hawai'i stock (0.4 per year). The proposed take by M/SI for the Hawai'i stock of rough-toothed dolphins falls below the insignificance threshold. For rough-toothed dolphins from all stocks except the Hawai'i stock, PIFSC has requested an average of 0.2 takes by M/SI per year from longline fisheries research and 0.2 takes by M/SI per year from instrument deployments. The only other defined stock of rough-toothed dolphins in the PIFSC is the American Samoa stock. However, PIFSC will not be conducting longline fisheries research in the ASARA, therefore no take of rough-toothed dolphins from the American Samoa stock by M/SI incidental to longline fisheries research is expected or proposed to be authorized.
No abundance estimates are currently available for rough-toothed dolphins in U.S. EEZ waters of American Samoa. However, density estimates for rough-toothed dolphins in other tropical Pacific regions can provide a range of likely abundance estimates in this unsurveyed region. Using density estimates from other regions, NMFS has calculated a minimum abundance estimate (426-2,731 animals) and resulting PBR (3.4 to 22 animals per year) for the American Samoa stock of rough-toothed dolphins (Caretta
As described in greater depth previously (see “Acoustic Effects”), we do not believe that PIFSC use of active acoustic sources has the likely potential to cause any effect exceeding Level B harassment of marine mammals. We have produced what we believe to be precautionary estimates of potential
With the exception of the American Samoa stocks of spinner dolphins, rough-toothed dolphins, and false killer whales, marine mammals in the MARA, ASARA, and WCPRA are not assigned to stocks, and no current abundance estimates are available for these stocks or populations. Therefore, rather than presenting the proposed takes by Level B harassment as proportions of relevant stocks, the proposed take in these three research areas is grouped in Table 18 by species.
The acoustic sources proposed to be used by PIFSC are generally of low source level, higher frequency, and narrow beamwidth. As described previously, there is some minimal potential for temporary effects to hearing for certain marine mammals, but most effects would likely be limited to temporary behavioral disturbance. Effects on individuals that are taken by Level B harassment will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity (
Similarly, disturbance of hauled-out Hawaiian monk seals by researchers (expected in the HARA) are expected to be infrequent and cause only a temporary disturbance on the order of minutes. Monitoring results from other activities involving the disturbance of pinnipeds and relevant studies of pinniped populations that experience more regular vessel disturbance indicate that individually significant or population level impacts are unlikely to occur. PIFSC's nearshore surveys that may result in disturbance to Hawaiian monk seals are conducted infrequently, with each individual island visited at most once per year. While there is some slight possibility of an individual Hawaiian monk seal moving between islands and being exposed to visual disturbance from multiple PIFSC surveys over the course of the year, it is unlikely that an individual seal would be harassed more than once per year. When considering the individual animals likely affected by this disturbance, only a small fraction of the estimated population abundance of the affected stocks would be expected to experience the disturbance. Therefore, the PIFSC activity cannot be reasonably expected to, and is not reasonably likely to, adversely affect species or stocks through effects on annual rates of recruitment or survival.
For these reasons, we do not consider the proposed level of take by acoustic or visual disturbance to represent a significant additional population stressor when considered in context with the proposed level of take by M/SI for any species, including those for which no abundance estimate is available.
In summary, as described in the
Based on the analysis contained herein of the likely effects of the
As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(A) of the MMPA for specified activities. The MMPA does not define a threshold under which the authorized number of takes would be considered “small” and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
Please see Tables 17 through 19 for information relating to this small numbers analysis. The total amount of taking proposed for authorization is less than five percent for a majority of stocks, and the total amount of taking proposed for authorization is less than one-third of the stock abundance for all defined stocks.
Species without defined stocks typically range across very large areas and it is unlikely that PIFSC's proposed activities, with their small impact areas, would encounter, much less take more than one third of the stock. For species with defined stocks but no abundance estimates available (American Samoa stocks of false killer whale, rough-toothed dolphin, and spinner dolphin), we note that the anticipated number of incidents of take by Level B harassment are very low for each species (
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily 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 the issuance of regulations to the PIFSC. 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.
The regulations governing the take of marine mammals incidental to PIFSC fisheries research survey operations would contain an adaptive management component. The inclusion of an adaptive management component will be both valuable and necessary within the context of five-year regulations for activities that have been associated with marine mammal mortality.
The reporting requirements associated with this proposed rule are designed to provide OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. OPR and the PIFSC will meet annually to discuss the monitoring reports and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows OPR to consider new information from different sources to determine (with input from the PIFSC regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal research and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.
There are multiple marine mammal species listed under the ESA with confirmed or possible occurrence in the proposed specified geographical regions (see Table 3). OPR has initiated consultation with NMFS's Pacific Islands Regional Office under section 7 of the ESA on the promulgation of five-year regulations and the subsequent issuance of a 5-year LOA to PIFSC under section 101(a)(5)(A) of the MMPA. This consultation will be concluded prior to issuing any final rule.
NMFS requests interested persons to submit comments, information, and suggestions concerning the PIFSC request and the proposed regulations (see
The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. NMFS is the sole entity that would be responsible for adhering to the requirements in these proposed regulations, and NMFS is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
This proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, 50 CFR part 219 is proposed to be amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Pacific Islands Fisheries Science Center (PIFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to research survey program operations.
(b) The taking of marine mammals by PIFSC may be authorized in a Letter of Authorization (LOA) only if it occurs during fishery research within the Hawaiian Archipelago, Mariana Archipelago, American Samoa Archipelago, and Western and Central Pacific Ocean.
Regulations in this subpart are effective from [30 DAYS AFTER PUBLICATION DATE OF FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
Under LOAs issued pursuant to §§ 216.106 of this chapter and 219.67, the Holder of the LOA (hereinafter “PIFSC”) may incidentally, but not intentionally, take marine mammals within the area described in § 219.61(b) in the following ways, provided PIFSC is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with physical or visual disturbance of hauled-out pinnipeds;
(b) By Level B harassment associated with use of active acoustic systems; and
(c) By Level A harassment, serious injury, or mortality provided the take is associated with the use of longline gear, trawl gear, or deployed instruments and traps.
Notwithstanding takings contemplated in § 219.61 and authorized by a LOA issued under § 216.106 of this chapter and § 219.67, no person in connection with the activities described in § 219.61 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 219.67;
(b) Take any marine mammal species or stock not specified in such LOA;
(c) Take any marine mammal in any manner other than as specified in the LOA;
(d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 219.61(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 219.67 must be implemented. These mitigation measures shall include but are not limited to:
(a)
(2) PIFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
(3) PIFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.
(4) When deploying any type of sampling gear at sea, PIFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.
(5) PIFSC shall implement handling and/or disentanglement protocols as specified in the guidance that shall be provided to PIFSC survey personnel.
(b)
(2) PIFSC must reduce vessel speed to 10 knots (kt) or less when piloting vessels within 1 kilometer (km; as visibility permits) of marine mammals.
(c)
(2) PIFSC shall initiate marine mammal watches (visual observation) at
(3) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed within 500 meters (m) of the planned location in the 10 minutes before setting the trawl gear, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, NWFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further 10 minute observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted further than 500 m from the vessel shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions.
(4) PIFSC shall maintain visual monitoring effort during the entire period of time that trawl gear is in the water (
(5) If trawling operations have been suspended because of the presence of marine mammals, PIFSC may resume trawl operations when practicable only when the animals are believed to have departed the area. PIFSC may use best professional judgment in making this determination.
(6) PIFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval.
(7) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area.
(d)
(2) PIFSC shall initiate marine mammal watches (visual observation) no less than 30 minutes (or for the duration of transit between set locations, if shorter than 30 minutes) prior to both deployment and retrieval of longline gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. PIFSC must retrieve gear immediately if marine mammals are believed to be captured/entangled in a net, line, or associated gear and follow disentanglement protocols.
(4) PIFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, PIFSC shall take the most appropriate action to avoid marine mammal interaction. PIFSC may use best professional judgment in making this decision.
(5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, PIFSC may resume such operations when practicable only when the animals are believed to have departed the area. PIFSC may use best professional judgment in making this decision.
(6) When conducting longline research in Hawai'i, American Samoa, Guam, the Commonwealth of the Northern Marianas, or EEZs of the Pacific Insular Areas, PIFSC shall adhere to the requirements on commercial longline gear as specified in 50 CFR parts 229, 300, 404, 600, and 665, and shall adhere to the following procedures when setting and retrieving longline gear:
(i) When shallow-setting anywhere and setting longline gear from the stern, completely thawed and blue-dyed bait shall be used (two one-pound containers of blue-dye shall be kept on the boat for backup). Fish parts and spent bait with all hooks removed shall be kept for strategic offal discard. Retained swordfish shall be cut in half at the head; used heads and livers shall also be used for strategic offal discard. Setting shall only occur at night and begin 1 hour after local sunset and finish 1 hour before next sunrise, with lighting kept to a minimum.
(ii) When deep-setting north of 23° N and setting longline gear from the stern, 45 gram (g) or heavier weights shall be attached within 1 m of each hook. A line shooter shall be used to set the mainline. Completely thawed and blue-dyed bait shall be used (two 1-pound containers of blue-dye shall be kept on the boat for backup). Fish parts and spent bait with all hooks removed shall be kept for strategic offal discard. Retained swordfish shall be cut in half at the head; used heads and livers shall also be used for strategic offal discard.
(iii) When shallow-setting anywhere and setting longline gear from the side, mainline shall be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line
(iv) When deep-setting north of 23° N and setting longline gear from the side, mainline shall be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it shall be mounted at least 1 m forward from the stern corner. A specified bird curtain shall be used aft of the setting station during the set. Gear shall be deployed so that hooks do not resurface. 45 g or heavier weights shall be attached within 1 m of each hook.
(7) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area.
(e)
(2) Before approaching any shoreline or exposed reef, all observers shall examine any visible land areas for the presence of marine mammals. Scientists, divers, and coxswains shall follow best management practices (BMPs) for boat operations and diving activities, including:
(i) Maintain constant vigilance for the presence of marine mammals.
(ii) Marine mammals shall not be encircled or trapped between multiple vessels or between vessels and the shore.
(iii) If approached by a marine mammal, the engine shall be put in neutral and the animal allowed to pass.
(iv) All in-water work not already underway shall be postponed until whales are beyond 100 yards or other marine mammals are beyond 50 yards from the vessel or diver, unless the work is covered under a separate permit that allows activity in proximity to marine mammals. Activity shall commence only after the animal(s) depart the area.
(v) If marine mammals enter the area while in-water work is already in progress, the activity may continue only when that activity has no reasonable expectation to adversely affect the animal(s). PIFSC may use best professional judgment in making this decision.
(vi) Personnel shall make no attempt to feed, touch, ride, or otherwise intentionally interact with any marine mammals unless undertaken to rescue a marine mammal or otherwise authorized by another permit.
(vii) Mechanical equipment shall be monitored to ensure no entanglements occur with protected species.
(viii) Team members shall immediately respond to an entangled animal, halting operations and providing and onsite response assessment (allowing the animal to disentangle itself, assisting with disentanglement,
(f)
(2) Debris shall be retrieved in compliance with all Federal laws, rules, and regulations governing wildlife in the area, including maintaining a minimum distance of 50 yards from all monk seals and a minimum of 100 yards from female seals with pups.
(g)
(2) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions.
(3) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area.
(4) If a hooked fish is retrieved and it appears to the fisher (based on best professional judgment) that it has been damaged by a marine mammal, visual monitoring shall be enhanced around the vessel for the next ten minutes. Fishing may continue during this time. If a shark is sighted, visual monitoring may return to normal. If a marine mammal is seen in the vicinity of a bottomfishing operation, the gear shall be retrieved immediately and the vessel shall move to another sampling location where marine mammals are not present. Catch loss and a “move on” for marine mammals shall be tallied on the data sheet.
(5) If bottomfishing gear is lost while fishing, visual monitoring shall be enhanced around the vessel for the next ten minutes. Fishing may continue during this time. If a shark is sighted, visual monitoring may return to normal. If a marine mammal is observed in the vicinity, it shall be monitored until a determination can be made (based on best professional judgment) of whether gear is sighted attached to the animal, gear is suspected to be on the animal, or gear is not observed on the animal and it behaves normally. If gear is sighted with gear attached or suspected to be attached, procedures and actions for incidental take shall be initiated, as outlined in § 219.66. Gear loss and a “move on” for marine mammals shall be tallied on the data sheet.
(h)
(2) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the instrument or trap deployment shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the gear may be deployed. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. PIFSC must retrieve gear immediately if marine mammals are believed to be entangled in an instrument or trap line or associated gear and follow disentanglement protocols.
(a)
(b)
(2) Marine mammal watches shall be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated.
(c)
(2) PIFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.
(3) PIFSC shall coordinate with NMFS' Office of Science and Technology to ensure training and guidance related to handling procedures and data collection is consistent with other fishery science centers, where appropriate.
(d)
(2) For any marine mammal interaction involving the release of a live animal, PIFSC shall collect necessary data to facilitate a serious injury determination, when practicable.
(3) PIFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.
(4) PIFSC shall record marine mammal interaction information on standardized forms, which will be subject to approval by OPR. PIFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction.
(e)
(2) PIFSC shall report all incidents of marine mammal interaction to NMFS's Protected Species Incidental Take database within 48 hours of occurrence and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.
(3) PIFSC shall submit an annual summary report to OPR:
(i) The report must be submitted no later than ninety days following the end of a given calendar year. The first annual report must cover the period from the date of issuance of the LOA through the end of that calendar year and the entire first full calendar year of the authorization. Subsequent reports will cover only one full calendar year. PIFSC shall provide a final report within thirty days following resolution of comments on the draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, EM 300, and ADCP Ocean Surveyor (or equivalent sources) were predominant and associated pro-rated estimates of actual take;
(B) Summary information regarding use of all longline, bottomfishing, and trawl gear, including number of sets, tows,
(C) Accounts of surveys where marine mammals were observed during sampling but no interactions occurred;
(D) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why and, if released alive, serious injury determinations;
(E) Summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to the three-point scale, and distance of closest approach;
(F) A written description of any mitigation research investigation efforts and findings (
(G) A written evaluation of the effectiveness of PIFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; and
(H) A summary of all relevant training provided by PIFSC and any
(f)
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident including, but not limited to, monitoring prior to and occurring at time of the incident;
(iii) Environmental conditions (
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s) (
(ix) Photographs or video footage of the animal(s).
(2) In the event that PIFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
(3) In the event that PIFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.61(a) (
(4) In the event of a ship strike of a marine mammal by any PIFSC or partner vessel involved in the activities covered by the authorization, PIFSC or partner shall immediately report the information in paragraph (f)(1) of this section, as well as the following additional information:
(i) Vessel's speed during and leading up to the incident;
(ii) Vessel's course/heading and what operations were being conducted;
(iii) Status of all sound sources in use;
(iv) Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
(v) Estimated size and length of animal that was struck; and
(vi) Description of the behavior of the marine mammal immediately preceding and following the strike.
(a) To incidentally take marine mammals pursuant to these regulations, PIFSC must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, PIFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, PIFSC must apply for and obtain a modification of the LOA as described in § 219.68.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the
(a) An LOA issued under §§ 216.106 of this chapter and 219.67 for the activity identified in § 219.61(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the
(c) An LOA issued under §§ 216.106 of this chapter and 219.67 for the activity identified in § 219.61(a) may be modified by OPR under the following circumstances:
(1) OPR may utilize an adaptive management process to modify or augment the existing mitigation, monitoring, or reporting measures (after consulting with PIFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from PIFSC's monitoring reports from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the
(2) If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 219.67, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to codify product performance data requirements to support registration of pesticidal products claiming efficacy against three categories of invertebrate pests: Those identified to be of significant public health importance (
Comments must be received on or before May 21, 2021.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2020-0124, through the Federal eRulemaking Portal at
Please note that due to the public health emergency the EPA Docket Center (EPA/DC) and Reading Room was closed to public visitors on March 31, 2020. Our EPA/DC staff will continue to provide customer service via email, phone, and webform. For further information on EPA/DC services, docket contact information and the current status of the EPA/DC and Reading Room, please visit
Sara Kemme, Mission Support Division (7101M), Office of Program Support, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 347-8533; email address:
You potentially may be affected by this action if you are a producer or registrant of pesticide products making claims against the specified categories of invertebrate pests. The North American Industrial Classification System (NAICS) codes are provided to assist you and others in determining if this action might apply to certain entities. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. Other types of entities not listed could also be affected. Potentially affected entities may include, but are not limited to,
• Chemical Producers (NAICS 32532),
• Research and Development in the Physical, Engineering, and Life Sciences (NAICS code 541712),
• Colleges, universities, and professional schools (NAICS code 611310),
EPA is proposing to codify product performance data requirements for pesticide products claiming efficacy against three categories of invertebrate pests: Those identified to be of significant public health importance (
Product performance data (efficacy studies) document how well the product performs the intended function, such as killing or repelling, against an invertebrate pest. The product performance data requirements being proposed would inform the data needed to substantiate pesticidal claim(s) made on the label of the pesticide products. The proposed numerical performance standards specify the level of efficacy that would need to be achieved for EPA to deem the submitted data as acceptable for a product bearing the specified claim(s) against the invertebrate pest. For the most part, the data requirements that EPA is proposing for codification are consistent with EPA's current practices in data supporting applications for registration of a pesticide product that bears a pesticidal claim against one or more of these pests.
This proposed rule presents the data requirements in tabular format. These tables link the efficacy claim on the label of a pesticide product with the data needed to substantiate that claim. EPA is proposing that the studies submitted by an applicant demonstrate the product's efficacy in studies using specified test species and with results demonstrating that the product achieved a specified level of performance, called a performance standard. Numerical performance standards, such as the percent mortality, percent repellency, percent knockdown, or complete protection time would need to be achieved to deem the data acceptable for the purpose of supporting a product making a claim against an invertebrate pest. The Agency believes that codifying essential elements relating to test species and performance standards will provide the regulated community a better understanding of the data EPA believes to be necessary to support registration of a product that claims efficacy against invertebrate pests.
EPA is proposing to:
• Codify a new subpart R in 40 CFR part 158 entitled, “Product Performance for Products Claiming Effectiveness Against Invertebrate Pests;”
• Rename 40 CFR part 158, subpart E to “Product Performance for Products Claiming Effectiveness Against Vertebrate Pests, Products with Prion-related Claims, and Products for Control of Organisms Producing Mycotoxins” in order to add specificity to the title and reduce the potential for confusion with the proposed subpart R; and
• Revise the data requirements for biochemicals in 40 CFR 158.2070 and microbials in 40 CFR 158.2160 to clarify the requirements for claims that would be subject to both subpart R and either subpart U or V.
Additionally, EPA proposes to update 40 CFR 158.1(c) to insert references to the subparts to categorize them under the “scope of the subparts” section. EPA is also proposing to update subpart W at 40 CFR 158.2200(b) to insert a cross reference to the proposed subpart R to clarify the status of a product that bears
This action is issued under the authority of sections 3, 5, 10, 12, and 25 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136-136y), as amended. Under FIFRA section 3(c)(2)(A), EPA is required to specify “the kinds of information which will be required to support the registration of a pesticide and shall revise such guidelines from time to time.” EPA's codification of these data requirements is in 40 CFR part 158.
Additionally, the Pesticide Registration Improvement Extension Act of 2018 (PRIA 4) (7 U.S.C. 136 note, 133 Stat. 484) was enacted into law on March 8, 2019. PRIA was developed by a coalition of pesticide stakeholders representing seven different trade groups within the pesticide industry and public interest groups reflecting the environmental and farmworker safety communities. The result of this collaboration is that there are elements of PRIA 4 important to all the represented stakeholder entities in the coalition. PRIA 4 specifically establishes a new maintenance fee set-aside of up to $500,000/year to develop and finalize rulemaking and guidance for product performance data requirements for certain invertebrate pests of significant public health or economic importance. Specific to this rule, PRIA 4 requires EPA to finalize product performance data requirements by September 30, 2021. Specifically, the Act states that, “The Administrator shall, not later than September 30, 2021, issue regulations prescribing product performance data requirements for any pesticide intended for preventing, destroying, repelling, or mitigating any invertebrate pest of significant public health or economic importance specified in clauses (i) through (iv) of paragraph (B) [bed bugs; premise (including crawling insects, flying insects, and baits), pests of pets (including pet pests controlled by spot-ons, collars, shampoos, powders, or dips), and fire ants].”
This proposed rule includes product performance data requirements for the categories of invertebrate pests specified in PRIA 4 and, thus, is intended to satisfy the aforementioned rulemaking requirement. EPA notes that this proposed rule covers some invertebrate pests in addition to those specified in PRIA 4 due to their public health, economic, or ecological significance.
The following objectives were considered by EPA in developing this proposed rule:
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In conjunction with this proposed rulemaking, EPA prepared an economic analysis entitled, “Cost Analysis of the Proposed Product Performance Rule” (Ref. 1) which presents an analysis of the effects of codifying data requirements for product performance, as well as the effects of changes to label claim data requirements published simultaneously.
As noted previously, FIFRA mandates the Agency to register pesticides, including those used against invertebrate pests of public health importance, invertebrate wood destroying pests, and invasive invertebrate pests, under conditions of use such that the pesticide is of a composition to warrant the proposed claims. To make this finding, the Agency requires that registrants submit data demonstrating product efficacy against invertebrate pests of public health importance, invertebrate wood destroying pests, and invasive invertebrate pests. The product performance data requirements historically sought by the EPA and those being proposed in the rule are for claims against pests that either pose a threat to human health (
This rule, when finalized, will clarify data requirements and therefore improve efficiency and effective use of resources by both the Agency and industry. Moreover, this rule-making measure will serve the public by ensuring that appropriate efficacy data are available to substantiate public health pest claims. While experience over time has led to a fairly standardized set of data requirements for invertebrate pests of significant public health importance, wood-destroying insects, and invasive pests, codifying these data needs will ensure that new entrants to the field are clear about the information necessary to support registration. As a result, this rule, when finalized, would help alleviate uncertainties in the regulatory process and enhance transparency for stakeholders. The Agency is specifying data requirements for invertebrate pests of significant public health importance, wood-destroying insects, and invasive invertebrate pests to better indicate when certain data are needed or not. Consistent with 40 CFR 158.45 and proposed 40 CFR 158.1707, on a case-by-case basis the Agency may consider alternative data that are more appropriate than the proposed requirements considering the intended purpose and pesticidal claims of a pesticidal product.
EPA estimates that the proposed rule would result in cost savings of one million dollars annually across all registrants seeking label claims against invertebrate pests of significant public health importance, wood-destroying insects, and invasive invertebrate pests, equivalent to about $17,000 in savings per data package submitted to the Agency (Table 1). The average savings per registrant is $5,500 annually, considering that registrants do not submit products for review every year. This impact is expected to remain consistent over the next ten years, with total cost savings to industry of $1 million annually using either a 3% or a 7% discount rate. Over ten years, this amounts to about $8.5 million in savings at a 3% discount rate or about $7 million in savings at a 7% discount
EPA's registration program and efficacy review has substantial benefits for consumers. It ensures product efficacy and label consistency across products, increases consumer confidence in product efficacy, and reduces consumer search costs for effective products. This may help reduce the incidence of vector-borne diseases and damage from wood-destroying and invasive pests. Clarity in data requirements would enhance the efficiency of the registration process and aid new products to market, providing consumers with more product choices.
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As a general matter, no person may distribute or sell an unregistered pesticide in the U.S. (FIFRA section 3(a)). The process for obtaining a registration for a pesticide so that it may be distributed or sold begins with submission to EPA of an application with the necessary data to review the application request. Taking into account the information submitted, EPA must grant the requested registration, if it concludes, when considered with any restrictions imposed, that:
• Composition of the proposed pesticide is such as to warrant the proposed claims for it;
• Labeling for the proposed pesticide and other material required to be submitted comply with the requirements of FIFRA;
• The proposed pesticide will perform its intended function without unreasonable adverse effects on the environment; and
• When used in accordance with widespread and commonly recognized practice, the proposed pesticide will not generally cause unreasonable adverse effects on the environment.
FIFRA section 3(c)(5) further provides that EPA “may waive data requirements pertaining to efficacy, in which event the Administrator may register the pesticide without determining that the pesticide's composition is such as to warrant proposed claims of efficacy.” The proposed regulations identify the data requirements EPA believes are necessary to determine whether the proposed claims of efficacy are warranted, the opportunity for waiver is covered by 40 CFR 158.45 and proposed 40 CFR 158.1707.
EPA notes that “unreasonable adverse effects on the environment” means “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs, and benefits of the use of any pesticide . . .” as described in FIFRA section 2(bb). That definition was amended in 1998 as part of the Food Quality Protection Act, requiring EPA to consider “the risks and benefits of public health pesticide separate from the risks and benefits of other pesticides. In weighing any regulatory action concerning a public health pesticide under this Act, the administrator shall weigh any risks of the pesticide against the health risks such as the disease transmitted by the vector to be controlled by the pesticide.” While this rule proposes to codify product performance data requirements for invertebrate pests of
To determine whether the proposed use of the pesticide will not cause unreasonable adverse effects, EPA generally considers the maximum proposed use of a new pesticide to estimate the maximum exposure potential, evaluates the hazard data on the pesticide, and compares the rates at which effects are found based on well conducted studies with the maximum exposure estimate. However, for pesticides intended for use against pests of public health or economic importance, EPA has for some time considered whether the pesticide may cause human health, environmental or economic harm if its use as proposed will not work as intended or claimed. Data on the pesticide's performance under the conditions of use proposed are essential to make this determination.
Section 3 of FIFRA contains the requirements for granting and maintaining registration. FIFRA section 3(c)(2) provides EPA broad authority, before and after registration, to require scientific testing and submission of the resulting data to the Agency. Under this authority, EPA requires such testing and submission of data through rulemaking, see, 40 CFR part 158 or, for existing registrations, through issuance of a “data call-in.” (See, FIFRA section 3(c)(2)(B)). EPA may also request further data if the data submitted fail to adequately address an issue necessary for making the requisite statutory findings. (See, 40 CFR 158.75). Consistent with the requirements EPA has imposed and the data that have been identified as needed to review applications for registration of pesticides of significant health or economic importance, an applicant for registration must furnish EPA with data on the pesticide, its composition, toxicity, potential human exposure, environmental properties and ecological effects, as well as its product performance (efficacy).
FIFRA section 3(g) mandates that the registrations of all pesticides are to be periodically reviewed. Periodic review is needed as changes in science, public policy, and pesticide use practices occur over time. The registration review program was implemented via a regulation promulgated on August 9, 2006 (71 FR 45719) (FRL-8080-4). Therefore, starting in 2006, registration review began to replace EPA's reregistration program as the mechanism for systematic review of existing pesticides. The registration review process begins by reviewing the available information in the possession of the Agency and then determining if and what data are needed to assess the current risks of a particular pesticide. Thus, as with registration, the data needed and the scope and depth of the Agency's review for registration review continue to be tailored to the specific circumstances and use of the registered pesticide. Section 3(g)(2)(A) of FIFRA authorizes EPA to require generation and submission of additional data necessary for registration review pursuant to its authority under FIFRA section 3(c)(2)(B).
The existing regulatory data requirements for product performance for pesticides are contained in 40 CFR part 158, subpart E, and for the most part the table in 40 CFR 158.400(d) is specific to vertebrates (
Although the updating of 40 CFR part 158 regulations began years ago, EPA made no changes to the product performance data requirements at 40 CFR part 158, subpart E, as they relate to the invertebrate pests covered in this action. (72 FR 60934, October 26, 2007) (FRL-8106-5). However, EPA did make some changes to the data requirements for biochemical and microbial pesticides by codifying product performance data requirements for biochemical and microbial pesticides in 40 CFR 158.2070 and 158.2160, subparts U and V, respectively (72 FR 60934, October 26, 2007) (FRL-8106-5). That final rule adopted the requirement for applicants to submit product performance data to support registration of biochemical and microbial products claiming effectiveness against invertebrate species.
This rulemaking proposes to create a new subpart R for invertebrate product performance requirements to capture the updates to the product performance data requirements for pesticides, and to make conforming edits to subparts E, U, V, and W.
Since the early years of the registration program, EPA has waived the need for product performance data for many pesticides, consistent with the congressional authority in FIFRA section 3(c)(5), to waive such data and to not make the finding that a proposed pesticide's “composition is such as to warrant the proposed claims for it.” (44 FR 27932, May 11, 1979) (FRL-2767-8). However, EPA did not codify its early intent not to waive product performance data for pesticides intended for use against certain invertebrate pests. Specifically, in May of 1979, EPA initially announced the need for product performance data for “[i]nvertebrate control products intended for use in or on humans (or in or on pets for control of pests which attack humans) to control pests such as fleas, mites, lice, ticks, biting flies, and mosquitoes” and for“[i]nvertebrate control products intended for use either in premises or in the environment to control pests of sanitary or public health significance such as mosquitoes, biting flies, ticks, fleas, houseflies, cockroaches, fire ants, hornets, wasps, poisonous spiders, scorpions, centipedes, and bedbugs.” (44 FR 27932, May 11, 1979) (FRL-2767-8). In contrast, in other subsequent rulemaking actions, EPA announced its intent to require product performance data only for products “where lack of control would clearly result in adverse health effects” (47 FR 40659, September 15, 1982) (FRL-2138-1) or where “control cannot reasonably be observed by the user . . .” (47 FR 40659, 40661) because other pests were more of an aesthetic and nuisance problem rather than one of public health.
Ultimately, EPA's final part 158 rule announced that EPA had “decided to rescind the proposed efficacy data waiver with respect to vertebrate control agents intended for control of pests that
In 2002, EPA issued Pesticide Registration Notice (PRN) 2002-1 in compliance with the requirement in FIFRA section 28(d) to coordinate with United States Department of Health and Human Services (HHS) and United States Department of Agriculture (USDA) in identifying pests of significant public health importance. The list of pests identified in that PRN was “derived in large part from review of the pesticide/pest combinations for which efficacy (product performance) data are generally required to be submitted and reviewed prior to registration.” (Ref. 2). EPA is the process of updating this document and has recently made an updated draft available for public comment (Ref. 2).
The primary goal of this proposal is to assure that pesticide products claiming effectiveness against an invertebrate pest of significant public health or economic importance perform effectively. This action addresses both health concerns and economic consequences stemming from pesticide products that might not perform as claimed on the label. EPA acknowledges that use of the term arthropod would include all the pests identified in this document. However, product performance data for additional invertebrate species, such as (but not limited to) gastropods (snails and slugs) that serve as intermediate parasite hosts or invasive mussels of ecological concern could be needed in the future. To account for the potential for future data needs, EPA will use the terms invertebrates or invertebrate pests in reference to pests in all three categories (pests of significant public health importance, invasive species, and wood-destroying insects).
Consistent with the regulatory text in 40 CFR 158.400(e)(1) and as noted in PRN 2002-1 and PRN 96-7: Termiticide Labeling, (Ref. 3). EPA has regularly exercised its discretion to require submission of product performance data for pesticides intended for use against invertebrate pests of significant public health importance and of product performance data on pesticides intended for use against invertebrate pests of significant economic importance. Since 1984, particularly for insect repellents, the awareness of the incidence and severity of mosquito- and tick-borne diseases in the U.S. has changed. Mosquitoes and ticks are not merely nuisance pests: The Centers for Disease Control and Prevention (CDC) has determined that a single bite can transmit sufficient infectious material,
If a person can become ill because of a single insect bite, a person using an ineffective insect repellent may not have the opportunity to realize that the insect repellent did not work as expected and then correct the situation by purchasing another product. Given the nature of these and other mosquito- and tick-borne diseases, an ineffective insect repellent can have serious and sometimes fatal consequences to a person's health.
Consequences can also include both health and economic impacts. For example, the common bed bug (
• Allergic reactions to the bed bug bites, which can range from no reaction to a small bite mark to, in rare cases, anaphylaxis (severe, whole-body reaction).
• Secondary infections of the skin, such as impetigo, ecthyma, and lymphangitis.
• Mental health impacts on people living in infested homes. Reported effects include anxiety, insomnia and systemic reactions. (Refs. 7 and 8).
Bed bug infestations are also an economic burden on society. The economic losses from health care, lost wages, lost revenue and reduced productivity can be substantial. The cost of effectively eliminating bed bugs may be significantly more than the cost of eliminating other pests because bed bug control usually requires multiple visits by a licensed pest control operator and diligence on the part of those who are experiencing the infestation. Control in multi-family homes is much more difficult than in single family homes because bed bugs frequently travel between units, either by direct transport by humans or through voids in the walls. Thus, there are additional costs and complexities associated with coordinating and encouraging participation from multiple residents. Also, if the pesticide product claiming to treat bed bugs is not effective and families are forced into repeated (and expensive) cycles of re-treatment, then serious health and economic impacts can occur.
While wood-destroying insects/structural pests are not pests of significant public health importance, they are similar in that the consequences of ineffective treatments can be severe. Unfortunately, the effectiveness of a treatment to protect a wooden structure is not readily apparent to the applicator at the time of application or during the occupancy of the building or home. It is only after the damage becomes apparent that the extent of needed repairs is determined. There is a potential for significant financial loss to the property owner. Thus, demonstrating the efficacy of pesticides intended to control structural pests has a unique importance. Data on
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Consumers purchase products that claim effectiveness against a pest of significant public health importance precisely to avoid the harm these pests can cause. Consumers have a reasonable expectation that the claims on the pesticide label have a scientific basis,
EPA believes that having reliable information concerning the effectiveness of pesticide products that claim effectiveness against invertebrate pests results in sound regulatory decisions and accurate information on the labeling. Accurate labeling claims provide consumers with information they need concerning the effectiveness of the pesticide.
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The guidelines themselves do not impose requirements. Instead, they provide recognized methods for conducting acceptable tests, guidance on reporting data, and definitions of terms. Since these are guidance, pesticide registrants are not required to use these guidelines to fulfill data requirements. Applicants may instead seek to fulfill the data requirements by other appropriate means or by using a non-guideline protocol. The applicant may submit a protocol of his own devising for the Agency to review. EPA notes that there is a PRIA fee category for submitting a protocol for EPA to review.
The guidelines identify thresholds for determining whether a product is effective. Since these thresholds are in guidance (not codified requirements), they are considered recommendations and not mandatory. EPA also acknowledges that the older (1998) guidelines, in particular, generally lack adequate, up-to-date guidance on efficacy data development, test protocols, and representative test species.
EPA notes that the Product Performance Guideline 810.1000 entitled, “Overview, Definitions, and General Considerations,” discusses that product performance data are needed for any product that “bears a claim to control pests that may pose a threat to human health.” This is specifically stated to include:
Public health uses of invertebrate control agents including, but not limited to, agents intended to control the following: Mosquitoes, biting flies, ticks, fleas, houseflies, cockroaches, fire ants, hornets, wasps, poisonous spiders, scorpions, biting midges, centipedes, bedbugs, human lice, and dust mites. (Ref. 12).
Those guidelines from 2004 and before require revision to remove any stated performance standards. Until the revisions can be made, this rule would supersede any species requirements or performance standards stated, or implied, in the guidelines applicable to invertebrate pests. EPA intends that any inconsistency that may exist between the guidelines and this rule should be resolved in favor of the regulations, once those regulations are finalized.
EPA has selected three pest categories for this proposed rule: Pests of significant public health importance, wood-destroying insects, and invasive species. The rationale for selection of these three categories follows.
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As indicated in PRN 2002-1 (page 1), the criteria for inclusion on the list were defined “broadly, to include pests that pose a widely recognized risk to significant numbers of people.”
The listing of invertebrate pests (pages 6-9) is specified by the taxonomic name, as not all members of a particular taxon may be considered a pest of significant public health importance. EPA takes this approach when only certain members of a taxonomic group may be of public health significance because labels usually do not identify specific individual species. However, even if the label did identify a specific species, most product users are not able to distinguish among the members of a taxonomic group (
The invertebrate species of significant public health importance identified in this proposed rule as requiring submission of product performance data are derived from the invertebrate pest list identified in PR Notice 2002-1. Differences that exist between the species identified in the PR Notice and this proposed rulemaking represent the evolution of our understanding of the testing required to support claims against pests of public health concern. These invertebrate pests pose a threat of injury, disease transmission and/or pathogen transfer, and allergen production. Table 3 provides the rationale for inclusion in this rule of an invertebrate pest as a pest of significant public health importance.
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West Nile Virus was first identified in the U.S. in New York in 1999. Since then, West Nile Virus spread throughout the country and cases have been reported in the 48 contiguous states. West Nile Virus is carried by common mosquitoes (primarily species of
• Serious Symptoms in a Few People—Approximately one in 150 people infected with West Nile Virus will develop severe illness. The severe symptoms can include high fever, headache, neck stiffness, stupor, disorientation, coma, tremors, convulsions, muscle weakness, vision loss, numbness and paralysis. These symptoms may last several weeks, and neurological effects may be permanent. This is referred to as neuroinvasive West Nile disease and may result in death.
• Milder Symptoms in Some People—Up to 20 percent of the people who become infected have symptoms such as fever, headache, and body aches, nausea, vomiting, and sometimes swollen lymph glands or a skin rash on the chest, stomach and back. Symptoms can last for as short as a few days, though even healthy people have become sick for several weeks. This is referred to as West Nile Fever.
• No Symptoms in Most People—Approximately 80 percent of people (about 4 out of 5) who are infected with West Nile Virus will not show any symptoms at all.
Today, experts believe West Nile Virus is established as a seasonal epidemic in North America that flares up in the summer and continues into the fall. Persons over 50 years of age have the highest risk of severe disease. (Ref. 13).
The Zika virus spreads to people primarily through the bite of an infected Aedes species mosquito (
In the past 20-25 years, Lyme Disease has increased in geographical distribution and in number of cases. The disease is carried by blacklegged (deer) ticks (
The first sign of infection is usually a circular rash, occurring in approximately 70 to 80% of infected persons. It begins at the site of a tick bite after a delay of 3-30 days and may gradually expand over a period of several days. The center of the rash may clear as it enlarges, resulting in a bull's-eye appearance. Patients also experience symptoms of fatigue, chills, fever, headache, and muscle and joint aches, and swollen lymph nodes. In some cases, these may be the only symptoms of infection.
Untreated, the infection may spread to other parts of the body within a few days to weeks, producing an array of discrete symptoms. These include loss of muscle tone on one or both sides of the face (called facial or Bell's palsy), severe headaches and neck stiffness due to meningitis, shooting pains that may interfere with sleep, heart palpitations and dizziness due to changes in heartbeat, and pain that moves from joint to joint. Many of these symptoms will resolve, even without treatment.
After several months, approximately 60 percent of patients with untreated infection will begin to have intermittent bouts of arthritis, with severe joint pain and swelling. Large joints are most often affected, particularly the knees. In addition, up to 5 percent of untreated patients may develop chronic neurological complaints months to years after infection. These include shooting pains, numbness or tingling in the hands or feet, and problems with concentration and short-term memory.
Most cases of Lyme Disease can be cured with antibiotics, especially if treatment is begun early in the course of illness. However, a small percentage of patients with Lyme disease have symptoms that last months to years after treatment with antibiotics. (Refs. 18 and 19).
Rocky Mountain Spotted Fever is the most severe tick-borne rickettsial illness in the U.S. This disease is caused by infection with the bacterial organism
EPA believes that tick and mosquito repellents have roles in disease prevention. Today, there is renewed interest in methods of preventing transmission of these diseases. CDC and other public health authorities have determined that efficacious insect repellents have a primary role in a multi-barrier approach in protecting the public from insect or tick-borne diseases. CDC recommends several personal protective practices to prevent tick and mosquito bites: One of the most prominent and consistent messages is to use an insect repellent containing an EPA-registered active ingredient. (Refs. 22 and 23).
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Both the EPA and the CDC believe that an integrated pest management program that combines both chemical and non-chemical treatments is the most effective way to control bed bugs. Among the integrated pest management methods, use of an effective pesticide product, labeled for use against bed bugs, applied according to the label directions is often necessary to control the population of bed bugs. (Ref. 8).
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As previously explained, structural pests differ from pests of significant public health importance because health of individuals is not imperiled. However, the effectiveness of the treatment is not readily apparent to the applicator at the time of application or
The Agency believes that registration of a [termiticide] product demonstrating less than five (5) years of efficacy for control of termites is generally not appropriate from a safety or efficacy standpoint, considering the costs of treatment and the potential damage that could occur. The Agency does not believe that the homeowner should be subjected to such costly protection as would occur with products that are only efficacious for one year. Such products could, quite possibly, pose unreasonable adverse effects to the environment and/or humans because of higher risks than longer-acting alternatives. The more frequent treatments required could result in greater exposure and risk, or lower benefits, because of being less effective if not retreated, or more expensive if retreated.
EPA has always required efficacy data to be submitted by registrants to demonstrate that termiticides perform their intended function as claimed. EPA has reviewed such data prior to registration to assure that the benefits of the use would outweigh the potential risks.
On February 8, 1999, President Clinton signed The Executive Order 13112 (64 FR 6183) (February 8. 1999), which is intended to “. . . to prevent the introduction of invasive species and provide for their control and to minimize the economic, ecological, and human health impacts that invasive species cause . . . .” The Executive Order directed each federal agency to use relevant programs and authorities to:
• Prevent the introduction of invasive species;
• Detect and respond rapidly to and control populations of such species in a cost-effective and environmentally sound manner;
• Monitor invasive species populations accurately and reliably;
• Provide for restoration of native species and habitat conditions in ecosystems that have been invaded;
• Conduct research on invasive species and develop technologies to prevent introduction and provide for environmentally sound control of invasive species; and
• Promote public education on invasive species and the means to address them.
Invertebrate invasive species can impose serious economic costs by causing or vectoring diseases against native species that have little or no natural defenses. For example, an invasive species of significant note is the emerald ash borer, a wood boring beetle that is native to Asia. The emerald ash borer kills ash trees. Its presence was reported in southeast Michigan and Windsor, Ontario in 2002. Since then it has spread to at least 35 states and five Canadian provinces. Infested areas are under quarantine and restrictions have been imposed on moving fire wood. EPA has registered several pesticide products for use against the emerald ash borer after reviewing submitted efficacy data. (Ref. 24)
Another invasive invertebrate species, the Asian longhorned beetle, is also native to Asia and was first discovered in New York in 1996. The Asian longhorned beetle kills maple trees and other hardwoods. (Ref. 25). A very serious situation/crisis exists in New England, and USDA has established an extensive eradication program. EPA has also registered several products for use against the Asian longhorned beetle.
Invertebrates such as the emerald ash borer and the Asian longhorned beetle kill trees over very large geographic areas, thus, having substantial ecological and economic impacts by destroying both urban cover and forests used for recreation purposes and timber stands. According to a 2011 analysis (Ref. 26) entitled, “Economic Impacts of Non-Native Forest Insects in the Continental United States,” the following five categories of expenditures and losses can be used to illustrate impacts on forests.
• Federal government expenditures (survey, research, regulation, management, and outreach),
• Local government expenditures (tree removal, replacement, and treatment),
• Household expenditures (tree removal, replacement, and treatment),
• Residential property value losses, and
• Timber value losses to forest landowners.
Within the 2011 analysis were cost estimates using the five previously described categories of the damage caused by three types of invasive insects: Borers, sap feeders, and foliage feeders. Since some of the economic categories overlap, the total sum of all economic categories would include some double counting. However, the total of the insect types can be summed without double counting, which means that it is appropriate to sum the columns, but not the rows. Table 4 shows that most of the costs are borne by local governments and households, and the total damage is several billion dollars.
Pesticide products are an important tool for managing the spread of an invertebrate invasive species and the related significant economic impacts. The availability of pesticide products with proven performance against an invasive species is important to slowing the spread of the invasive species. When circumstances necessitate the submission or citation of reliable data to support claims for controlling invasive
Due to the sudden appearance and often rapid spread of invasive species, EPA does not presently propose to codify a comprehensive list of all the specific invasive species for which product performance data might be deemed necessary. At this time, EPA is specifically proposing to codify product performance data submission requirements for the emerald ash borer and the Asian longhorned beetle. The submission of product performance data to support claims for effectiveness against other invasive invertebrate pests will be considered on a case-by-case basis.
EPA has identified pest groupings on the basis of the biology and life history characteristics of the pests identified as public health or wood destroying pests. (Ref. 28). The groupings are taxonomically based. “Pest groups” and “pest sub-groups” are designations simply intended to convey the fact that some pests groups are part of larger groups. Therefore, when practical, “pest sub-groups” have been identified to define a meaningful subset of the larger group.
EPA developed the pest groups and pest sub-groups with the intention that product performance testing performed on a particular species can adequately represent all members of the pest group (or pest sub-group). The Agency intends these pest groupings to decrease data submission burdens on applicants and data review burden on the Agency as well as increasing the consistency, reliability, and integrity of data submitted to EPA. In some cases, EPA is proposing pest-specific claims, in addition to group and sub-group claims.
To develop these groupings, EPA considered species sensitivity. In certain cases, one member of a pest grouping is known to be significantly harder to kill, control, or repel than other members of the grouping. If product performance testing is performed using the species that is harder to kill, control, or repel, then logically, it can be assumed that the results of this testing can be extrapolated to other members of the grouping. Additional considerations included the availability of species in a laboratory setting, the occurrence of species over wide areas and/or those species most commonly associated with transmission of diseases to humans.
EPA is proposing to codify product performance data requirements pertaining to registration of pesticide products claiming efficacy against certain invertebrate pests. The proposed data requirements are consistent with the Agency's current practices concerning the data needed to register a pesticide product that claims effectiveness against invertebrate pests.
The proposed data requirements are presented, as appropriate, in table formats, with the needed data specified according to the claim on the label, the species to be tested, and the performance standards to be met. Once final, the regulations will provide the regulated community and other interested parties a better understanding of the data required to support registration of a pesticide product making a claim against an invertebrate pest identified to be a public health concern (
The Agency is proposing to title the new subpart R in part 158, “Product Performance for Products Claiming Effectiveness Against Invertebrate Pests.” The existing product performance data requirements in subpart E will be renamed “Product Performance for Products Claiming Effectiveness Against Vertebrate Pests, Products with Prion-related Claims, and Products for Control of Organisms Producing Mycotoxins.” Additionally, EPA is proposing conforming edits to subparts U, V, and W.
1.
Additionally, proposed 40 CFR 158.1700 provides a set of instructions on how to determine the product performance data required to support the pesticide product use for which registration is sought. This includes referring to all parts of subpart R, identifying the claims intended to be made on the product labeling, reviewing and understanding the performance standards that must be met or exceeded for the identified claims against the target pests, and understanding all applicable test notes.
2.
During the 2013 SAP, EPA received public comments and feedback from the SAP on the proposed definitions in the Technical Support Document (TSD) provided to the SAP. (Ref. 28). In addition, the SAP recommended several additional definitions that should be considered under this proposed rulemaking. After considering the comments provided, and based on the data requirements being proposed in this rulemaking, the proposed definitions represent those that are most essential for understanding the requirements and regulatory text of the proposed subpart R. For those definitions that the SAP and public commenters provided feedback on or that were recommended then, but not included in this proposal, EPA intends to consider the utility of those definitions and will consider incorporating them into future guidance and rulemakings. The SAP and public comments on definitions associated with product performance data requirements are available in the docket for the SAP [EPA-HQ-OPP-2012-0574]. EPA's response to those comments are discussed in this document and associated docket. Other definitions included in the TSD have since been adopted in testing guidelines.
Where applicable, EPA derived the proposed subpart R definitions from existing guidelines. The definition for
In the TSD presented to the 2013 SAP, EPA explained a pesticide for use against invertebrates and meeting one of the following circumstances might be characterized as making a public health pest claim requiring submission of product performance data:
• A claim is made to control, kill, knockdown, and/or repel specific invertebrate organisms that are directly or indirectly infectious or pathogenic or injurious to humans (or both humans and animals). For example: A claim is made to repel mosquitoes and/or ticks. Both mosquitoes and ticks transmit disease to humans. Or, a claim is made to kill bed bugs. Bed bugs are injurious to humans.
• The pesticide product is used in public health programs for vector control or for other recognized health protection uses to prevent or mitigate threats to public health.
• The pesticide product contains one or more ingredients that, under the criteria in 40 CFR 153.125(a), is an active ingredient with respect to a public health organism and there is no other functional purpose for the ingredient in the product.
• The pesticide product is similar in composition to a registered pesticide product that makes explicit public health claims for control of invertebrate organisms.
EPA still agrees that these circumstances, in principle, identify the kinds of pesticides for which product performance data may be necessary. However, EPA is not proposing to codify the term “public health pest claim” as a means of identifying when data are required. Such a term is not necessary given the proposed regulatory text includes sections that specify the invertebrate pests and invertebrate pest groups/subgroups that would be subject to the proposed product performance data requirements if the pesticide is intended for use against those pests. EPA requests comment on whether there is utility in codifying an overarching definition of a “public health pest claim” for the purposes of subpart R, and if so, whether the definition presented to the SAP is appropriate.
In the 2013 TSD EPA wrote that:
EPA believes that the circumstances presented in the 2013 TSD, in principle, identify the kinds of pesticides for which product performance data may be necessary. EPA also notes that existing regulations at 40 CFR 158.2204 provides definitions for a “public health claim” and a “nonpublic health claim” as they pertain to antimicrobial pesticide claims. EPA is not proposing to make any modifications to that provision, and any definition for a “public health pest claim” added to subpart R would be applicable only within proposed subpart R.
3.
Application categories describe how and/or where the product is intended to be applied or used. The proposed application categories were derived after consideration of current practices and review of the application sites included in the Harmonized Test Guidelines (810.3000 through 810.3900). Oftentimes, these application categories will be used on pesticide product labeling, and, therefore, may be identified as a product performance labeling claim within the data requirement tables. Similar to the definitions in 40 CFR 158.1701, EPA received SAP feedback on some of the application category definitions. (Ref. 29). The application categories proposed in 40 CFR 158.1703 represent EPA's responses to that feedback for the application categories as applicable. These application categories are referred to in the portions of the proposed regulatory text for the wood-destroying invertebrate pests.
4.
a.
Complete protection time (CPT) is defined in Guideline 810.3700 as “the time from application of a repellent until efficacy failure as it is defined in each study—for example, the time from application until the first efficacy failure event confirmed within 30 minutes by a second similar event.” CPT has been the existing practice for determining efficacy of skin-applied insect repellents since the guideline was finalized in 2010. EPA presented this concept, along with a proposed minimum protection time of 2-hours, to the SAP in the TSD, as a means of ensuring that a skin-applied repellency product protects for a minimum amount of time given the potential variability of product results across different people.
The Agency believes that establishing a minimum CPT for skin-applied repellency products should be required because of the large variability in protection times experienced by susceptible individuals in the population. The SAP agreed that this was a reasonable standard, stating that “[i]f CPT is to be used, a minimum CPT of 2 hours was suggested by the Panel as a minimal criterion for product registration . . . A repellent of shorter duration may not provide sufficient, useful protection in practical terms and will give consumers a false sense of protection.” (Ref. 29).
Additionally, EPA is proposing regulatory text for skin-applied products that reinforces that any testing required under part 158 which involves any human subjects must comply with all applicable requirements under 40 CFR part 26. For example, 40 CFR part 26 requirements are pertinent to 40 CFR part 158 testing requirements if the testing involves intentional exposure of human subjects. Protocols for such testing must be submitted to EPA for review prior to study initiation. Those protocols determined by EPA to involve
b.
In the TSD presented to the SAP, EPA was considering performance standards of 95% for all other pest claims, with the exception of mites, lice, carpenter ants, wood destroying beetles, and termites. The 95% performance standards were initially chosen because they represented widely accepted standards at the time. (Refs. 28, 29, 30 and 31). EPA proposed these standards as a way to “define the levels of product performance that would need to be met in order for the studies to support product registration and labeling,” and that proposing a specified threshold level or performance standard would be the “best means to assure that the products used to control invertebrate species are effective under conditions of use.” (Ref. 28).
In response to the proposal, both the SAP and public commenters believed that a 95% performance standard would create a burden for unattainable results and would be cost prohibitive in most situations, particularly for large scale field trials, or in general, any field trial using a 100% standard expectation. They argued that a minimum 90% performance under controlled laboratory conditions would be adequate. (Refs. 28 and 29). While they made this recommendation, the SAP stated that in special cases, EPA should retain the authority to overrule these standards if proper justification is provided by the applicants with regard to why the standards should not be applicable to a particular product. Additionally, the SAP stated that registrants should be allowed to compete by achieving higher than required performance standards, proving the superiority of their products.
After considering the SAP and public comments, with the exception of pests such as human mites, carpenter ants, termites, and wood-destroying beetles, EPA is proposing performance standards of 90% or greater instead of 95%. EPA believes that this standard will enable acceptance of registrations for products that provide a satisfactory level of control. Human mites and lice will retain a 100% standard, while the wood-destroying pests will have a 95% or greater standard for prevention of damage to wood, except for non-structural wood preservative treatments, which will have a standard of 100%. The standards for human mites, lice, and wood-destroying pests will be discussed in more detail in other sections of this proposed rule.
5.
6.
7.
EPA notes that the Agency currently has authority to require data submission on a case-by-case basis when necessary to evaluate a pesticide product (see 40 CFR 158.75). This provision is intended to clarify that whether or not a claim is against an invasive species is a factor in determining whether product performance data is necessary to evaluate a pesticide.
8.
9.
10.
In addition to the group and sub-group claims, EPA is proposing to codify requiring product performance data for a number of pest-specific claims. As previously noted, the representative test species were selected on the basis of vigor of the pest species and the likely ability of the species to serve as an adequate surrogate for other pests in the group, as well as other factors including their availability for laboratory testing, ubiquity, and whether they are one of the primary drivers of the human health concerns within a grouping. (Ref. 1). The 2013 TSD envisioned that in many cases “[i]f representative taxa are provided, species specific data may not be required, as the group and any/all individual species within the group can be supported by supporting the general claim.” (Ref. 28).
For pests that are not listed as a “pest-specific claim” in proposed subpart R, EPA proposes that the data required to support a group claim would also be sufficient to support pest-specific claims for species within that group. For example, the pavement ant (
EPA requests comment on the pest-specific claims covered by this proposed rule and whether there should be additional pest-specific claims added to subpart R, or if some of the ones included in the rule are unnecessary.
The data requirements that EPA is proposing for codification are consistent with the Agency's current practices when considering the product performance data needed to register a pesticide product that bears a pesticidal claim against one or more of these pests or pest groups/sub-groups. FIFRA section 3(c)(2) directs EPA to specify the kinds of data that applicants and registrants must submit to EPA to support regulatory determinations under FIFRA. The data requirements for pesticide products are codified in 40 CFR part 158.
Product performance data (efficacy studies) document how well the product performs the intended function (such as killing or repelling) against an invertebrate pest. The product performance data needs being considered in this rule would link the labeling claim for pesticide products claiming efficacy against an invertebrate pest with the data needed to substantiate that claim. EPA views these standards as performance standards for the acceptability of data, and thus EPA views them as waivable under 40 CFR 158.45.
1.
As indicated in the TSD presented to the SAP, dog follicle mite infestations are typically commensal in nature, but can cause demodectic mange in susceptible animals. This can pose a serious risk to stricken individuals, which typically have pre-existing immune system issues. For this reason, a 100% performance standard is being considered for these applications.
Dust mites pose no direct threat of injury, disease transmission, or discomfort. However, dust mites are included as a pest of significant public health importance because they produce allergens in their feces and cast exoskeleton that can result in asthma and allergic reactions. EPA believes that it is impractical to expect complete elimination of the dust mite population in a structure. The focus should be to reduce the agent of concern (
During the SAP, one commenter indicated that for mites, the proposed performance standard of 100%, as considered by EPA, was too high. Instead the commenter advocated for 90%, while indicating that 95% would be achievable. (Ref. 33). The 90% standard is being proposed for some labeling claims for the dog follicle and dust mites, but for human itch or scabies mites, EPA disagrees with lowering the performance standard since scabies mites directly infect and are easily transferred among hosts. A human skin-applied topical repellent performance standard of ≥2-hour complete protection time is also being proposed.
EPA also notes that any testing conducted with human subjects must comply with all applicable requirements under 40 CFR part 26.
2.
During the SAP, the Panel noted that
3.
To make a claim against “ticks,” EPA is proposing to require a total of three hard tick species as representative of ticks in general. As presented in the TSD and based on recommendations from the SAP, products claiming “ticks” must test for the blacklegged tick (
In addition to the required test species for a “tick” labeling claim, EPA is also proposing specific parameters regarding required species for “ticks” under certain testing circumstances. These specific parameters include:
i. For products intended to be applied to dogs, testing is required on three species: Blacklegged tick (
ii. For products intended to be applied to cats, testing is required on three species: Blacklegged tick (
The species identified under each of these circumstances were identified as a result of their occurrence on dogs and cats and the biology/behavior of the ticks.
For a claim against cattle ticks, EPA is proposing testing on either the Southern cattle tick (
For a claim against soft ticks, EPA is proposing testing on the species
4.
One public commenter during the SAP questioned why EPA provided only one species for testing, stating that they believed this to be too restrictive. (Ref. 36). EPA chose the striped bark scorpion as the required test species because it is a larger species of scorpion, and larger species can be harder to kill. Using such a species as the required test species means greater certainty that testing on one species would be representative of testing on other species. The commenter did not provide the name of a species that they consider suitable for testing. The Agency would welcome information to better inform the decision on selection of a suitable test species for scorpions.
5.
For the performance standards, EPA is proposing standards consistent with proposed 40 CFR 158.1704.
6.
The SAP noted that centipedes are generally harmless and considered beneficial insects, behaving as active predators of other arthropod s within structures. Although a species such as the Florida blue centipede (
7.
8.
Historically, EPA has only required testing on the cat flea in order to make a “flea” claim. The cat flea is common and easy to rear in the laboratory. Additionally, because the cat flea is the most common species that infests pets, most of the available pesticide products target the cat flea.
In the SAP response to the TSD, the Panel suggested adding the oriental rat flea (
9.
For the “Cockroach” pest group claim, EPA has historically required testing on both the American cockroach and the German cockroach, and is proposing to codify this requirement. These are the most common cockroaches requested on product labels and are commonly controlled to halt the spread of asthma, allergy, and food contamination. The SAP was supportive of these species as the required test species for this pest group claim.
The SAP suggested adding
The Turkestan cockroach (
10.
For bot flies (excluding human bot fly), EPA is proposing to require testing on one of the three following species: Horse bot fly, throat bot fly, or the nose bot fly. The SAP suggested specifying the test species as
For the human bot fly, EPA is proposing testing on the human bot fly (
In addition to the three proposed options for bot flies, the SAP also suggested EPA consider the
For screwworms, EPA is proposing to require testing on either the screwworm (
For keds, EPA is proposing to require testing on the sheep ked. The sheep ked has historically been the representative species for a “keds” claim, and the SAP expressed general support of the Sheep ked as the required test species. Therefore, EPA is proposing to maintain this practice.
11.
For a “Filth Flies” pest group claim, EPA is proposing to require testing on the house fly (
In response, EPA included house flies and the option to select between blow flies and flesh flies because these types of flies move bacteria around from place-to-place when they land. This takes place by touching surfaces, as these flies generally do not bite. “Filth flies” is a large grouping and testing on two species provides greater assurance that the product would be effective against most members of the pest group. House flies are generally the smallest in size of these three groups and therefore may be more susceptible to insecticides. Testing against the larger filth flesh/blow flies reduces the likelihood of overestimating efficacy.
Additionally, the SAP suggested the cluster fly (
12.
One public commenter during the SAP asked why the species
Additionally, the SAP comments were much more extensive regarding mosquitoes, as the SAP response covered both required test species as well as how one arrives at conducting the tests to collect the data. These comments are, as follows:
The SAP also noted that for field testing of mosquitoes, certain species provided in EPA's list could not readily be obtained in a field test in the U.S.
In response, EPA agrees that a listing of specific mosquito test species as provided in the TSD was confusing when considered in the context of field testing. With lab testing and semi-field or “caged” testing a particular test species can be selected. The particular species selected for testing could depend on the colonies maintained by the laboratory, as well as the type of product being tested, and EPA believes providing a list of representative species that is comprehensive means that an appropriate species could be identified for a wide variety of product types or claims.
With regards to
With regards to
EPA agrees that
For testing of skin-applied insect repellents, EPA's Guideline 810.3700, entitled, “Insect Repellents to be Applied to Human Skin” provides specific guidance (page 27) on the choice of field testing sites. (Ref. 39). According to the Guidance, “Field tests for mosquito repellency should be conducted in at least two distinct habitats (
In field testing, a wide variety of species are encountered. Thus, for field testing, the applicant's submission will provide information on the species captured during the testing. EPA will review the data submitted to determine if a sufficient number and type of species were present. Generally, EPA expects three different genera to be present:
Claims against specific vector/disease combinations must be supported by testing of the specified vector. Additionally, because mosquitoes are high stakes vectors and because of the difficulty consumers have in differentiating between species, for a claim against any specific species of mosquito, all the required test genera must be tested.
EPA also agrees that certain species of the mosquitoes specified in the TSD might not be obtained in a field test. However, the purpose of providing multiple species is to offer flexibility in how one complies with the data requirements. In the proposal, EPA has not differentiated between what species may be more obtainable in a field versus laboratory test.
Additionally, two commenters provided other comments about how to obtain mosquito data, particularly in relation to using foreign data and foreign species as surrogate data. One commenter, for example, suggested that foreign data be considered acceptable as long as the study is conducted according to the 810.3700 guidelines. (Ref. 40). Another commenter indicated that foreign species could be useful if sufficient colonies of domestic species are not available (
13.
Since the SAP, the Agency has revised the proposed data requirements to be clearer than initially presented to the SAP. EPA proposed the pest group “Biting flies (excluding Sand flies)” to be consistent with experience on how the Agency receives labeling requests. Sand flies are vectors for Leishmaniasis, a parasitic disease that is found in parts of the tropics, subtropics, and southern Europe which can either cause skin sores or affect several internal organs (usually spleen, liver, and bone marrow). (Ref. 42). This differentiation improves the clarity and is consistent with how products have typically been labeled.
The Agency is also proposing to split the pest sub-groups further into “Large Biting Flies” and “Small Biting Flies (excluding Sand flies).” This is in response to the fact that periodically, the Agency receives requests for claims against large biting flies or claims against small biting flies. This proposal is to provide that flexibility in the codified data requirements.
During the SAP, the Panel suggested that the stable fly (
The SAP suggested adding
14.
For “Bed bugs,” one commenter indicated that only one species is important to the vast majority of consumers and thus only one species needs to be tested to support this kind of product registration. For this proposal, EPA agrees that testing to include only the common bed bug,
In the TSD, the EPA initially proposed a 95% performance standard for bed bug products. One commenter stated that the performance standard for bed bug control products that claim residual control and ovicidal control should be 90% rather the 95% standard in the TSD. Additionally, the commenter indicated that bed bug products need to have residual activity, because control of bed bugs is not possible via direct contact. They indicated that there must be residual activity in order for the product to claim “control” and if the product does not have residual activity, then this statement should be on the product label. The commenter also stated that a performance standard applicable to bed bug products that claim to kill bed bugs when bed bugs come into contact with a treated surface is needed. Therefore, EPA has decided to propose a performance standard of 90%, instead of the 95% in the TSD.
15.
Initially proposed as “True bugs (excluding bed bugs)” in the TSD, EPA is proposing to focus primarily on the two required test species, the conenose bug and the kissing bug. This proposal has now separated them as pest-specific claims since experience has shown that labeling and data are usually submitted with the intent of labeling for the specific pest.
During the SAP, one commenter asked why the common stink bug species is missing from “true bugs.” (Ref. 36). In response, the common stink bug is not a disease vector or otherwise a pest of significant public health importance, and therefore EPA did not include it as a test species in the TSD presented to the SAP. Since the “true bug” claims have changed in this group, stink bugs are no longer relevant to this group.
Similarly, the SAP suggested that both the conenose and the kissing bug be required test species. Both the kissing bug and the conenose bug (
16.
For colony claims, testing must be done specific to the species listed. For colony claims against the red and/or black imported fire ants, testing may be done on the red imported fire ant (RIFA) (
Data for the pharaoh ant (
Public comments on the 2013 SAP suggested that additional clarity was needed for categories such as “ants” where only certain members of the group would be considered pests of significant public health importance. (See,
The SAP also suggested adding the following ants to the “Ants (except carpenter ants)” group: European fire ant, odorous house ant, red imported fire ant (RIFA), tropical fire ant, thief ant, dark rover ant, hairy crazy ant, Caribbean crazy ant, yellow crazy ant, pavement ant, and
17.
For the pest group claim, EPA is proposing data on two yellowjacket species (one
For the pest-specific claims that were proposed, one commenter indicated that stinging bees and wasps, solitary and ground nesting Hymenoptera such as mud daubers, digger wasps/bees, and spider wasps should not be included as pests of significant public health importance. The commenter believed that these females use their stingers for hunting, not defense, which means that it is unlikely such a pest would pose a public health threat. (Ref. 40). Another commenter added that they are also beneficial insects. (Ref. 41). However, these insects can inflict painful stings that may cause life-threatening allergic reactions and therefore are considered pests of significant public health importance and incorporated into the pest-specific claims.
The Asian giant hornet,
18.
For bait treatment EPA is proposing a performance standard of 95% prevention of damage to wood for ≥3 years. For “Non-Structural: Wood Preservative Treatment,” EPA is proposing a 100% performance standard of prevention of damage to wood for ≥2 years. And for structural protection, EPA is proposing a performance standard of 95% prevention of damage to wood ≥5 years.
For carpenter ants, the SAP suggested adding the carpenter ant (
19.
For bait treatment EPA is proposing a performance standard of 95% prevention of damage to wood for ≥3 years. For “Non-Structural: Wood Preservative Treatment,” EPA is proposing a 100% performance standard of prevention of damage to wood for ≥2 years. And for structural protection, EPA is proposing a performance standard of 95% prevention of damage to wood ≥5 years.
One public commenter suggested that EPA consider adding a fourth genus also known as the lyctid beetles (
20.
For a claim against arboreal termites, EPA is proposing testing of one arboreal termite species:
For bait treatment, EPA is proposing a performance standard of 95% prevention of damage to wood for ≥3 years. For “Non-Structural: Wood Preservative Treatment” EPA is proposing a 100% performance standard of prevention of damage to wood for ≥2 years. And for structural protection, EPA is proposing a performance standard of 95% prevention of damage to wood ≥5 years.
The SAP suggested adding drywood termite (
The SAP and other commenters questioned the standard of “100% prevention of damage to wood” and thought that the lesser 95% or 90% would be more acceptable. EPA agrees with the comment and is proposing a 95% prevention of damage to wood standard. However, EPA notes that what constitutes a 95% standard is dependent on the type of study being performed. For example, for the standard U.S. Forest Service Concrete Slab field study, the 95% would be calculated such that any damage greater than nibbles to surface etching would be considered a failure; if a single plot had more than one instance of nibbles to surface etching in any of the standard five evaluation periods, this would also be a failure. A 95% success rate for the U.S. Forest Service Concrete Slab (CS) tests would be determined by the combined data for a product, by rate, in a given year. For non-structural wood preservative treatments, EPA is proposing a standard of 100% prevention of damage to wood for ≥2 years. Additionally, to be consistent with the majority of other pests, EPA is proposing the termite standards for direct applications to pests, surface applications, and spatial applications will be changed to a performance standard of 90%, consistent with proposed 40 CFR 158.1704.
21.
Due to the sudden appearance and often rapid spread of invasive species, except for the pests noted, EPA does not presently intend to list the specific invasive species for which product performance data might be deemed necessary. Instead, the submission of product performance data to support claims for effectiveness against invasive invertebrate pests will be considered on a case-by-case basis. Given the expectation of infrequent submission of such an application, a “case-by-case” approach is the most suitable. EPA recommends that applicants consult with the Agency when first considering a submission to place an invasive species on the label of a pesticide product. As part of the consultation, EPA would be able to provide information on protocol development and selection of test species. EPA generally expects to require product performance data for invasive species that are similar to the Asian longhorned beetle and emerald ash borer in that they have the potential to cause significant economic or ecological damage and the efficacy of products used against them cannot readily be determined at the time of application.
This proposal specifies that the Asian longhorned beetle and the emerald ash borer are two invasive pests for which product performance data must be submitted. The efficacy of the products used for their control typically cannot be determined until the season after application, and the EPA believes it appropriate to continue the practice of reviewing efficacy data for these invasive species.
In addition to the inclusion of product performance data requirements under the new subpart R, EPA is also proposing to revise and update the product performance data requirements language for biochemical and microbial pesticides in subpart U, 40 CFR 158.2070 and subpart V, 40 CFR 158.2160, in order to clarify the requirements for products that would be subject to both proposed subpart R and also subpart U or subpart V.
Subpart U (biochemical pesticides) and subpart V (microbial pesticides) currently require that product performance data be developed, and that each applicant must ensure through testing that the pesticide product is efficacious when used in accordance with label directions and commonly accepted pest control practices. Both subparts also state that EPA may require, on a case-by-case basis, submission of product performance data for any pesticide product registered or proposed for registration or amendment (see, 40 CFR 158.2070 and 40 CFR 158.2160). These requirements would not be modified by this proposal.
Subpart U (biochemical pesticides) and subpart V (microbial pesticides) also currently require that product performance data be submitted for each biochemical and microbial pesticide product that bears a claim to control public health pests, as the term is used in subparts U and V. This requirement is followed by a non-exhaustive list of public health pests. This includes pest microorganisms infectious to humans in any area of the inanimate environment or a claim to control vertebrates (including but not limited to: Rodents, birds, bats, canids, and skunks) or invertebrates (including but not limited to: Mosquitoes and ticks) that may
This proposal adds additional clarity by including a provision in subpart U (biochemical pesticides) and subpart V (microbial pesticides) stating that product performance data must be submitted for each product that bears a claim against an invertebrate pest that is covered by subpart R. This provision is intended to be coextensive with the requirements of subpart R, and broader than the currently existing requirements in subparts U and V related to “public health pests” in that it would also cover the wood-destroying beetles and invasive exotic species claims covered by subpart R.
Additionally, EPA notes that data requirements and the performance standards that determine the acceptability of data may be modified on a case-by-case pursuant to the provisions in 40 CFR 158.45 and 40 CFR 158.1707.
This action, if finalized, will have no immediate effect on existing registrations unless new information indicates an existing registration includes claims that are not sufficiently supported. When an application for registration or amended registration requests to put a claim(s) on its pesticide product's labeling for effectiveness against an invertebrate species that is covered by this action, the application would generally include submission of product performance data to support those claims for effectiveness.
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The HSRB typically includes independent experts in toxicology, exposure assessment, industrial hygiene, statistics, and bioethics, as well as an entomologist consultant. The HSRB provides EPA with advice, information, and recommendations on issues related to both the scientific and ethical aspects of human subjects research. The major objectives are to provide review and recommendations on the scientific and ethical aspects of research proposals and protocols, and reports of completed research with human subjects; and, when requested, advise on how to strengthen EPA's programs for protection of human subjects of research. EPA considers all recommendations from the HSRB before finalizing its reviews of proposed or final research.
The HSRB reports to the EPA Administrator through EPA's Science Advisor. Since 2006, the rigorous independent reviews conducted by EPA and the HSRB, as mandated by part 26, have resulted in research protocols designed to result in scientifically-sound data and to ensure the protection of human subjects involved in the research. In providing for the establishment of the HSRB, the regulations have reassured the public that all pesticide research involving intentional exposure to human subjects undergoes thorough independent and expert review based on scientific and ethical standards.
Under 40 CFR part 26, subpart K, protocols for research subject to the regulation's requirements must be submitted to EPA for review and evaluation before initiation of the study. The relevant information that must be included in the proposed research protocol is specified in 40 CFR 26.1125. EPA then evaluates the protocol and makes a determination about the scientific validity and reliability of the research as well as examining the ethical aspects of the research, in accordance with the conditions in 40 CFR 26.1603. EPA submits the protocol and supporting materials, as well as EPA's science and ethics reviews of the proposed research to the HSRB for review and comment. The members of the HSRB review the proposed research. Then in an open and transparent manner at a public meeting, members of the HSRB ask additional questions, provide their individual comments, and participate in a discussion which is documented in meeting minutes. Each final HSRB report contains the Board's responses to charge questions posed by EPA, as well as the final, approved advice of the HSRB. The research cannot be initiated until EPA approves the protocol, following its consideration of the HSRB's input and recommendations. The protocol will only be approved if EPA determines that the research conducted according to the protocol would meet the standards of 40 CFR 26, Subparts K and L. Information on the HSRB, including materials reviewed and recommendations can be found on the HSRB web page. (Ref. 44).
Once the research has been conducted, then all of the records relevant to the research, including raw data and records of ethical review, are submitted to EPA. EPA examines all submitted materials, considers the scientific and ethical conduct of the research, and provides the completed research and its evaluation of the completed research to the HSRB. The HSRB reviews the documents and discusses them at a public meeting in the same open and transparent manner. The HSRB issues a report of their findings following the meeting. EPA may rely on the results of completed human research involving intentional exposure of human subjects only if the research meets the standards referenced in part 26, subpart Q.
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Based on the HSRB review and comments, EPA revised the guideline and presented the revised guideline to the HSRB on June 23, 2010. EPA's Senior Policy Advisor for the Pesticide Program made a presentation titled, “OPP Policy Decisions Regarding Insect Repellent Efficacy Testing.” (Ref. 31).
The HSRB recommended several changes or clarifications for the revised guideline in its final report, (Ref. 47) including:
• Removal of the maximum-likelihood method requirement in the data analysis section;
• Clarification of recommendations regarding the use of positive controls, particularly with respect to the number of controls and the rationale for including them in the study;
• Careful consideration of recommendations regarding the recruitment and inclusion of so-called `vulnerable' populations; and
• Encouraging the use of study designs that will enable investigators to collect data that will allow quantitative measurement of repellent efficacy in addition to determining the complete protection time (CPT).
On August 6, 2010 (75 FR 47592), EPA announced the availability of the final guideline for Insect Repellents to be Applied to Human Skin (Guideline 810.3700).
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On March 19-20, 2013, EPA presented to the SAP a variety of issues for their consideration and response concerning the Scientific Issues Associated with Product Performance Data Needs for Pesticide Products Claiming Efficacy against Invertebrate Pests of Significant Public Health or Economic Importance. The meeting announcement, the Agency's presentations and support documents, public comments, and the comments by the SAP are available at
In separate actions EPA has developed and revised testing guidelines and continues to do so. While this rule refers to these guidelines, and recommends their use, they are not the subject of today's proposal. For informational purposes, EPA is providing a description of SAP meetings relevant to those guidelines.
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The proposed premises treatment guideline revisions presented to the SAP contained recommended test methodologies for a wide range of products intended to kill, control, flush, and/or knockdown invertebrate premises pests, such as cockroaches, ticks, mosquitoes, flies, and wasps. The guideline did not cover treatment of livestock or pets, wide area-mosquito control, or bed bug products. In addition to guidance for testing efficacy of direct pesticide application to pests, residual treatments, and cockroach and fly baits in the laboratory, the proposed guideline also included field testing methods for outdoor misting systems, Hymenoptera nest treatments, and outdoor foggers. Methods for resistance ratio determination and characterization of pest population strain susceptibility were also described.
The proposed RIFA treatment guideline revisions contained recommended test methodologies for evaluating the performance of pesticide products for the treatment and control of red imported fire ant colonies/mounds. The guideline did not cover premises treatments for RIFA workers/foragers, such as direct application to pests. Field tests for both mound- and area-applied pesticide products were proposed, along with accompanying laboratory studies for baits, barrier treatments, and insect growth regulators.
The meeting announcement, the Agency's presentations and support documents, and public comments are available at
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The Agency invites the public to provide comment on the proposed requirements and their basis. Specifically included within the Agency's requests for comments are suggestions which can be supported by scientific data for the Agency to consider during the development of the final rule. Specific comments are requested for:
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The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the person listed under
Pursuant to FIFRA section 25(a), EPA submitted the draft proposed rule to the Secretary of Agriculture (USDA) and the FIFRA SAP for review. A draft of the proposed rule was also submitted to the appropriate Congressional Committees.
Additional information about these statutes and Executive Orders can be found at
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been documented in the docket. EPA prepared an analysis of the potential costs and benefits associated with this action (Ref. 1) which is summarized in more detail in Unit I.E. This analysis is available in the docket.
The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501
The information collection activities in this proposed rule are associated with the codification of efficacy data requirements against certain invertebrate pests. These information collection activities are activities associated with the application for a new or amended registration of a pesticide and are currently approved by OMB under OMB Control No. 2070-0060 (EPA ICR No. 0277). As such, this ICR is intended to amend that existing ICR at the final rule stage, incorporating the information collection activities attributable to this proposed rule, including a reduction in transaction costs associated with a clear codification of the product performance data requirements for certain invertebrate pests.
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 OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601
While not every element of the proposed rule would result in savings for registrants, EPA conservatively estimates that the rule would result in $1 million in annual reductions in registrant expenditures on the process of receiving label claims against public health, wood destroying, and invasive species pests, equivalent to about $17,000 in savings per data package submitted to the Agency and about $5,500 per registrant in annual savings I have therefore concluded that this action will relieve regulatory burden for all directly regulated small entities. The basis for this determination is presented in the small entity analysis prepared as part of the cost analysis for the proposed rule (Ref. 1), which is summarized in Unit I.E, and a copy is available in the docket for this rulemaking. We have therefore concluded that this action will relieve regulatory burden for all directly regulated small entities.
This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and will not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments. The proposed rule would primarily affect the private sector,
This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. At present, no Tribal governments hold, or have applied for, a pesticide registration. Thus, Executive
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated as a significant energy action by the Administrator of the Office of Information and Regulatory Affairs.
This action does not involve technical standards that would require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272.
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. The Agency notes, however, that the proposed data requirements will provide data that will be used to assure that pesticide products perform effectively if claiming effectiveness against an invertebrate pest of significant public health or economic importance, and to address both health concerns and economic consequences stemming from pesticide products that might not perform as claimed on the label, including consequences for sensitive subpopulations and minority or low-income communities.
Environmental protection, administrative practice and procedure, agricultural and non-agricultural, pesticides and pests, reporting and recordkeeping requirements.
For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 158 as follows:
7 U.S.C. 136-136y; 21 U.S.C. 346a.
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The following terms are defined for purposes of this subpart.
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(2) Any testing required under this part which involves any human subjects must comply with all applicable requirements under 40 CFR part 26. For example, 40 CFR part 26 requirements are pertinent to the part 158 testing requirement if the testing involves intentional exposure of human subjects. Protocols for such testing must be submitted to EPA for review prior to study initiation. Those protocols determined by EPA to involve intentional exposure of human subjects also require review by EPA's Human Studies Review Board (HSRB)) prior to study initiation. If you are uncertain about the applicability of the 40 CFR part 26 requirements to this 40 CFR part 158 testing requirement or uncertain about the nature of your planned testing (such as, for example, whether the testing would involve intentional exposure of human subjects or whether the testing would be an observational study), you should contact the Agency prior to initiating the testing.
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EPA has published the Harmonized Test Guidelines, which set forth the recommended approach to generate the data required in this subpart. The Product Performance Guidelines (Series 810, Group C—Invertebrate Control Agent Test Guidelines) are available on the Agency's website. These guidelines cover some, but not all, of the tests that would be used to generate data under this subpart. In instances where there is a conflict between one of the Harmonized Test Guidelines and the provisions of this subpart, this subpart will control.
The data requirements (including the performance standards associated with the data requirements) specified in this subpart as applicable to a category of products will not always be appropriate for every product in that category. Data requirements may, on a case-by-case basis, be adjusted by EPA in response to requests for novel technologies or products that have unusual physical, chemical, or biological properties or atypical use patterns which would make a particular data requirement, or data performance standard, inappropriate. Requests for such data requirement modifications must be submitted the same manner as waiver requests submitted under 40 CFR 158.45. EPA
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If an application for registration or amended registration requests a labeling claim specific to a disease vector (such as repels mosquitoes that may carry West Nile virus), then submission of testing conducted with the species specific to the disease vector claim and subject to specific performance standards is required even if the test species is not specifically required in §§ 158.1712 through 158.1786.
If an application for registration or amended registration requests a labeling claim specific to a structural or wood-destroying pest not identified in §§ 158.1782 through 158.1786, EPA may require submission of product performance data, with testing on that specific pest and subject to specific performance standards, to support those claims for effectiveness.
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(2) For the human itch or scabies mite, a performance standard of 100 percent is required.
If the pesticide product labeling makes a claim against chiggers, then testing is required using the following test species: Chigger (
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1. For products applied to dogs, testing is required on three species: Blacklegged tick (
2. For products applied to cats, testing is required on three species: Blacklegged tick (
If the pesticide product labeling makes a claim against scorpions, then testing is required using the following test species: Striped bark scorpion (
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(b) A product that bears both antimicrobial and non-antimicrobial uses or claims is subject to the data requirements for pesticides in subparts C through O, R, and U or V of this part with respect to its non-antimicrobial uses and claims, and to the requirements of this subpart with respect to its antimicrobial uses and claims.