Animal and Plant Health Inspection Service
Food and Nutrition Service
Foreign Agricultural Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Drug Enforcement Administration
Federal Contract Compliance Programs Office
Copyright Office, Library of Congress
Institute of Museum and Library Services
Federal Railroad Administration
National Highway Traffic Safety Administration
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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Food and Nutrition Service (FNS), Department of Agriculture (USDA).
Correcting amendment and extension of comment period for interim final rule.
This document contains a correction to an interim final rule published in the
The Food and Nutrition Service, USDA, invites interested persons to submit written comments on the interim final rule. Comments may be submitted in writing by one of the following methods:
•
•
•
• All written comments submitted in response to the interim final rule will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. FNS will make the written comments publicly available on the internet via
Stephanie Proska, Food and Nutrition Service, 1320 Braddock Place, 5th Floor; Alexandria, Virginia 22314, via phone at (703) 305-2437 or email at
In an interim final rule published on Friday, August 13, 2021 (86 FR 44575), amendatory instruction 8b incorrectly called for revising paragraph (b) in § 275.21. It should have instructed a revision to paragraph (b) introductory text. This led to the erroneous removal of paragraphs (b)(1) through (4). In addition, the preamble of the interim final rule discussed amending paragraph (b)(1) to update language associated with State agencies submitting “edited findings” for the FNS Form-380-1 and FNS Form 245 and to update outdated language regarding the technology used for submitting findings to FNS. However, the amendatory text for these changes were erroneously excluded from the published rule. Therefore, this document makes a correcting amendment to § 275.21(b) to restore and revise the text for paragraph (b)(1) and restore the erroneously lost regulatory text for paragraphs (b)(2) through (4). All other regulatory provisions in the August 13, 2021, interim final rule remain unchanged. This document also extends the comment period for the interim final rule until November 1, 2021 to provide the public ample time to consider these amendments.
Grant programs—social programs, Reporting and recordkeeping requirements.
Accordingly, 7 CFR part 275 is corrected by making the following correcting amendment:
7 U.S.C. 2011-2036.
(b) * * *
(1) The State agency shall utilize SNAPQCS, FNS' automated, web-based QC System, to report all required QC forms, supporting evidence, and information necessary to understand the disposition and final findings for active and negative sampled cases to FNS. Upon State agency request, FNS will consider approval of any technical changes in the review results after they have been reported to FNS.
(2) The State agency shall have at least 115 days from the end of the sample month to dispose of and report the findings of all cases selected in a sample month. FNS may grant additional time as warranted upon request by a State agency for cause shown to complete and dispose of individual cases.
(3) The State agency shall supply the FNS Regional Office with individual household case records and the pertinent information contained in the individual case records, or legible copies of that material, as well as legible hard copies of individual Forms FNS-380, FNS-380-1, and FNS-245 or other FNS-approved report forms, within 10 days of receipt of a request for such information.
(4) For each case that remains pending 115 days after the end of the sample month, the State agency shall immediately submit a report that includes an explanation of why the case has not been disposed of, documentation describing the progress of the review to date, and the date by which it will be completed. If FNS extends the time frames in paragraph
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA or we) is amending the color additive regulations to provide for the safe use of an aqueous extract of butterfly pea flower (
This rule is effective October 5, 2021. See section X for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing on the final rule by October 4, 2021.
You may submit objections and requests for a hearing as follows. Please note that late, untimely filed objections will not be considered. Electronic objections must be submitted on or before October 4, 2021. The
Submit electronic objections in the following way:
•
• If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper objections submitted to the Dockets Management Staff, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” We will review this copy, including the claimed confidential information, in our consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Stephen DiFranco, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-2710.
In a notification published in the
The petition describes butterfly pea flower extract as a dark blue water-soluble extract derived from the flower petals of
The color additive that is subject of this petition is the dark blue liquid produced through the water extraction of the dried flower petals of
The color additive is manufactured by sourcing dried flowers of
The petitioner proposed specifications for butterfly pea flower extract of less than 1 milligram per kilogram (mg/kg) (1 part per million (ppm)) of arsenic, less than 1 mg/kg (1 ppm) of cadmium, less than 1 mg/kg (1 ppm) of lead, and less than 1 mg/kg (1 ppm) of mercury, and pH 3.75 ± 0.75 in the butterfly pea flower extract. Upon consideration of the data in the petition and other information available to FDA, we amended the proposed specification for pH to not less than 3.0 and not more than 4.5 at 25 °C (Ref. 2).
The petitioner manufactures the extract starting with butterfly pea flowers grown without the use of added pesticide substances. The petition provides data to support its assertion that no detectable levels of 340 substances commonly used as pesticide are found in the finished extract. The flowers were analyzed using the California Department of Food and Agriculture multi-residue pesticide analysis (Ref. 3).
Currently, there are no residual pesticide tolerance levels for
Under section 721(b)(4) of the FD&C Act (21 U.S.C. 379e(b)(4)), a color additive may not be listed for a proposed use unless the data and information available to FDA establish that the color additive is safe for that use. Our color additive regulations at 21 CFR 70.3(i) define “safe” to mean that there is convincing evidence establishing with reasonable certainty that no harm will result from the intended use of the color additive.
To determine whether a color additive is safe under the general safety clause, the FD&C Act requires FDA to conduct a fair evaluation of the available data and consider, among other relevant factors: (1) Probable consumption of, or other relevant exposure from, the additive and of any substance formed in or on food, drugs or devices, or cosmetics because of the use of the additive; (2) cumulative effect, if any, of such additive in the diet of man or animals, taking into account chemically or pharmacologically related substance or substances in such diet; and (3) safety factors recognized by experts “as appropriate for the use of animal experimentation data” (see section 721(b)(5)(A) through (C) of the FD&C Act).
As part of our safety evaluation to establish with reasonable certainty that a color additive is not harmful under its intended conditions of use, we consider the additive's manufacturing and stability; the projected human dietary exposure to the additive and any impurities resulting from the petitioned use of the additive; the additive's toxicological data; and other relevant information (such as published literature) available to us.
The petitioner requested that butterfly pea flower extract be permitted at levels consistent with GMP and provided the maximum use levels for the color additive, representing GMP, for each proposed food use (Ref. 4). The petitioner used food consumption data from the 2011-2014 National Health and Nutrition Examination Survey (NHANES) to estimate exposure to butterfly pea flower extract from the proposed uses. Upon further clarification of the proposed uses to include all alcoholic beverages (Ref. 5), we amended the petitioner's exposure estimate to include all alcoholic beverages (Ref. 4).
Using food consumption data from the 2011-2014 NHANES, we estimated the eaters-only exposure to butterfly pea flower extract to be 198 milligrams per person per day (198 mg/p/d) at the mean and 453 mg/p/d at the 90th percentile for the U.S. population aged 2 years and older and 56 mg/p/d at the mean and 118 mg/p/d at the 90th percentile for children 2 to 5 years of age (Ref. 4).
The petition indicated that butterfly pea flower extract could contain up to 2 percent anthocyanins (by weight). Assuming a maximum of 2 percent, we estimated the dietary exposure to anthocyanins from the proposed uses to be 4 mg/p/d at the mean and 9 mg/p/d at the 90th percentile for the U.S. population 2 years of age and older (Ref. 4). Because delphinidin was stated to be the principal anthocyanin in butterfly pea flower extract, the exposure to anthocyanins represents the exposure to delphinidin from the proposed uses of butterfly pea flower extract.
Similarly, we estimated the dietary exposure to quercetin resulting from the proposed uses of butterfly pea flower extract. The petition indicates that butterfly pea flower contains approximately 3 percent (by weight) of flavonols, which are comprised of various quercetin and kaempferol derivatives. We conservatively presumed that all the flavonols present in butterfly pea flower extract were present as quercetin (see below) and estimated quercetin exposure to be 6 mg/p/d at the mean and 14 mg/p/d at the 90th percentile for the U.S. population 2 years of age and older (Ref. 4).
To establish that butterfly pea flower extract is safe for use as a color additive for the proposed uses, the petitioner used a weight-of-evidence approach based on: (1) Toxicological information about the extract's major coloring component, delphinidin, including a 2013 European Food Safety Authority (EFSA) review of anthocyanins (Ref. 6); (2) a 28-day subacute range finding feeding study in rats; (3) a 90-day feeding study in rats; (4) a bacterial reverse mutation test and an in vitro micronucleous test addressing possible mutagenicity and genotoxicity of butterfly pea flower extract; (5) an in vivo somatic mutation and recombination test conducted on the unprocessed butterfly pea flower parts; (6) in vivo genotoxicity data from published literature on anthothyanins (including delphinidin) and flavonol components (Refs. 7 and 8); (7) clinical human studies of anthocyanins (including delphinidin) and spray-dried butterfly pea flower extract; (8) clinical studies of quercetin and kaempferol, the primary flavonols present; (9) a proteomic assessment of butterfly pea flower extract aimed at establishing that cyclotides found in the tissues of
We reviewed the oral toxicity studies and agree with the petitioner's conclusions that the no observed adverse effect level in the 90-day study is the highest dose tested (3,500 mg/kg/d of butterfly pea flower extract), which is nearly 500-fold of the 90th percentile daily exposure for U.S. population 2 years and older (Ref. 9). While chronic studies were not provided by the petitioner nor available from the published literature, we believe that chronic toxicity from the intended use of butterfly pea flower extract is unlikely because: (1) We did not identify any potential toxicity effects associated with the use of either butterfly pea flower extract or its anthocyanins and flavonol components from literature that warrant further chronic toxicity studies (Refs. 9 and 10); (2) the systemic oral absorption of anthocyanins and flavonols is generally low (Ref. 9); (3) there are available human clinical studies indicating that the main anthocyanins and flavonol components of butterfly pea flower extract are well tolerated in humans (Ref. 9); and (4) anthocyanins and flavonols are naturally present and widely distributed in many plants used as food, and the exposures to anthocyanins and flavonols from the use of butterfly pea flower extract were estimated to be comparable or lower than the exposure from a typical diet (Ref. 11).
We also did not find any scientific data suggesting reproductive or developmental toxicity; moreover, the genotoxicity studies demonstrate that butterfly pea flower extract is non-mutagenic and non-genotoxic (Ref. 9).
Based on the totality of evidence and a weight of evidence analysis that considered the lack of overall genotoxicity, mode of action, and the level of exposure, we conclude that butterfly pea flower extract is not likely to pose a carcinogenic risk to humans at its intended use levels (Refs. 9 and 10).
Among the available relevant clinical studies, one study of butterfly pea flower extract indicated no acute adverse effect at doses up to 2 grams per person. Other clinical studies, using either anthocyanins or flavonols, suggested tolerance at doses much higher than the exposure level from the consumption of butterfly pea flower extract under the intended condition of use (Ref. 9).
The petitioner provided analytical evidence demonstrating that the cyclotides identified in butterfly pea flower petals were not detected in the butterfly pea flower extract. Therefore, there is no toxicity concern for cyclotides from the consumption of the extract (Ref. 9).
Although there is no evidence in the scientific literature specifically suggesting that either
Based on the data and information in the petition and other available relevant information, we conclude that the petitioned use of butterfly pea flower extract as a color additive in: Alcoholic beverages, sport and energy drinks, flavored or carbonated water, fruit drinks (including smoothies and grain drinks), carbonated soft drinks (fruit-flavored or juice, ginger ale, and root beer), fruit and vegetable juice, nutritional beverages, chewing gum, teas, coated nuts, liquid coffee creamers (dairy and non-dairy), ice cream and frozen dairy desserts, hard candy, dairy and non-dairy drinks, fruit preparations in yogurts, and soft candy is safe, provided the amount of butterfly pea flower extract does not exceed levels consistent with good manufacturing practice.
We further conclude that this color additive will achieve its intended technical effect and is suitable for the petitioned use. Therefore, we are amending the color additive regulations in part 73 to provide for the safe use of this color additive as set forth in this document. In addition, based on the factors in 21 CFR 71.20(b), we conclude that batch certification of butterfly pea flower extract is not necessary to protect the public health.
In accordance with § 71.15 (21 CFR 71.15), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see
As stated in the November 13, 2018,
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
Our review of this petition was limited to section 721 of the FD&C Act. This final rule is not a statement regarding compliance with other sections of the FD&C Act. For example, section 301(ll) of the FD&C Act (21 U.S.C. 331(ll)) prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the exemptions in section 301(ll)(1) to (4) of the FD&C Act applies. In our review of this petition, we did not consider whether section 301(ll) of the FD&C Act or any of its exemptions apply to food containing this color additive. Accordingly, this final rule should not be construed to be a statement that a food containing this color additive, if introduced or delivered for introduction into interstate commerce, would not violate section 301(ll) of the FD&C Act. Furthermore, this language is included in all color additive final rules that pertain to food and therefore should not be construed to be a statement of the likelihood that section 301(ll) of the FD&C Act applies.
This rule is effective as shown in the
Any objections received in response to the regulation may be seen in the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at
The following references marked with an asterisk (*) are on display at the Dockets Management Staff (see
1. *Wu, X., G. R. Beecher, J. M. Holden, et al., “Concentrations of Anthocyanins in Common Foods in the United States and Estimation of Normal Consumption.”
2. *Memorandum from B. Petigara Harp, Color Technology Branch, Division of Color Certification and Technology, Office of Cosmetics and Colors, Center for Food Safety and Applied Nutrition (CFSAN), FDA, to S. DiFranco, Division of Food Ingredients (DFI), Office of Food Additive Safety (OFAS), CFSAN, FDA, June 4, 2021.
3. Lee, S. M., M. L. Papathakis, H-M. C. Feng, et al., “Multipesticide Residue Method for Fruits and Vegetables: California Department of Food and Agriculture.”
4. *Memorandum from D. Doell, Chemistry Review Team, DFI, OFAS, CFSAN, FDA, to S. DiFranco, DFI, OFAS, CFSAN, FDA, June 7, 2021.
5. *Memorandum of Teleconference from S. DiFranco, Regulatory Review Team, DFI, OFAS, CFSAN, FDA, to the file, April 7, 2020.
6. *EFSA, “Scientific Opinion on the Re-evaluation of Anthocyanins (E163) as a Food Additive.”
7. *NTP, “Toxicology and Carcinogenesis Studies of Quercetin (CAS No. 117-39-5) in F344 Rats (Feed Studies).” NTP Technical Report Series, No. 409, 1992.
8. Hard, G. C., J. C. Seeley, L. J. Betz, et al., “Re-evaluation of the Kidney Tumors and Renal Histopathology Occurring in a 2-Year Rat Carcinogenicity Bioassay of Quercetin.”
9. *Memorandum from Y. Zang, Toxicology Review Team, DFI, OFAS, CFSAN, FDA, to S. DiFranco, DFI, OFAS, CFSAN, FDA, June 9, 2021.
10. *Memorandum from S. Mog and S. Francke to Y. Zang. Pathology Consultation Review on Renal Neoplasms in Male F344 rats from National Toxicology Program Technical Report (NTP TR 409) on Quercetin in F344/N Rats (feed studies), October 31, 2019.
11. *USDA. “Table 1a. Flavonoids from Food and Beverages: Mean Intake (standard error) per Individuals, by Gender and Age, in the United States, What We Eat in America.” NHANES 2007-2010, 2016.
12. Goodman R. E., M. Ebisawa, F. Ferreira, et al., “AllergenOnline: A Peer-reviewed, Curated Allergen Database to Assess Novel Food Proteins for Potential Cross-reactivity.”
Color additives, Cosmetics, Drugs, Foods, Medical devices.
Therefore, 21 CFR part 73 is amended as follows:
21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e.
(a)
(2) Color additive mixtures for food use made with butterfly pea flower extract may contain only those diluents that are suitable and are listed in this subpart as safe for use in color additive mixtures for coloring foods.
(b)
(1) pH, not less than 3.0 and not more than 4.5 at 25 °C.
(2) Lead, not more than 1 milligram per kilogram (mg/kg) (1 part per million (ppm)).
(3) Arsenic, not more than 1 mg/kg (1 ppm).
(4) Mercury, not more than 1 mg/kg (1 ppm).
(5) Cadmium, not more than 1 mg/kg (1 ppm).
(c)
(d)
(e)
Coast Guard, DHS.
Final rule.
The Coast Guard is amending its special local regulations for recurring marine parades, regattas, and other events in Southern California Annual Marine Events for the San Diego Captain of the Port Zone. This final rule will add one new recurring special local regulation. This action is necessary to provide for the safety of life on the navigable waters during the event. This final rule will restrict vessel traffic in the designated areas during the events unless authorized by the Captain of the Port San Diego or a designated representative.
This rule is effective September 2, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander John Santorum, Waterways Management, U.S. Coast Guard; telephone 619-278-7656, email
On April 8, 2021, The Honor Foundation notified the Coast Guard that it will be hosting the Honor Foundation Swim for Special Operations Forces annually on a Saturday during the month of September. The regulated area would cover all navigable waters of the San Diego Bay, beginning at Glorietta Bay, continuing to Tidelands Park before proceeding north along the Coronado shoreline, crossing the federal navigable channel at Bayview Park, and finishing at the USS MIDWAY Museum.
In response, on July 2, 2021 the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulations; Swim for Special Operations Forces; San Diego Bay, San Diego, CA (86 FR 35240). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this annual marine event. During the comment period that ended August 2, 2021 we received one comment.
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041 (previously 33 U.S.C. 1231). The Captain of the Port San Diego (COTP) has determined that potential hazards associated with the Honor Foundation Swim for Special Operations Forces annually on a Saturday during the month of September will present a safety of life concern on navigatable waters. The purpose of this rule is to ensure safety of life on the navigable waters in the safety zone before, during, and after the scheduled event. For the reasons stated above, we are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
As noted above, we received one comment on the NPRM published July 2, 2021. The commentor proposed a method for intercepting and impounding vessels entering the safety zone. The Coast Guard was not proposing to spcecify how on scene representatives must handle situations where vessels enter the safety zone in this rulemaking. The purpose of this rulemaking is to establish the reoccurring annual safety zone and its location. The Coast Guard has existing regulations and policies that cover enforcement and this rulemaking does not intend to deviate from those practices. Accordingly, no changes to the regulatory text were made in response to this comment.
There is one nonsubstantive change in the regulatory text from the proposed rule to remove a typographical error, “SS”, in the event type.
This rule establishes a safety zone annually on a Saturday in September. The safety zone will cover all waters of San Diego Bay, from surface to bottom, beginning at Glorietta Bay, continuing to Tidelands Park, proceeding north along the Coronado shoreline, crossing the federal navigable channel at Bayview Park, and finishing at the USS MIDWAY Museum. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration of the special local regulation. Vessel traffic would be able to safely transit around this special local regulation, which would impact a small-designated area of the San Diego Bay. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the areas, and the rule would allow vessels to seek permission to enter the areas.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a regulated area that would prohibit persons and vessels from transiting the regulated area during the swim event. It is categorically excluded from further review under paragraph L61 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
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation of certain navigable waters of Huntington Bay, Long Island, NY, for the Lighthouse Musicfest marine event. This action is necessary to provide the safety of life on these navigable waters during the event scheduled for Saturday, September 4, 2021. This rule will allow the Coast Guard to prohibit vessel traffic in the vicinity of the event and establishes mooring areas and a speed restriction in the designated zone.
This rule is effective from 9:30 a.m. through 7:30 p.m. on Saturday, September 4, 2021 with a rain date effective from 9:30 a.m. through 7:30 p.m. on Sunday, September 5, 2021. The rule will only be subject to enforcement from 9:30 a.m. through 7:30 p.m. on September 4, 2021, unless the event is delayed because of weather conditions in which case it may be subject to enforcement those same hours on September 5, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email MST1 Chris Gibson, Waterways Management Division, U.S. Coast Guard; telephone 203-468-4565, email
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 it is impracticable and contrary to the public interest. The event sponsor was late in submitting the marine event application. This late submission did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the effective date. It would be impracticable and contrary to the public interest to delay promulgating this rule, as it is necessary to protect the safety of waterway users. Further, the expeditious implementation of this rule is in the public interest because it will help ensure the safety of spectators and those involved in the event.
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 Captain of the Port Long Island Sound (COTP) has determined that extra and unusual hazards exists for persons or vessels operating within the waters of Huntington Bay, Long Island, NY with the Lighthouse Musicfest marine event. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the special local regulated area during the Lighthouse Musicfest marine event.
The COTP is establishing two mooring areas and one no wake zone for this temporary special local regulation to restrict vessel traffic for the safety of persons and property. The special local regulation will cover certain navigable waters of Huntington Bay, Long Island, NY from 9:30 a.m. through 7:30 p.m. on Saturday, September 4, 2021 with a rain date effective from 9:30 a.m. through 7:30 p.m. on Sunday, September 5, 2021. The rule only be subject to enforcement from 9:30 a.m. through 7:30 p.m. on September 4, 2021, unless the event is delayed because of weather conditions in which case it may be subject to enforcement those same hours on September 5, 2021. The temporary special local regulation will cover speciifc waters of Huntington Bay, NY.
The Lloyd Harbor mooring area, will start at the Huntington Lighthouse, NY, in position at 40°54′38″ N, 073°25′52″ W; then southwest to a point in position at 40°54′28.47″ N, 073°26′17.59″ W; then west along the coast of West Neck to a point in position at 40°54′46.32″ N, 073°26′56.25″ W; then north to a point in position at 40°54′56.24″ N, 073°26′56.24″ W; then east along Lloyd Neck to a point in position at 40°54′49.78″ N, 073°26′8.51″ W; then north-northeast along the coast of Lloyd Neck to a point in position at 40°55′5.58″ N, 073°25′50.22″ W; and then to point of origin at Huntington Lighthouse, NY in position at 40°54′38″ N, 073°25′52″ W (NAD 83).
The East of Channel mooring area, will start at the point in position at 40°54′23.21″ N, 073°25′35.55″ W; then west along the coast of Wincoma, NY to a point in position at 40°54′23″ N, 073°25′55.7″ W; then northeast to a point in position at 40°54′37.7″ N, 073°25′42.4″ W; then southeast to a point in position at 40°54′34.4″ N, 073°25′29.4″ W; and then to point of origin in position at 40°54′23.21″ N, 073°25′35.55″ W (NAD 83).
The Slow-No Wake Zone will start at the point in position at 40°55′38.77″ N, 073°25′45.96″ W; then southeast to a point in position 40°54′51.44″ N, 073°24′17.76″ W; then south-southwest to a point in position at 40°54′17.65″ N, 073°24′23.71″ W; then west along the coast of the Village of Huntington Bay and Wincoma, NY to a point in position at 40°54′23″ N, 073°25′55.7″ W; then west-northwest to a point in position at 40°54′27.12″ N, 073°26′26.85″ W; then north-northwest to a point in position at 40°54′49.78″ N, 073°26′8.51″ W; and then north along the coast of Lloyd Neck to the point of origin at position at 40°55′38.77″ N, 073°25′45.96″ W (NAD 83). People are advised to visit
The regulated area is intended to protect personnel, vessels, and the marine environment in these navigable waters for the duration of the Lighthouse Musicfest marine event. No vessel or person will be permitted to anchor, moor, or loiter outside of the established mooring areas. All persons and vessels within the regulated area are subject to a “Slow-No Wake” speed limit. Vessels within the SLR may not produce more than a minimum wake and may not attain speeds greater than five knots unless a higher minimum speed is necessary to maintain steerageway when traveling with a strong current. In no case may the wake produced by a vessel within the regulation be such that it creates a danger of injury to persons or damage to vessels or structures of any kind unless specified by the COTP or their designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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, location, and duration and time-of-day of the special local regulation. This rule involves a special local regulation lasting approximately 10 hours and impacting waters of Huntington Bay, Long Island, NY. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the SLR and the rule would allow vessels to seek permission to transit the regulated area. Vessel traffic would also be able to request permission from the COTP or a designated representative to enter the regulated area.
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 regulated area 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
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a temporary special local regulation lasting from 9:30 a.m. through 7:30 p.m. on September 4, 2021 that will restrict movement in Huntington Bay, Long Island, NY for the duration of the marine event. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(1)
(2)
(3)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the Designated Representative via VHF-FM marine channel 16 or by contacting the Coast Guard Sector Long Island Sound Command Center at (203) 468-4401. Those persons in the regulated area must comply with all lawful orders or directions given to them by the COTP or the Designated Representative.
(d)
Coast Guard, DHS.
Temporary interim rule with request for comments.
The Coast Guard is establishing a temporary safety zone for all navigable waters within a 25-yard radius of any foundation, support, stanchion, pier or abutment of the Seagull Bridge located on the Quinnipiac River, Hamden, CT. The safety zone is needed to protect personnel and property from potential hazards created by falling debris. Vessels or persons are prohibited from entering the zone unless specifically authorized by the Captain of the Port Long Island Sound or a designated representative.
This temporary interim rule is effective without actual notice from September 2, 2021 through September 30, 2021. For the purposes of enforcement, actual notice will be used from April 29, 2021, until September 2, 2021.
Comments and related material must be received by the Coast Guard on or before October 4, 2021.
You may submit comments identified by docket number USCG-2021-0219 using the Federal eRulemaking Portal at
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary interim rule, call or email Lieutenant Jennifer L. Sheehy, Waterways Management Chief, U.S. Coast Guard; telephone 203-468-4432, email
The Coast Guard views public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. Your comment can help us amend this regulation so that it provides a better solution to the problem we seek to address. We may issue a temporary final rule or other appropriate document in response to your comments.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. Comments we post to
We do not plan to hold a public meeting but we will consider doing so if we determine from public comments that a meeting would be helpful. We would issue a separate
This rulemaking establishes a temporary safety zone for the waters around the Seagull Bridge, Quinnipiac River, Hamden, CT. On April 1, 2021, the Coast Guard received notice of debris falling from the Seagull Bridge and that the bridge is displaying signs of failure; thus creating a hazardous situation. As a temporary interim rule, this will allow the Coast Guard to expeditiously establish a safety zone, while also providing time to complete a structural analysis of the Seagull Bridge.
If we determine that changes to the temporary interim rule are necessary, the Coast Guard will publish a temporary final rule or other appropriate document.
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 temporary interim rule because doing so would be impracticable and contrary to the public interest. Publishing an NPRM and delaying the effective date of this rule to await public comment is contrary to the safety zone's intended objective, since immediate action is needed to protect persons and property from the potential falling debris from the Seagull Bridge.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary interim rule effective less than 30 days after publication in the
We are soliciting comments on this rulemaking. If the Coast Guard determines that changes to the temporary interim rule are necessary, we will publish a temporary final rule or other appropriate document.
The Coast Guard is issuing this temporary interim rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Long Island Sound (COTP) has determined that potential hazards associated with falling debris from the bridge structure would be a safety concern for anyone within a 25-yard radius of the Seagull Bridge. This temporary interim rule is needed to protect personnel and property in the navigable waters around the safety zone from the potential safety hazards associated with the Seagull Bridge.
This temporary interim rule establishes a temporary safety zone from April 29, 2021 through September 30, 2021, or until the safety zone is rescinded. The safety zone will cover all navigable waters 25-yards around the Seagull Bridge located on the Quinnipiac River, Hamden, CT, at 41°20′09.8″ N, 072°53′19.7″ W. The duration of the safety zone is intended to protect personnel and property within these navigable waters. All vessels or persons will be prohibited to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this temporary interim 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 temporary interim rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this temporary interim rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration of the safety zone. This temporary safety zone will temporarily restrict navigation in the 25-yards around the Seagull Bridge from April 29, 2021 through September 30, 2021. This temporary interim rule allows persons or vessels to seek permission to enter the safety zone. Additionally, the Coast Guard will notify the public of the enforcement of this temporary interim rule via appropriate means, such as via Local Notice to Mariners and Broadcast Notice to Mariners to increase public awareness of this safety zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this temporary interim 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 temporary safety zone may be small entities, for the reasons stated in section VI.A above, this temporary interim 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 temporary interim rule. If the temporary interim 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 temporary interim rule or any policy or action of the Coast Guard.
This temporary interim rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A temporary interim 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 temporary interim 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 temporary interim rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this temporary interim rule will not result in such an expenditure, we do discuss the effects of this temporary interim rule elsewhere in this preamble.
We have analyzed this temporary interim rule under Department of Homeland Security Directive 023-01,
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
Accordingly, 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. 00170.1, Revision No. 01.2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP Sector Long Island Sound at 203-468-4401 (Sector Long Island Sound Command Center) or the designated representative via VHF channel 16 to obtain permission to do so. 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)
Coast Guard, DHS.
Interim final rule; request for comments.
The Coast Guard is establishing temporary safety zones on the waters of the Delaware River in portions of Marcus Hook Range and Anchorage 7 off Marcus Hook Range. The safety zones will temporarily restrict vessel traffic from transiting or anchoring in portions of the Delaware River while maintenance dredging is being conducted within the Delaware River. The safety zones are needed to protect personnel, vessels and the marine environment from hazards created by dredging operations. Entry of vessels or persons into these zones is prohibited unless specifically authorized by the COTP or his designated representatives.
This interim rule is effective without actual notice from September 2, 2021 through November 2, 2021. For the purposes of enforcement, actual notice will be used from August 31, 2021, through September 2, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
You may submit comments identified by docket number USCG-2021-0700 using the Federal Decision Making Portal at
If you have questions on this rule, call or email Petty Officer Edmund Ofalt, Waterways Management Branch, U.S. Coast Guard Sector Delaware Bay; telephone (215) 271-4889, email
The Coast Guard is issuing this interim 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 it is impracticable and contrary to the public interest. There is insufficient time to allow for a reasonable comment period prior to the start date for dredging operations. The rule must be in force by August 31, 2021, to serve its purpose of ensuring the safety of the public from hazards associated with dredging operations such as submerged and floating pipeline, booster pumps, head
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
Due to the length of time this temporary rule will be in effect, we are soliciting comments on this rulemaking. If the Coast Guard determines that changes to the rule are necessary we will publish a subsequent rulemaking document 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 has determined that there are potential hazards associated with dredging operations. The purpose of this rulemaking is to ensure the safety of personnel, vessels, and the marine environment within a 250-yard radius of dredging operations and all associated pipeline and equipment.
This rule establishes safety zones from August 31, 2021, through November 2, 2021. The safety zones are necessary to facilitate annual maintenance dredging of the Delaware River in the vicinity of Marcus Hook Range and Anchorage 7 off Marcus Hook Range (as described in 33 CFR 110.157(a)(8)). Dredging will most likely be conducted with the dredge ESSEX, though other dredges may be used, along with associated dredge pipeline and boosters. The pipeline consists of a combination of floating hoses immediately behind the dredge and submerged pipeline leading to upland disposal areas. Due to the hazards related to dredging operations, the associated pipeline and the location of submerged pipeline, safety zones are being established in the following areas:
(1) Safety zone one includes all navigable waters within 250 yards of the dredge displaying lights and shapes for vessels restricted in ability to maneuver as described in 33 CFR 83.27, and all related dredge equipment when the dredge is operating in Marcus Hook Range, and Anchorage 7. This safety zone is being established for the duration of the maintenance project. Vessels requesting to transit the safety zone must contact the dredge on VHF channel 13 or 16 at least 1 hour prior to arrival to arrange safe passage. At least one side of the main navigational channel will be kept clear for safe passage of vessels in the vicinity of the safety zone. At no time will the entire main navigational channel be closed to vessel traffic. Vessels should avoid meeting in these areas where one side of the main navigational channel is open and proceed per this rule and the Rules of the Road (33 CFR subchapter E).
(2) Safety zone two includes all the waters of Anchorage 7 off Marcus Hook Range, as described in 33 CFR 110.157(a)(8). Vessels wishing to anchor in Anchorage 7 off Marcus Hook Range while this rule is in effect must obtain permission from the COTP at least 24 hours in advance by calling (215) 271-4807. Vessels requesting permission to anchor within Anchorage 7 off Marcus Hook must be at least 650 feet in overall length. The COTP will permit, at minimum, only one vessel to anchor at a time on a “first-come, first-served” basis. Vessels will only be allowed to anchor for a 12 hour period. Vessels that require an examination by the Public Health Service, Customs, or Immigration authorities will be directed to an anchorage by the COTP for the required inspection. Vessels are encouraged to use Anchorage 9 near the entrance to Mantua Creek, Anchorage 10 at Naval Base, Philadelphia, and Anchorage 6 off Deepwater Point Range as alternative anchorages.
Preference is being given to vessels at least 650 feet in length in the Anchorage 7 while this rule is in effect because vessels of this size are limited in their ability to utilize other anchorages due to draft. The depth of Anchorage 7 provides an acceptable depth for large vessels to bunker and stage for facility arrival. Smaller vessels maintain a host of other options to include, but are not limited to Anchorage 9 and 10 as recommended above.
Entry into, transiting, or anchoring within safety zone one is prohibited unless vessels obtain permission from the COTP or make satisfactory passing arrangements with the operating dredge per this rule and the Rules of the Road (33 CFR subchapter E). The COTP may issue updates regarding the vessel and equipment being utilized for these dredging operations via Marine Safety Information Bulletin and Broadcast Notice to Mariners.
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, location, duration, and traffic management of the safety zones. The safety zones will be enforced in an area and in a manner that does not conflict with transiting commercial and recreational traffic. At least one side of the main navigational channel will be open for vessels to transit at all times. Moreover, the Coast Guard will work in coordination with the pilots to ensure vessel traffic can transit the area safely.
Although this regulation will restrict access to regulated areas, the effect of this rule will not be significant because there are a number of alternate anchorages available for vessels to anchor. Furthermore, vessels may transit through the safety zones with the permission of the COTP or make satisfactory passing arrangements with the dredge ESSEX, or other dredge(s) that may be used in accordance with this rule and the Rules of the Road (33 CFR subchapter E). The Coast Guard will notify the maritime public about the safety zones through maritime advisories, allowing mariners to alter their plans accordingly.
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 particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zones to protect waterway users that would prohibit entry within 250 yards of dredging operations and will close only one side of the main navigation channel. Vessels can request permission to enter the channel. It is categorically excluded from further review under paragraph L[60a] 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
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
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. 00170.1, Revision No. 01.2.
(a)
(1) Safety zone one includes all waters within 250 yards of the dredge displaying lights and shapes for vessels restricted in ability to maneuver as described in 33 CFR 83.27, as well as all
(2) Safety zone two includes all the waters of Anchorage 7 off Marcus Hook Range, as described in 33 CFR 110.157(a)(8) and depicted on U. S. Nautical Chart 12312.
(b)
(c)
(2) Vessels desiring to anchor in safety zone two, Anchorage 7 off Marcus Hook Range, must obtain permission from the COTP at least 24 hours in advance by calling (215) 271-4807. The COTP will permit, at minimum, one vessel at a time to anchor on a “first-come, first-served” basis. Vessels will only be allowed to anchor for a 12 hour period. Vessels that require an examination by the Public Health Service, Customs, or Immigration authorities will be directed to an anchorage for the required inspection by the COTP.
(3) Vessels desiring to anchor in safety zone two, Anchorage 7 off Marcus Hook Range, must be at least 650 feet in length overall.
(4) This section applies to all vessels except those engaged in the following operations: enforcement of laws, service of aids to navigation, and emergency response.
(d)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters of the Kanawha River from mile marker 58.1 to mile marker 59.1. This temporary safety zone is necessary to protect persons, vessels, and the marine environment from potential hazards associated with the Live on the Levee fireworks display. Entry into this safety zone is prohibited unless specifically authorized by the Captain of the Port Sector Ohio Valley or a designated representative.
This rule is effective from 9:30 p.m. through 10 p.m. on September 3, 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 Petty Officer Jonathan Braddy, Marine Safety Unit Huntington, U. S. Coast Guard; telephone 304-733-0198, email
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 it is impracticable. It is impracticable to publish an NPRM because we must establish this safety zone by September 03, 2021, and we lack sufficient time to provide reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety.
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. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with a fireworks display taking place over this section of the Kanawha River will be a safety concern for anyone within a one-mile stretch of the waterway. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the scheduled fireworks display.
This rule establishes a temporary safety zone for the Live on the Levee fireworks display from 9:30 p.m. until 10 p.m. on September 3, 2021. The safety zone covers all navigable waters of the Kanawha River from mile marker (MM) 58.1 to MM 59.1, in Charleston, WV. The duration of this safety zone is intended to protect persons, vessels, and the marine environment in these
No vessel or person is permitted to enter this safety zone without obtaining permission from the COTP or a designated representative. A designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port Sector Ohio Valley. To seek permission to enter, contact the COTP or designated representative via radio on channel 16 or by telephone at 1-800-253-7465. If permission is granted, all persons and vessels shall transit at their slowest safe speed and comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of any changes in the date and times of enforcement through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Safety Marine Information Broadcasts (SMIBs), as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the temporary safety zone. This rule involves a temporary safety zone lasting thirty minutes that will prohibit entry on a one-mile stretch of the Kanawha River on one evening. Moreover, the Coast Guard will issue a BNMs via VHF-FM marine channel 16 about the safety zone, and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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 temporary 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 contact 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, 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 thirty minutes that will prohibit entry on a one-mile stretch of the Kanawha River on one evening. 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. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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. 00170.1., Revision No. 01.2.
(a)
(b)
(c)
(d)
(2) To seek permission to enter, contact the COTP or the COTP's representative by via radio on channel 16 or by telephone at 1-800-253-7465. 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)
In rule document 2021-17388, appearing on pages 46123-46133, in the issue of Wednesday, August 18, 2021, make the following corrections to eliminate a duplicate entry for section 721.11301:
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Pennsylvania. The revision pertains to the Commonwealth's plan, submitted by the Pennsylvania Department of Environmental Protection (PADEP), for maintaining the 1997 8-hour ozone national ambient air quality standard (NAAQS) (referred to as the “1997 ozone NAAQS”) in the Greene County, Pennsylvania area (Greene County Area). EPA is approving these revisions to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on October 4, 2021.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2021-0358. All documents in the docket are listed on the
Adam Yarina, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-2108. Mr. Yarina can also be reached via electronic mail at
On July 13, 2021, (86 FR 36673), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of Pennsylvania's plan for maintaining the 1997 ozone NAAQS in the Greene County Area through April 20, 2029, in accordance with CAA section 175A. The formal SIP revision was submitted by PADEP on February 25, 2020.
On March 19, 2009 (74 FR 11671, effective April 20, 2009), EPA approved a redesignation request and maintenance plan from PADEP for the Greene County Area. In accordance with CAA section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years, and in
As discussed in the July 13, 2021 NPRM, EPA allows the submittal of a limited maintenance plan (LMP) to meet the statutory requirement that the area will maintain for the statutory period. Qualifying areas may meet the maintenance demonstration by showing that the area's design value
Other specific requirements of PADEP's February 25, 2020 submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.
EPA is approving PADEP's second maintenance plan for the Greene County Area for the 1997 ozone NAAQS as a revision to the Pennsylvania SIP.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices if they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 1, 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, approving PADEP's second maintenance plan for the Greene County Area for the 1997 ozone NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Imperial County Air Pollution Control District (ICAPCD or “District”) portion of the California State Implementation Plan (SIP). The revision concerns emissions of volatile organic compounds (VOCs) from gasoline transfers at bulk gasoline terminals storage. We are approving a local rule to regulate these emission sources under the Clean Air Act (CAA or the Act).
This rule is effective on October 4, 2021.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2021-0176. All documents in the docket are listed on the
Donnique Sherman, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4129 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
On May 10, 2021 (86 FR 24835), the EPA proposed to approve the following rule into the California SIP.
We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.
The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.
No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP. The November 3, 2020, version of Rule 415 will replace the previously approved version of this rule in the SIP.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the ICAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents 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 criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and 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 November 1, 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, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:
42 U.S.C. 7401
(c) * * *
(332) * * *
(i) * * *
(A) * * *
(
(562) Amended regulations for the following APCDs were submitted on February 19, 2021 by the Governor's designee as an attachment to a letter dated February 18, 2021.
(i)
(
(B) [Reserved]
(ii) [Reserved]
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving revisions to the ozone attainment portions of the State Implementation Plan (SIP) submitted by the states of New Jersey and New York to meet the Clean Air Act (CAA) requirements for attaining the 1997 8-hour ozone national ambient air quality standard (NAAQS). Specifically, the EPA is approving New Jersey's and New York's demonstrations of attainment of the 1997 8-hour ozone NAAQS for their portions of the New York-Northern New Jersey-Long Island NY-NJ-CT Moderate 1997 8-hour ozone nonattainment area (hereafter, the NY-NJ-CT area or the NY-NJ-CT nonattainment area). This action is being taken under the Clean Air Act.
This final rule is effective on October 4, 2021.
The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2020-0613. All documents in the docket are listed on the
Omar Hammad, Air Planning Section, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3347.
The Supplementary Information section is arranged as follows:
On June 21, 2021 (86 FR 32363) and June 24, 2021 (86 FR 33154)
As discussed in the proposed rule at 86 FR 32363, June 21, 2021, and at 86 FR 33154, June 24, 2021, the EPA reviewed the photochemical grid modeling used by New Jersey and New York in their SIP submittal to demonstrate attainment of the 1997 ozone NAAQS and determined that the modeling meets the EPA's guidelines and is acceptable to the EPA. Air quality monitoring data for 2014-2016 and certified data for 2017, 2018 and 2019 in the NY-NJ-CT area and the subsequent design values for 2015-2017, 2016-2018 and 2017-2019 also demonstrate attainment of the 1997 8-hour ozone standard throughout the NY-NJ-CT area. The purpose of the attainment demonstration is to demonstrate how, through enforceable and approvable emission reductions, an area will meet the standard by the attainment date. All necessary ozone control measures have already been adopted, submitted, approved and implemented. Also discussed in further detail in the proposed rulemaking and based on: (1) The States following the EPA's modeling guidance, (2) the modeled attainment of 1997 standard, (3) the air quality monitoring data for 2014-2016, 2015-2017, 2016-2018, 2017-2019, and (4) the implemented SIP-approved control measures, the EPA is approving the New Jersey and New York attainment demonstrations for the 1997 ozone NAAQS for their portions of the NY-NJ-CT area.
Other specific requirements of an attainment demonstration and the rationale for the EPA's proposed action is explained in more detail in the NPRM. The EPA did not receive any comments during the comment period.
The EPA is approving the attainment demonstration for the New Jersey and New York portions of the NY-NJ-CT nonattainment area for the 1997 ozone NAAQS. This rulemaking addresses the EPA's obligations to act on New Jersey's January 2, 2018 and New York's November 13, 2017 SIP revision for the 1997 ozone NAAQS.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 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, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rulemaking action, pertaining to New York's and New Jersey's 1997 8-hour ozone attainment demonstration submissions is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and 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 November 1, 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, Incorporation by reference, Nitrogen Dioxide, Intergovernmental Relations, Ozone, Reporting and recordkeeping requirements, Particulate matter, Volatile Organic Compounds.
42 U.S.C. 7401
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(e) * * *
(r) The 1997 8-hour ozone attainment demonstration for the New Jersey portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area included in New Jersey's January 2, 2018 State Implementation Plan revision is approved and satisfies the requirements of section 182 of the Clean Air Act.
(e) * * *
(t) The 1997 8-hour ozone attainment demonstration for the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area included in New York's November 13, 2017 State Implementation Plan revision is approved and satisfies the
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving elements of a State Implementation Plan (SIP) submitted by the State of New York to demonstrate that the State meets the requirements of certain sections of the Clean Air Act (CAA) for the 2015 ozone National Ambient Air Standards (NAAQS).
This final rule is effective on October 4, 2021.
The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2020-0301. All documents in the docket are listed on the
Edward J. Linky, Environmental Protection Agency, 290 Broadway, New York, New York 10007-1866, at (212) 637-3764, or by email at
The
Section 110(a) of the CAA requires each state adopt and submit for approval into the SIP a plan for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA. On July 1, 2021 (86 FR 35034), the EPA published a Notice of Proposed Rulemaking that proposed to approve elements of the SIP submission from the State of New York, submitted to EPA on September 25, 2018 and July 10, 2019, as demonstrating that the State had the necessary authority and resources to implement the infrastructure requirements of the 2015 ozone NAAQS. As explained in the proposal, the EPA is not addressing section 110(a)(2)(I) in this action, as Part D plans for nonattainment areas are subject to a different submission schedule than infrastructure SIPs, and the EPA will take action on Part D plans when submitted through a separate process. As also explained in the proposal, the EPA is not addressing the visibility portion of 110(a)(2)(J), as there are no new visibility protection obligations under the 2015 Ozone NAAQS. Additionally, as explained in the proposal, the EPA will act on section 110(a)(2)(D)(i)(I) (commonly referred to as prongs 1 and 2) in a separate notice at a later date.
EPA did not receive any comments on the proposed approval of New York's 2015 Infrastructure Plan revisions published July 1, 2021 (86 FR 35034).
The EPA is approving New York's September 25, 2018 and July 10, 2019, SIP revisions as meeting the requirements of section 110(a)(1) and (2) infrastructure requirements of the CAA for the 2015 ozone NAAQS, with the exception of CAA section 110(a)(2)(D)(i)(I) (prongs 1 and 2).
Under the CAA, 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, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 1, 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, Incorporation by reference, Nitrogen Dioxide, Intergovernmental Relations, Ozone, Reporting and recordkeeping requirements, Volatile Organic Compounds.
42 U.S.C. 7401
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
Infrastructure Requirements for the 2015 ozone NAAQS” and “Section 110(a)(2)(G)
Infrastructure Requirements for the 2015 ozone NAAQS” at the end of the table to read as follows:
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State of Kansas's Underground Storage Tank (UST) program submitted by the Kansas Department of Health and Environment (KDHE). This action also codifies EPA's approval of Kansas's State program and incorporates by reference those provisions of the State regulations that we have determined meet the requirements for approval. The provisions will be subject to EPA's inspection and enforcement authorities under sections 9005 and 9006 of RCRA Subtitle I and other applicable statutory and regulatory provisions.
This rule is effective November 1, 2021, unless EPA receives adverse comment by October 4, 2021. If EPA receives adverse comments, it will publish a timely withdrawal in the
Submit your comments by one of the following methods:
1.
2.
Cassandra Mance, Tanks, Toxics, and Pesticides Branch, Land, Chemical, and Redevelopment Division, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219; (913) 551-7355;
States that have received final approval from the EPA under section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an underground storage tank program that is equivalent to, consistent with, and no less stringent than the Federal UST program. Either EPA or the approved state may initiate program revision. When EPA makes revisions to the regulations that govern the UST program, states must revise their programs to comply with the updated regulations and submit these revisions to the EPA for approval. Program revision may be necessary when the controlling Federal or state statutory or regulatory authority is modified or when responsibility for the state program is shifted to a new agency or agencies.
On February 11, 2021, in accordance with 40 CFR 281.51(a), Kansas submitted a complete program revision application seeking the EPA approval for its UST program revisions (State Application). Kansas's revisions correspond to the EPA final rule published on July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and the 1988 State program approval (SPA) regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the State Application contains the following: A transmittal letter requesting approval, a description of the program and operating procedures, a demonstration of the State's procedures to ensure adequate enforcement, a Memorandum of Agreement outlining the roles and responsibilities of the EPA and the implementing agency, a statement of certification from the Attorney General, and copies of all relevant State statutes and regulations. We have reviewed the State Application and determined that the revisions to Kansas's UST program are equivalent to, consistent with, and no less stringent than the corresponding Federal requirements in subpart C of 40 CFR part 281, and that the Kansas program provides for adequate enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA grants Kansas final approval to operate its UST program with the changes described in the program revision application and as outlined below in section I.G. of this document.
This action does not impose additional requirements on the regulated community because the regulations being approved by this rule are already effective in Kansas and they are not changed by this action. This action merely approves the existing State regulations as meeting the Federal requirements and renders them federally enforceable.
EPA is publishing this direct final rule concurrent with a proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. EPA is providing an opportunity for public comment now.
Along with this direct final rule, the EPA is publishing a separate document in the “Proposed Rules” section of this issue of the
On June 6, 1994, the EPA finalized a rule approving the UST program, effective July 6, 1994, to operate in lieu of the Federal program. On September 27, 1994, effective November 28, 1994, the EPA codified the approved Kansas program, incorporating by reference the State statutes and regulatory provisions that are subject to EPA's inspection and enforcement authorities under RCRA sections 9005 and 9006, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions.
On February 11, 2021, in accordance with 40 CFR 281.51(a), Kansas submitted a complete application for final approval of its UST program revisions adopted on July 6, 2020. The EPA now makes an immediate final decision, subject to receipt of written comments that oppose this action, that Kansas's UST program revisions satisfy all of the requirements necessary to qualify for final approval. Therefore, EPA grants Kansas final approval for the following program changes:
The State also demonstrates that its program provides adequate enforcement of compliance as described in 40 CFR 281.11(b) and part 281, subpart D. The KDHE has broad statutory authority with respect to USTs to regulate installation, operation, maintenance, closure, and UST releases, and to the issuance of orders. These statutory authorities are found in: Kansas Statutes Annotated, Chapter 65, Article 34, Section 100
The following statutory and regulatory provisions are considered broader in scope than the Federal program, and are therefore not enforceable as a matter of Federal law pursuant to 40 CFR 281.12(a)(3)(ii):
Kansas statutes and regulations include references to the aboveground storage tank program, which is broader in scope than the Federal program. KSA 65-34 Sections 105(a)(2), 105(a)(13), 106(a), 118, 129, and 130; KAR 28-44 Section 29.
Agreements between the secretary and local governments or agencies to act as the secretary's agent in order to carry out provisions of the Kansas Storage Tank Act are broader in scope than the Federal program. KSA 65-34 Section112.
Kansas statutory provisions related to the petroleum storage tank release trust funds, environmental assurance fee, and storage tank fee fund are broader in scope than the Federal program. KSA 65-34 Sections 114, 117, 119-125, and 128.
Kansas statutory provisions related to the third-party liability insurance plan and severability are broader in scope than the Federal program. KSA 65-34 Sections 126 and 127.
Kansas statutory provisions related to the UST redevelopment fund are broader in scope. KSA 65-34 Sections 131-134.
Each person installing, removing, or testing a UST or UST system must be licensed in Kansas, submit nonrefundable initial licensing and annual renewal fees, and may have a license suspended or revoked if the requirements are not met. KSA 65-34 Sections 105(a)(8), 105(a)(11), 105(a)(12), 110, and 111; KAR 28-44 Sections 12(c), 12(d), 20, 21, and 22.
Each owner must obtain an installation or modification permit from the department before installing or modifying a UST or UST system and submit an installation application fee. KSA 65-34 Sections 105(a)(10) and 106; KAR 28-44 Sections 12(d) and 15.
Each owner of a UST must submit a registration fee and an annual operating fee for each tank. If an owner fails to submit the completed registration notification form or secure an annual operating permit within the state-specified timeframe, the owner will be assessed penalty fees. KSA 65-34 Section 105(a)(10); KAR 28-44 Sections 12(d), 17(b), 17(c) as it applies to penalty fees, 17(d), 17(e), and 17(f).
Any owner or operator of a nonregulated tank may register that tank with the department for the purpose of qualifying the owner or operator to participate in the petroleum storage tank release trust funds. KAR 28-44 Section 18.
The following regulatory requirements are considered more stringent than the federal program, and on approval, they become part of the federally approved program and are federally enforceable pursuant to 40 CFR 281.12(a)(3)(i):
UST systems with impressed current cathodic protection systems must be inspected every 30 days to ensure the equipment is running properly. KAR 28-44 Section 19(a)(2).
In addition to the recordkeeping requirements listed at 40 CFR 280.34(b), owners and operators of UST systems shall also maintain records on the drop tickets for the preceding 12 months. Kansas defines drop tickets as a bill of lading, invoice, or similar document that reflects fuel delivery by a petroleum transport company to a specific facility and includes the deliverer's name, the delivery date, and the quantity delivered. KAR 28-44 Sections 14(c)(1) and 19(a)(8)(B)(iii).
Only field-constructed tanks and airport hydrant fuel distribution systems can use vapor monitoring as an approved leak detection method. KAR 28-44 Section 23(e).
Groundwater monitoring is not an approved leak detection method. KAR 28-44 Section 23(f).
Within 15 days of permanent closure, each owner or operator shall ensure that each contractor submits a completed permanent tank abandonment form to the department. KAR 28-44 Section 26(a)(3)(C).
No comparable exam is accepted for operator training. KAR 28-44 Section 30(a)(1)(A).
Each Class A operator of a facility or group of facilities shall reside or be stationed within four hours of each managed facility to respond to emergencies as needed. KAR 28-44 Section 30(a)(1)(C).
Codification is the process of placing a state's statutes and regulations that comprise the state's approved UST program into the CFR. Section 9004(b) of RCRA, as amended, allows the EPA to approve State UST programs to operate in lieu of the Federal program. The EPA codifies its authorization of state programs in 40 CFR part 282 and incorporates by reference state statutes and regulations that the EPA will enforce under sections 9005 and 9006 of RCRA and any other applicable state provisions. The incorporation by reference of state authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the approved state program and state requirements that can be federally enforced. This effort provides clear notice to the public of the
EPA incorporated by reference the KDHE approved UST program effective November 28, 1994 (59 FR 186; September 27, 1994). In this document, EPA is revising 40 CFR 282.66 to include the approved revisions.
The purpose of this
EPA is incorporating by reference the Kansas approved UST program in 40 CFR 282.66. Section 282.66(d)(1)(i) incorporates by reference for enforcement purposes the State's statutes and regulations.
Section 282.66 also references the Attorney General's Statement, Demonstration of Adequate Enforcement Procedures, the Program Description, and the Memorandum of Agreement, which are approved as part of the UST program under Subtitle I of RCRA. These documents are not incorporated by reference.
The EPA retains the authority under sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in approved States. With respect to these actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the state authorized analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Kansas procedural and enforcement authorities. Section 282.66(d)(1)(ii) of 40 CFR lists those approved Kansas authorities that would fall into this category.
The public also needs to be aware that some provisions of the State's UST program are not part of the federally approved State program. Such provisions are not part of the RCRA Subtitle I program because they are “broader in scope” than Subtitle I of RCRA. Section 281.12(a)(3)(ii) of 40 CFR states that where an approved state program has provisions that are broader in scope than the Federal program, those provisions are not a part of the federally approved program. As a result, State provisions which are broader in scope than the Federal program are not incorporated by reference for purposes of federal enforcement in part 282. Section 282.66(d)(1)(iii) lists for reference and clarity the Kansas statutory and regulatory provisions which are broader in scope than the Federal program and which are not, therefore, part of the approved program being codified in this document. Provisions that are broader in scope cannot be enforced by EPA; the State, however, will continue to implement and enforce such provisions under State law.
This action only applies to Kansas's UST Program requirements pursuant to RCRA section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable Executive Orders (EOs) and statutory provisions as follows:
The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action approves and codifies State requirements for the purpose of RCRA section 9004 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Because this action approves and codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves and codifies State requirements as part of the State RCRA underground storage tank program without altering the relationship or the distribution of power and responsibilities established by RCRA.
This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a “significant regulatory action” as defined under Executive Order 12866.
Under RCRA section 9004(b), EPA grants a State's application for approval as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State approval application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule approves pre-existing State rules which are at least equivalent to, and no less stringent than existing Federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.
EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive order.
As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the
This rule is issued under the authority of sections 2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous substances, Incorporation by reference, Insurance, Intergovernmental relations, Oil pollution, Penalties, Petroleum, Reporting and recordkeeping requirements, Surety bonds, Water pollution control, Water supply.
For the reasons set forth in the preamble, EPA is amending 40 CFR part 282 as follows:
42 U.S.C. 6912, 6991c, 6991d, and 6991e.
(a)
(b)
(c)
(d)
(1)
(A) EPA-Approved Kansas Statutory Requirements Applicable to the Underground Storage Tank Program, July 2015.
(B) EPA-Approved Kansas Regulatory Requirements Applicable to the Underground Storage Tank Program, July 2020.
(ii)
(iii)
(A) Kansas Statutes Annotated, Chapter 65, Public Health, Article 34, Kansas Storage Tank Act, Sections: 105(a)(2) and 105(a)(13) as they apply to aboveground storage tanks; 105(a)(8) as it applies to tank tightness tester qualifications; 105(a)(10) as it applies to registration and permit fees; 105(a)(11) and 105(a)(12) as they apply to licensing tank installers and/or contractors and fees for these licenses; 106 as it applies to aboveground storage tanks and permits to construct, install, or modify storage tanks; 110 as it applies to licensing tank installers and contractors; 111 as it applies to suspension of licenses; 112 as it applies to agreements between secretary and local governments; 114 as it applies to the underground petroleum storage tank release trust fund; 117 as it applies to the environmental assurance fee; 118 as it applies to corrective action for aboveground storage tanks; 119-125 as they apply to the petroleum storage tank release trust funds; 126 and 127 as they apply to the third party liability insurance plan; 128 as it applies to the storage tank fee fund; 129 and 130 as they apply to the aboveground petroleum storage tank release trust fund; 131-134 and 139 as they apply to the UST redevelopment fund.
(B) Kansas Department of Health and Environment Permanent Administrative Regulations, Chapter 28, Article 44, Petroleum Products Storage Tanks, Sections: 12(c) as it applies to the suspension and revocation of licenses; 12(d) as it applies to fee payments; 15 as it applies to underground storage tank installation or modification permits and the fees for these permits; 17(b)-(f) as they apply to the fees for underground storage tank registration and annual operating permits and the associated penalties; 18 as it applies to registration of non-regulated underground storage tanks; 20-22 as they apply to licensing underground storage tank contractors, installers, testers, and removers, fees for these licenses, and the suspension or revocation of tester licenses; 29 as it applies to aboveground storage tanks.
(2)
(3)
(4)
(5)
(a) The statutory provisions include Kansas Statutes Annotated, 2015; Chapter 65, Public Health; Article 34, Solid and Hazardous Waste; Section 100
Section 100 Statement of legislative findings
Section 101 Citation of Act
Section 102 Definitions
Section 103 Exceptions to application of Act
Section 104 Notification to department of tank's existence
Section 105 Rules and regulations, except for 65-34, 105 (a)(2), the following words in (a)(8), “including determination of the qualifications of persons performing or offering to perform such testing,” (a)(10), (a)(11), (a)(12) and the following words in (a)(13), “and aboveground storage tanks in existence on July 1, 1992” and “and aboveground storage tanks placed in service prior to July 1, 1992”
Section 106 Permit to construct, install, modify, or operate storage tank, except the following words in the title and (a), “construct, install, modify or” and “and any aboveground storage tank registered with the department on July 1, 1992,”
Section 107 Evidence of financial responsibility required; limitation of liability
Section 115 Liability for costs of corrective action
Section 118 Corrective action; duties of owners and operators; duties of Secretary; consent agreement; contents, except for the following words in (b), “or from the aboveground fund, if the release was from an aboveground petroleum storage tank.” and “or from the aboveground fund, if the release was from an aboveground petroleum storage tank.”
Section 135 Underground storage tank operators, training program, requirements
Section 138 Underground storage tank systems; secondary containment
(b) The regulatory provisions include Kansas Administrative Regulations, 2020; Chapter 28, Department of Health and Environment; Article 44, Petroleum Products Storage Tanks:
Section 12 General provisions, except (c) and (d)
Section 13 Program scope and interim prohibition
Section 14 Definitions
Section 16 Underground storage tank systems: Design, construction, installation, modification, and notification
Section 17 Underground storage tank registration and operating permit, except (b), the following words in (c), “be assessed a penalty fee of $50.00 for each tank if the owner fails to”, (d), (e), and (f)
Section 19 General operating requirements
Section 23 Release detection
Section 24 Release reporting, investigation, and confirmation
Section 25 Release response and corrective action for UST systems
Section 26 Out-of-service UST systems and closure
Section 27 Financial responsibility
Section 30 Operating training and requirements
Section 31 UST systems with field-constructed tanks and airport hydrant fuel distribution systems
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of “other rockfish” in the Western and Central Regulatory Areas of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2021 total allowable catch of “other rockfish” in the Western and Central Regulatory Areas of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), August 30, 2021, through 2400 hours, A.l.t., December 31, 2021.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679.
The 2021 total allowable catch (TAC) of “other rockfish” in the Western and Central Regulatory Areas of the GOA is 940 metric tons (mt) as established by the final 2021 and 2022 harvest specifications for groundfish of the GOA (86 FR 10184, February 19, 2021).
In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2021 “other rockfish” TAC in the Western and Central Regulatory Areas of the GOA will soon be reached. Therefore, NMFS is requiring that “other rockfish” in the Western and Central Regulatory Areas of the GOA be treated as prohibited species in accordance with § 679.21(b), as described under § 679.21(a), for the remainder of the year, except other rockfish species in the Western and Central Regulatory Areas of the GOA caught by catcher vessels using hook-and-line, pot, or jig gear as described in § 679.20(j).
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting retention of “other rockfish” in the Western and Central Regulatory Areas of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 26, 2021.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels greater than or equal to 50 feet length overall (LOA) using hook-and-line gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2021 Pacific cod total allowable catch apportioned to catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2021, through 2400 hours, A.l.t., December 31, 2021.
Allyson Olds, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The 2021 Pacific cod total allowable catch (TAC) apportioned to catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA is 680 metric tons (mt), as established by the final 2021 and 2022 harvest specifications for groundfish of the GOA (86 FR 10184, February 19, 2021).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region,
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by catcher vessels greater than or equal to 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 27, 2021.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2021 Pacific cod total allowable catch apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2021, through 2400 hours, A.l.t., December 31, 2021.
Allyson Olds, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The 2021 Pacific cod total allowable catch (TAC) apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA is 2,071 metric tons (mt), as established by the final 2021 and 2022 harvest specifications for groundfish of the GOA (86 FR 10184, February 19, 2021).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2021 Pacific cod TAC apportioned to trawl catcher vessels in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,871 mt and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 27, 2021.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Request for information.
The U.S. Department of Energy (“DOE”) is undertaking an early assessment review to determine whether to proceed with a rulemaking to amend the test procedures for faucets and showerheads. Specifically, through this request for information (“RFI”), DOE seeks comment on the applicable consensus-based test procedures for measuring the water use of faucets and showerheads and whether such industry produces results that measure water use during a representative average use cycle or period of use for faucets and showerheads, and are not unduly burdensome to conduct. DOE welcomes written comments from the public on any subject within the scope of this document (including topics not raised in this RFI) as well as the submission of data and other relevant information concerning this early assessment review.
Written comments and information are requested and will be accepted on or before October 4, 2021.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, the Department has found it necessary to make temporary modifications to the comment submission process in light of the ongoing corona virus (COVID-19) pandemic. DOE is currently accepting only electronic submissions at this time. If a commenter finds that this change poses an undue hardship, please contact Appliance Standards Program staff at (202) 586-1445 to discuss the need for alternative arrangements. Once the COVID-19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section III of this document.
The docket web page can be found at
Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-0371. Email:
Ms. Amelia Whiting, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2588. Email:
For further information on how to submit a comment or review other public comments and the docket, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
DOE established an early assessment review process to conduct a more focused analysis that would allow DOE to determine, based on statutory criteria, whether an amended test procedure is warranted. This RFI requests information and data regarding whether amended test procedures would more accurately and fully comply with the requirement that the test procedures produce results that measure water use during a representative average use cycle or period of use for faucets and showerheads, and not be unduly burdensome to conduct. To inform interested parties and to facilitate this process, DOE has identified several issues associated with the currently applicable test procedures on which DOE is interested in receiving comment.
Based on the information received in response to the RFI and DOE's own analysis, DOE will determine whether to proceed with a rulemaking for an
The Energy Policy and Conservation Act of 1975, as amended (“EPCA”)
The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards,
Federal energy efficiency and water use requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))
The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making representations about the water use of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section be reasonably designed to produce test results which measure energy efficiency, energy use, water use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2))
EPCA directs that the test procedures for faucets and showerheads are to be the test procedures specified in American Society of Mechanical Engineers (ASME) Standard A112.18.1M-1989, “Plumbing Fixture Fittings.” (42 U.S.C. 6293(b)(7)(A)) EPCA further directs that, if the test procedure requirements of ASME A112.18.1M-1989 are revised at any time and approved by the American National Standards Institute (ANSI), DOE must amend the Federal test procedures to conform to the revised ASME standard, unless DOE determines by rule that to do so would not meet the requirements of EPCA that the test procedures be reasonably designed to produce test results which measure water use during a representative average use cycle as determined by DOE, and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(7)(B); 42 U.S.C. 6293(b)(3))
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product, including faucets and showerheads, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to be reasonably designed to produce test results that reflect water use and estimated operating costs during a representative average use cycle or period of use and not to be unduly burdensome to conduct. (42 U.S.C. 6293(b)(1)(A)) If the Secretary determines, on his own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the
DOE's test procedures for faucets and showerheads are prescribed at 10 CFR 430.23(s) and (t), respectively, and 10 CFR part 430 subpart B appendix S (“Appendix S”). In addition, DOE regulations reiterate statutory standards for faucets and showerheads. 10 CFR 430.32(o) and (p). DOE is publishing this RFI to collect data and information to inform its decision in response to revisions to the ASME standard and pursuant to the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A) and 42 U.S.C. 6293(b)(7)(B))
DOE's current test procedures for faucets and showerheads are codified at 10 CFR 430.23(s) and (t), respectively, and Appendix S. DOE initially established test procedures for faucets and showerheads in a final rule published on March 18, 1998, which referenced ASME A112.18.1M-1989, “Plumbing Fixture Fittings,” incorporated by reference into 10 CFR part 430, then the most recent revision of that industry standard. 63 FR 13308.
DOE last amended the test procedures for faucets and showerheads on October 23, 2013 (“October 2013 Final Rule”). 78 FR 62970. In that final rule, DOE incorporated by reference ASME A112.18.1-2012, “Plumbing Supply Fixtures” as part of the test procedures for faucets and showerheads. 78 FR 62970, 62982. Since then, the 2012 version of the ASME standard was re-
On December 16, 2020, DOE published a final rule amending the definition for “showerhead” and adopted definitions for “body spray” and “safety showerhead.” 85 FR 81341 (“December 2020 Final Rule”). DOE amended the regulatory definition for “showerhead” to incorporate the definition from the most recent standard developed by ASME, such that the term means “an accessory to a supply fitting for spraying onto a bather, typically from an overhead position.” 85 FR 81341, 81342, 81359. Under the December 2020 Final Rule, DOE interpreted the term “showerhead” such that each showerhead in a product containing multiple showerheads is considered separately for purposes of determining compliance with the 2.5 gallon per minute (“gpm”) standard established in EPCA. 85 FR 81341, 81342. In the December 2020 Final Rule, DOE adopted a definition for “body spray”, such that the term means “a shower device for spraying water onto a bather from other than the overhead position. A body spray is not a showerhead.” 85 FR 81341, 81359. DOE also established a definition for “safety shower showerhead” meaning “a showerhead designed to meet the requirements of the International Equipment Safety association (“ISEA”) standard ISEA Z358.1,
On July 22, 2021, DOE published a notice of proposed rulemaking (“NOPR”) in which it proposed to withdraw the definition of “showerhead” adopted in the December 2020 Final Rule, reinstate the definition of “showerhead” from the October 2013 Final Rule, and withdraw the interpretation from the December 2020 Final Rule. 86 FR 38594 (“July 2021 NOPR”). As proposed, the term “showerhead” would be redefined as “a component or set of components distributed in commerce for attachment to a single supply fitting, for spraying water onto a bather, typically from an overhead position, excluding safety shower showerheads.” 86 FR 38594, 38607. DOE explained that it considered that water conservation is a more important purpose of EPCA than consistency with ASME (with which DOE has no statutory obligation to align its definition). 86 FR 38594, 38597. DOE also proposed to withdraw the definition of “body spray,” explaining that the definition is inconsistent with the express purpose of EPCA to conserve water and does not best address the relationship between body sprays and showerheads. 86 FR 38594, 38603. DOE did not propose any changes to the definition of “safety shower showerhead” in the July 2021 NOPR. 86 FR 38594, 38603-38604.
In the following sections, DOE has identified a variety of issues on which it seeks input to determine whether the current version of the applicable industry test procedure for faucets and showerheads would comply with the requirements in EPCA that test procedures be reasonably designed to produce test results which reflect energy and water use during a representative average use cycle or period of use, without being unduly burdensome to conduct (42 U.S.C. 6293(b)(3)).
Additionally, DOE has identified a variety of issues on which it seeks input to determine whether, and if so how, amended test procedures for faucets and showerheads would more accurately or fully comply with the requirements in EPCA that test procedures be reasonably designed to produce test results which reflect water use during a representative average use cycle or period of use, without being unduly burdensome to conduct (42 U.S.C. 6293(b)(3)).
EPCA and DOE regulations define “faucet” as “a lavatory faucet, kitchen faucet, metering faucet, or replacement aerator for a lavatory or kitchen faucet.” (42 U.S.C. 6291(31)(E); 10 CFR 430.2. This definition defines the scope of the term by reference to the categories of faucets contained within in it (
With regards to kitchen faucets specifically, DOE's review of the market suggests that there are a variety of terminal fittings available on the market that are marketed for installation in a kitchen. Certain of these products are explicitly marketed as “kitchen faucets.” Other products marketed for installation in the kitchen are characterized in the market as “low-pressure water dispensers” and “pot fillers,” and appear to be within the scope of the statutory term “faucet.” In the following discussion, DOE describes its understanding of these products and seeks comment and information from interested parties regarding such products. Throughout this discussion, DOE uses the term “conventional kitchen faucet” to refer to products explicitly marketed as kitchen faucets and for which the current DOE test procedure and water conservation standards apply, and to distinguish from products that may also be “kitchen faucets” but that may not be within the scope of the current test procedure.
ASME A112.18.1-2018 added a definition for “low-pressure water dispenser” and defines the term as “a terminal fitting located downstream of a pressure reducing valve that dispenses drinking hot water above 71 °C (160 °F) or cold water or both at a pressure of 105 kPa (15 psi) or less.” As discussed previously, ASME A112.18.1-2018 defines faucet as “a terminal fitting”. The reference to “terminal fitting” in the industry definition of “low-pressure water dispenser” indicates that ASME A112.18.1-2018 classifies such products as a subset of faucets. DOE does not define “low-pressure water dispenser” and does not reference the term in the DOE test procedure for faucets. Based on DOE's market research, such products on the market may also be referred to as “beverage faucets,” “drinking water faucets,” or “hot/cold water dispensers”. DOE understands that the key differences between low-pressure water dispensers and conventional kitchen faucets are that low-pressure water dispensers operate at lower water pressures (by definition) and are used for the purpose of gently filling a relatively small vessel (
The DOE water conservation standard for faucets specifies that water use must be “measured at a flowing water pressure of 60 pounds per square inch [(`psi')],” 10 CFR 430.32(o). The same conditions are specified in section 5.4.2.3.1 of ASME A112.18.1-2012 (referenced at section 2.a of Appendix S). However, for testing low-pressure water dispensers, section 5.4.2.3.1 of ASME A112.18.1-2018 specifies a maximum flow for low-pressure water dispensers—
Other terminal fittings used in the kitchen, such as pot fillers, may also warrant differentiation from currently regulated kitchen faucets. ASME A112.18.1-2018 does not define pot fillers, nor does the current DOE test procedure. Based on DOE's market research, the key differences between products described as “pot fillers” and conventional kitchen faucets are that pot fillers are typically installed over a range or cooktop (rather than over a sink), plumbed only to the cold water supply, and are used for the purpose of filling a large vessel (
For both low-pressure water dispensers and pot fillers (as DOE has described such products in this discussion), DOE understands that the primary function of such products is to fill a vessel with water (
DOE did not consider pot fillers and low-pressure water dispensers when establishing the current test procedure and standards for faucets. As stated, EPCA directs DOE to base the Federal test procedure on ASME A112.18.1, which did not include provisions for testing low-pressure water dispensers until the latest revision (2018) and continues to not define or include provisions specific to pot fillers. In establishing the current DOE test procedure, DOE did not consider products that may be faucets but that were not subject to the statutorily referenced industry standard. Therefore, the current test procedure in Appendix S and standards at 10 CFR 430.32(o) for faucets do not apply to low-pressure water dispensers or pot fillers. To the extent that such products are not subject to the DOE test procedure, such products are also excluded from coverage under the energy conservation standards.
Issue 1: DOE requests comment on the term “faucet” as defined in ASME A112.18.1-2018 and whether further detail is warranted for DOE's regulatory definitions.
Issue 2: DOE requests comment on its understanding of “low-pressure water dispensers” and “pot fillers” as a subset of faucets, specifically kitchen faucets.
Issue 3: DOE requests comment on whether any changes should be made to DOE's definition of “faucet” to differentiate products such as low-pressure water dispensers and pot fillers from conventional “kitchen faucets.”
Issue 4: DOE requests comment on whether the Department should incorporate into the Federal regulations definitions of low-pressure water dispenser, pot filler, or any other types of products that meet the definition of a faucet. If other faucet types should be defined, DOE requests comment on specific physical (or operational, or other) characteristics that could be used to differentiate such products from currently regulated faucets.
Issue 5: DOE requests comment on whether DOE should expand the scope of its test procedures for faucets to include provisions for testing low-pressure water dispensers, pot fillers, or any other types of faucets.
Issue 6: DOE requests comment on its understanding of the primary purpose of low-pressure water dispensers and pot fillers (
As previously noted, DOE regulations currently define “showerhead” as “any showerhead (including a handheld showerhead) other than a safety showerhead. DOE interprets the term `showerhead' to mean an accessory to a supply fitting for spraying water onto a bather, typically from an overhead position.” 10 CFR 430.2. Pursuant to the requirements of EPCA, DOE seeks input on any updates to the showerheads scope and definitions from the latest ASME industry standard, ASME A112.18.1-2018.
ASME A112.18.1-2018 added new definitions for “hand-held shower” and “rain shower.” ASME defines a “hand-held shower” as “a showerhead that can be held or fixed in place for spraying water onto a bather and that is connected to a flexible hose.” ASME A112.18.1-2018 defines a “rain shower” as “a showerhead designed to be mounted directly over the bather with the spray face parallel to the floor. Note: The showerhead can be mounted directly from the ceiling or on an extended shower arm.”
Currently, DOE defines the term “hand-held showerhead” as “a showerhead that can be held or fixed in place for the purpose of spraying water onto a bather and that is connected to a flexible hose.” 10 CFR 430.2. Considering that the DOE definition is almost identical to the definition in the ASME industry standard, DOE tentatively concludes that there is no reason to make any updates to this definition at this time.
While DOE's regulations do not currently define the term “rain shower”, the existing and proposed definition of “showerhead” covers rain showers. ASME A112.18.1-2018, section 5.12.3, includes a new definition for rain shower in light of the standard's new spray force requirements specific to rain showers. Considering the DOE test procedure includes a showerhead test procedure for only maximum water consumption and not spray force, DOE tentatively concludes that there is no reason to include the term and definition for rain shower at this time, and seeks comment on that tentative conclusion.
Issue 7: DOE requests comment on whether DOE should include the term “rain shower” and a definition of the term in its regulations.
Issue 8: DOE requests comment on whether any changes to current definitions related to the faucet and showerhead test procedure beyond those discussed in this RFI (other than with regard to the issues raised in the July 2021 NOPR) should be considered. DOE requests comment on the potential impact to the scope of the Federal test procedure from any changes to the definitions, should DOE incorporate them. DOE also requests comment on whether any potential changes to the definitions would impact the repeatability and reproducibility of the test procedure or the representativeness of its results.
In addition to the revised definitions described previously, ASME A112.18.1-2018 includes the following changes in comparison to the 2012 version incorporated into 10 CFR part 430: (1) A new requirement in section 5.4.2.3.1 specifying a lower water pressure for testing low-pressure water dispensers compared to the 60 ± 1 psi water pressure used to test faucets; (2) a clarification in section 5.4.2.3.2 that “hand showers” are “hand-held” showers; and (3) updates to Table 1, including adding a low-pressure water dispenser maximum flow rate level and removing a note to refer to clause 4.11.1 for the showerhead minimum flow rate requirement.
Issue 9: DOE requests comment on the maximum water use test method for low-pressure water dispensers, as detailed in section 5.4.2.3.1 of ASME A112.18.1-2018. DOE requests comment and data, if available, on the water pressure under which low-pressure water dispensers typically operate in the field, and the extent to which the specified water pressure of 105 ± 7 kPa (15 ± 1 psi) is representative of actual use.
Issue 10: DOE also welcomes detailed information on the nature and extent of any testing cost or burden that would be associated with conducting the test for low-pressure water dispensers as specified in ASME A112.18.1-2018, as compared to the current DOE test procedure.
As discussed previously, ASME A112.18.1-2018 also provides a clarification in section 5.4.2.3.2 that “hand showers” are “hand-held” showers. DOE tentatively concludes that the update in ASME A112.18.1-2018 changing the term “hand shower” to “hand-held shower” is an insignificant clarification. Finally, the updates to Table 1 regarding the maximum flow rate for low-pressure water dispensers and minimum flow rate for showerheads relate to the water conservation standards and are therefore beyond the scope of the test procedures. (DOE adopted the statutory maximum water use standards for faucets and showerheads in 10 CFR 430.32(o) and (p).)
DOE also notes that ASME A112.18.1-2018 does not contain any updates to the water consumption test method for showerheads.
In the December 2020 Final Rule, DOE maintained the test procedure for showerheads. DOE stated that the existing test procedure remains applicable to shower heads as defined by that final rule and that if issues arise where the existing test procedure does not produce a representative measurement of water use of a particular showerhead product, the manufacturer can seek a waiver from DOE pursuant to DOE regulations at 10 CFR 430.27. 85 FR 81341, 81351. DOE also noted that EPCA requires DOE to consider on a periodic basis whether test procedures for a covered product should be amended (under 42 U.S.C 6293).
As noted, DOE has proposed to withdraw the definition of “showerhead” adopted in the December 2020 Final Rule, reinstate the definition of “showerhead” from the October 2013 Final Rule, and withdraw the interpretation from the December 2020 Final Rule. DOE also proposes to withdraw the definition of “body spray.” 86 FR 38594, 38603.
Issue 11: DOE requests comment on whether the existing test procedure for showerheads needs to be amended based on DOE's amended definition for showerhead (
DOE invites all interested parties to submit in writing by October 4, 2021, comments and information on matters addressed in this notice and on other matters relevant to DOE's consideration of amended test procedures for faucets and showerheads. These comments and information will aid in the development of a test procedure NOPR for faucets and showerheads if DOE determines that amended test procedures may be appropriate for these products.
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Following this instruction, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
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Include contact information each time you submit comments, data, documents, or other information to DOE. Faxes will not be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at
This document of the Department of Energy was signed on August 27, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Extension of public comment period.
On August 9, 2021, the U.S. Department of Energy (“DOE”) published a request for information (“RFI”) undertaking an early assessment review for amended energy conservation standards for commercial and industrial pumps (“pumps”). The RFI provided an opportunity for submitting written comments, data, and information by September 8, 2021. DOE received requests from Grundfos and Pentair on August 10, 2021 and August 12, 2021, respectively, asking DOE to extend the public comment period for 60 days until November 8, 2021. Additionally, DOE received requests from the Hydraulic Institute (“HI”), and a group of California Investor-Owned Utilities (“CA IOUs”), comprised of Pacific Gas and Electric Company, San Diego Gas and Electric and Southern California Edison, on August 12, 2021 and August 13, 2021, respectively, asking DOE to extend the public comment period for 30 days until October 8, 2021. DOE has reviewed these requests and is granting an extension of the public comment period to allow public comments to be submitted until October 8, 2021.
The comment period for the RFI published on August 9, 2021 (86 FR 43430) is extended. DOE will accept comments, data, and information regarding this RFI received no later than October 8, 2021.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
No telefacsimilies (“faxes”) will be accepted.
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, the Department has found it necessary to make temporary modifications to the comment submission process in light of the ongoing Covid-19 pandemic. DOE is currently accepting only electronic submissions at this time. If a commenter finds that this change poses an undue hardship, please contact Appliance Standards Program staff at (202) 586-1445 to discuss the need for alternative arrangements. Once the Covid-19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
The docket web page can be found at:
Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-9870. Email:
Ms. Amelia Whiting, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-2588. Email:
For further information on how to submit a comment or review other public comments and the docket contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
On August 9, 2021, DOE published a RFI undertaking an early assessment review for amended energy conservation standards for pumps to determine whether to amend applicable energy conservation standards. Specifically, DOE is seeking data and information to evaluate whether amended energy conservation standards would result in a significant savings of energy; be technologically feasible; and be economically justified. 86 FR 43430. Interested parties in the matter, Grundfos (on August 10, 2021), HI (on August 12, 2021), Pentair (on August 12, 2021), and CA IOUs (on August 13, 2021), requested an extension of the public comment period for the RFI. (Grundfos, No. 2 at p. 1; HI, No. 3 at p. 1; Pentair., No. 4 at p. 1; CA IOUs, No. 5, at p. 1).
DOE has reviewed the requests and is extending the comment period to allow additional time for interested parties to submit comments. As noted, the RFI was issued as part of an early assessment review to determine whether to amend energy conservation standards for pumps. Based on the information received in response to this RFI, DOE will determine whether to proceed with a rulemaking for a new or amended energy conservation standard. If DOE makes an initial determination that a new or amended energy conservation standard would satisfy the applicable statutory criteria or DOE's analysis is inconclusive, DOE would undertake the preliminary stages of a rulemaking to issue a new or amended energy conservation standard. If DOE makes an initial determination based upon available evidence that a new or amended energy conservation standard would not meet the applicable statutory criteria, DOE will engage in notice and comment rulemaking before issuing a final determination that new or amended energy conservation standards are not warranted. As such, DOE has determined that an extension of 30 days is sufficient for this preliminary stage. Therefore, DOE is extending the comment period until October 8, 2021.
This document of the Department of Energy was signed on August 27, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Drug Enforcement Administration, Department of Justice.
Notice of proposed rulemaking.
The Drug Enforcement Administration proposes placing
Comments must be submitted electronically or postmarked on or before October 4, 2021.
Interested persons may file written comments on this proposal in accordance with 21 CFR 1308.43(g). Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
Interested persons may file a request for a hearing or waiver of hearing pursuant to 21 CFR 1308.44 and in accordance with 21 CFR 1316.45 and/or 1316.47, as applicable. Requests for a hearing and waivers of an opportunity for a hearing or to participate in a hearing, together with a written statement of position on the matters of
To ensure proper handling of comments, please reference “Docket No. DEA-737” on all electronic and written correspondence, including any attachments.
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Dr. Terrence L. Boos, Drug and Chemical Evaluation Section, Diversion Control Division, Drug Enforcement Administration; Telephone: (571) 362-3249.
Please note that all comments received in response to this docket are considered part of the public record. The Drug Enforcement Administration (DEA) will make them available, unless reasonable cause is given, for public inspection online at
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify the confidential business information to be redacted within the comment.
DEA will make available publicly in redacted form comments containing personal identifying information or confidential business information identified as directed above. If a comment has so much confidential business information that it cannot be redacted effectively, all or part of that comment may not be made available publicly. Comments posted to
An electronic copy of this document and supplemental information to this proposed rule are available at
Pursuant to 21 U.S.C. 811(a), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. 551-559. 21 CFR 1308.41-1308.45; 21 CFR part 1316, subpart D. Interested persons may file requests for hearing or notices of intent to participate in a hearing in conformity with the requirements of 21 CFR 1308.44(a) or (b), and include a statement of interest in the proceeding and the objections or issues, if any, concerning which the person desires to be heard. 21 CFR 1316.47(a). Any interested person may file a waiver of an opportunity for a hearing or to participate in a hearing together with a written statement regarding the interested person's position on the matters of fact and law involved in any hearing as set forth in 21 CFR 1308.44(c).
All requests for a hearing and waivers of participation, together with a written statement of position on the matters of fact and law asserted in the hearing, must be sent to DEA using the address information provided above.
The United States is a party to the 1971 United Nations Convention on Psychotropic Substances (1971 Convention), February 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175, as amended. Procedures respecting changes in drug schedules under the 1971 Convention are governed domestically by 21 U.S.C. 811(d)(2-4). When the United States receives notification of a scheduling decision pursuant to Article 2 of the 1971 Convention adding a drug or other substance to a specific schedule, the Secretary of the Department of Health and Human Services (HHS),
Methiopropamine is a central nervous stimulant and is structurally related to the schedule II stimulants methamphetamine and amphetamine. On April 21, 2017, the Secretary-General of the United Nations advised the Secretary of State of the United States that during its 60th session, on March 16, 2017, the Commission on Narcotic Drugs voted to place
Article 2, paragraph 7(b), of the 1971 Convention sets forth the minimum requirements that the United States must meet when a substance has been added to Schedule II of the 1971 Convention. Pursuant to the 1971 Convention, the United States must require licenses for the manufacture, export and import, and distribution of methiopropamine. This license requirement is accomplished by the CSA's registration requirement as set forth in 21 U.S.C. 822, 823, 957, 958 and in accordance with 21 CFR parts 1301 and 1312. In addition, the United States must adhere to specific export and import provisions set forth in the 1971 Convention. This requirement is accomplished by the CSA's export and import provisions established in 21 U.S.C. 952, 953, 957, 958 and in accordance with 21 CFR part 1312. Likewise, under Article 13, paragraphs 1 and 2, of the 1971 Convention, a party to the 1971 Convention may notify through the UN Secretary-General another party that it prohibits the importation of a substance in Schedule II, III, or IV of the 1971 Convention. If such notice is presented to the United States, the United States shall take measures to ensure that the named substance is not exported to the notifying country. This requirement is also accomplished by the CSA's export provisions mentioned above. Under Article 16, paragraph 4, of the 1971 Convention, the United States is required to provide annual statistical reports to the International Narcotics Control Board (INCB). Using INCB Form P, the United States shall provide the following information: (1) In regard to each substance in Schedule I and II of the 1971 Convention, quantities manufactured in, exported to, and imported from each country or region as well as stocks held by manufacturers; (2) in regard to each substance in Schedule II and III of the 1971 Convention, quantities used in the manufacture of exempt preparations; and (3) in regard to each substance in Schedule II-IV of the 1971 Convention, quantities used for the manufacture of non-psychotropic substances or products. Lastly, under Article 2 of the 1971 Convention, the United States must adopt measures in accordance with Article 22 to address violations of any statutes or regulations that are adopted pursuant to its obligations under the 1971 Convention. Persons acting outside the legal framework established by the CSA are subject to administrative, civil, and/or criminal action; therefore, the United States complies with this provision.
DEA notes that there are differences between the schedules of substances in the 1971 Convention and the CSA. The CSA has five schedules (schedules I-V) with specific criteria set forth for each schedule. Schedule I is the only possible schedule in which a drug or other substance may be placed if it has high potential for abuse and no currently accepted medical use in treatment in the United States. See 21 U.S.C. 812(b). In contrast, the 1971 Convention has four schedules (Schedules I-IV) but does not have specific criteria for each schedule. The 1971 Convention simply defines its four schedules, in Article 1, to mean the correspondingly numbered lists of psychotropic substances annexed to the Convention, and altered in accordance with Article 2.
On November 20, 2018, DEA requested HHS conduct a scientific and medical evaluation and recommend whether methiopropamine should be controlled under the CSA. On August 27, 2020 (dated August 25, 2020), HHS provided DEA a scientific and medical evaluation entitled “Basis for the recommendation to control methiopropamine and its salts in schedule I of the Controlled Substance Act” and a scheduling recommendation. Pursuant to 21 U.S.C. 811(b), following consideration of the eight-factors and findings related to the substance's abuse potential, legitimate medical use, safety, and dependence liability, HHS recommended that methiopropamine be controlled in schedule I of the CSA under 21 U.S.C. 812(b). Upon receipt of the scientific and medical evaluation and scheduling recommendation from HHS, DEA reviewed the documents and all other relevant data and conducted its own eight-factor analysis in accordance with 21 U.S.C. 811(c). Included below is a brief summary of each factor as analyzed by HHS and DEA, and as considered by DEA in its proposed scheduling action. Please note that both DEA and HHS eight-factor analyses are available in their entirety under the tab “Supporting Documents” of the public docket of this rulemaking action at
1.
(a) There is evidence that individuals are taking the drug or drugs containing such a substance in amounts sufficient to create a hazard to their health or to the safety of other individuals or to the community; or
(b) There is significant diversion of the drug or drugs containing such a substance from legitimate drug channels; or
(c) Individuals are taking the drug or drugs containing such a substance on their own initiative rather than on the basis of medical advice from a practitioner licensed by law to administer such drugs in the course of his professional practice; or
(d) The drug or drugs containing such a substance are new drugs so related in their action to a drug or drugs already listed as having a potential for abuse to make it likely that the drug will have the same potentiality for abuse as such drugs, thus making it reasonable to assume that there may be significant diversions from legitimate channels, significant use contrary to or without medical advice, or that it has a substantial capability of creating hazards to the health of the user or to the safety of the community.
Both DEA and HHS eight-factor analyses found that methiopropamine has abuse potential associated with its abilities to produce psychoactive effects that are similar to those produced by schedule II stimulants such as amphetamine and methamphetamine
Methiopropamine has no approved medical uses in the United States. Because this substance is not an approved drug product, a practitioner may not legally prescribe it, and it cannot be dispensed to an individual. The use of this substance without medical advice leads to the conclusion that this stimulant is being abused for its psychoactive properties.
Reports from public health and law enforcement suggest that this substance is being abused and taken in amounts sufficient to create a hazard to an individual's health. This hazard is evidenced by deaths, representing a safety issue for those in the community. Further, methiopropamine was first identified in the National Forensic Laboratory Information System (NFLIS)
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Self-reports by methiopropamine users in 2020 suggest that the pharmacokinetics of the drug following insufflation are rapid, with the onset of effects occurring five to ten minutes after administration. Methiopropamine reaches its maximum concentration at approximately thirty to sixty minutes later, with a duration of action that can persist for two to four hours. Limited studies identify nor-methiopropamine as the main metabolite found in bodily fluids.
Neither DEA nor HHS is aware of any currently accepted medical use for methiopropamine. According to HHS's August 2020 scientific and medical evaluation and scheduling recommendation, the Food and Drug Administration (FDA) has not approved a marketing application for a drug product containing methiopropamine for any therapeutic indication, nor is HHS aware of any reports of clinical studies or claims of an accepted medical use for methiopropamine in the United States.
Although no evidence suggests that methiopropamine has a currently accepted medical use in treatment in the United States, it bears noting that a drug cannot be found to have such medical use unless DEA concludes that it satisfies a five-part test. Specifically, with respect to a drug that has not been approved by FDA, all of the following must be demonstrated: The drug's chemistry is known and reproducible; there are adequate safety studies; there are adequate and well-controlled studies proving efficacy; the drug is accepted by qualified experts; and the scientific evidence is widely available. 57 FR 10499 (1992),
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In summary, data suggests that methiopropamine produces behavioral effects in animals and humans similar to those of schedule II stimulants. Although there are no clinical studies evaluating dependence liabilities specific for methiopropamine, the pharmacological profile of this substance suggests that it possesses dependence liabilities qualitatively similar to schedule II substances such as amphetamine and methamphetamine.
8.
The CSA establishes five schedules of controlled substances known as schedules I, II, III, IV, and V. The CSA also outlines the findings required to place a drug or other substance in any particular schedule. 21 U.S.C. 812(b). After consideration of the analysis and recommendation of the Assistant Secretary for Health of HHS and review of all other available data, the Administrator, pursuant to 21 U.S.C. 811(a) and 812(b)(1), finds that:
Methiopropamine, similar to the schedule II stimulants amphetamine and methamphetamine, is a stimulant with a high potential for abuse. In animals, behavioral locomotor studies show that methiopropamine produces stimulation similar to that of methamphetamine. As HHS mentions, methiopropamine abuse in humans has been reported in at least 16 countries, including North America and Europe. Additionally, typical stimulant effects such as euphoria, psychomotor stimulation, and anxiety have been described from self-reports of methiopropamine abusers. These effects are similar to those of schedule II stimulant such as methamphetamine and amphetamine. These data collectively indicate that methiopropamine has a high potential for abuse similar to other substances in schedule II such as amphetamine and methamphetamine.
According to HHS, FDA has not approved a marketing application for a drug product containing methiopropamine for any therapeutic indication. As HHS states, there are also no clinical studies or petitioners that claim an accepted medical use in the United States. In addition, as discussed above in the Factor 3 analysis, methiopropamine does not satisfy DEA's five-part test for having a currently accepted medical use in treatment in the United States.
Currently, methiopropamine does not have an accepted medical use as noted by HHS. Because methiopropamine has no approved medical use in treatment in the United States and has not been investigated as a new drug, its safety for use under medical supervision has not been determined. Thus, there is a lack of accepted safety for use of methiopropamine under medical supervision.
Although the first finding shows methiopropamine to have similar effects to schedule II substances such as amphetamine and methamphetamine, it bears reiterating that there is only one possible schedule in the CSA—schedule I—to place methiopropamine since it has no currently accepted medical use in treatment in the United States. See the background section for additional discussion.
Based on these findings, the Administrator concludes that methiopropamine (chemical name:
If this rule is finalized as proposed, methiopropamine would become subject to the CSA's schedule I regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, engagement in research, and conduct of instructional activities or chemical analysis with, and possession of schedule I controlled substances, including the following (as of the effective date of the planned final scheduling action):
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Any person who becomes registered with DEA to handle methiopropamine on or after the effective date of a final scheduling action would be required to have an initial inventory of all stocks of controlled substances (including methiopropamine) on hand on the date the registrant first engages in the handling of controlled substances pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (b).
After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including methiopropamine) on hand every two years, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.
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In accordance with 21 U.S.C. 811(a), this proposed scheduling action is subject to formal rulemaking procedures performed “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order (E.O.) 12866 and the principles reaffirmed in E.O. 13563.
This proposed regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.
This proposed rulemaking does not have federalism implications warranting the application of E.O. 13132. The proposed rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.
This proposed rule does not have tribal implications warranting the application of E.O. 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
The Administrator, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-602, has reviewed this proposed rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities.
DEA proposes placing the substance methiopropamine (chemical name:
According to HHS, methiopropamine has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks accepted safety for use under medical supervision. DEA's research confirms that there is no legitimate commercial market for methiopropamine in the United States. Therefore, DEA estimates that no United States entity currently handles methiopropamine and does not expect any United States entity to handle methiopropamine in the foreseeable future. DEA concludes that no legitimate United States entity would be affected by this rule if finalized. As such, the proposed rule will not have a significant effect on a substantial number of small entities.
In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501
This action does not impose a new collection of information under the Paperwork Reduction Act of 1995. 44 U.S.C. 3501-3521.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, DEA proposes to further amend 21 CFR part 1308, which we proposed to amend on August 11, 2021 at 86 FR 43983, as follows:
21 U.S.C. 811, 812, 871(b), 956(b), unless otherwise noted.
(f) * * *
U.S. Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The U.S. Copyright Office is issuing a notice of proposed rulemaking regarding the procedures for libraries and archives to opt out of proceedings before the Copyright Claims Board (“CCB”) and the procedures for a party before the CCB with respect to a class action proceeding, under the Copyright Alternative in Small-Claims Enforcement Act of 2020. The Office invites public comments on this proposed rule.
Comments on the proposed rule must be made in writing and received by the U.S. Copyright Office no later than 11:59 p.m. EDT on October 4, 2021.
For reasons of government efficiency, the Copyright Office is using the
Kevin. R. Amer, Acting General Counsel and Associate Register of Copyrights, by email at
The Copyright Alternative in Small-Claims Enforcement (“CASE”) Act of 2020
The CASE Act directs the Register of Copyrights to “establish regulations allowing for a library or archives that does not wish to participate in proceedings before the Copyright Claims Board to preemptively opt out of such proceedings.”
For the purposes of this provision, the statute defines “library” and “archives” as “any library or archives, respectively, that qualifies for the limitations on exclusive rights under section 108 [of title 17].”
Under [section 108], a purely commercial enterprise could not establish a collection of copyrighted works, call itself a library or archive, and engage in for-profit reproduction and distribution of photocopies. Similarly, it would not be possible for a non-profit institution, by means of contractual arrangements with a commercial copying enterprise, to authorize the enterprise to carry out copying and distribution functions that would be exempt if conducted by the non-profit institution itself.
The House Report also notes that there may be factual questions as to whether libraries or archives “within industrial, profitmaking, or proprietary institutions” would qualify for the section 108 exemptions.
In the NOI, the Office requested input on issues related to this opt-out provision, including whether the Office should require proof or a certification that a library or archives qualifies for the opt-out provision; which entities, principals, or agents should be allowed to opt out on behalf of a library or archives; how the opt-out provision would apply to library or archives employees; and various transparency and functionality considerations related to publication of the opt-out list.
The NOI asked “whether a library or archive should be required to prove or certify its qualification for the limitations on exclusive rights under 17 U.S.C. 108, and thus for the blanket opt-out provisions, and how to address circumstances where a library or archives ceases qualifying.”
Others suggested that an entity that preemptively opts out of CCB proceedings should be required to submit a formal affidavit or declaration “certifying its limitations on exclusive rights under 17 U.S.C 108,”
AIPLA, AMI, and Copyright Alliance et al. proposed creating a Copyright Office or CCB procedure, separate from a CCB infringement proceeding, to review the qualifying status of a library or archives for the preemptive opt-out.
LCA did not support such a proceeding and suggested that, if a claimant wishes to bring a claim against a library or archives that it believes is ineligible for the preemptive opt out, “it can file a claim against the library [or archives] with the CCB, indicating that the library [or archives] does not meet the [statutory] requirements.”
While taking no position on any process for a library or archives to “claim status . . . for purposes of a blanket opt-out,” the Motion Picture Association (“MPA”), Recording Industry Association of America (“RIAA”), and Software and Information Industry Association (“SIIA”) asked that the Office make clear that “an entity's status as a library or archive for the purposes of opting out under CCB does not constitute a determination of that entity's status, and may not be cited as such, in any other context, including in any federal court litigation in which that entity is a party.”
The Office appreciates parties' comments on this issue and proposes that any library or archives that wishes to take advantage of the statutory preemptive opt-out option must submit a self-certification that it “qualifies for the limitations on exclusive rights under section 108.”
The Office will accept the facts stated in the opt-out submission unless they are implausible or conflict with sources of information that are known to the Office or the general public.
With respect to the requests to allow third-party challenges to an institution's eligibility for the preemptive opt-out, the Office does not believe it is necessary to establish a procedure for such objections that is separate from the CCB's adjudication of individual cases. Such a process would seem an inefficient use of CCB resources, as it could require the Board to resolve disputes over an institution's status before any claim involving that entity has been made. As LCA notes, a party seeking to bring a claim against a library or archives that it believes is improperly on the opt-out list may file the claim with the CCB and include the basis for that conclusion in its statement of material facts. If, during its review of the claim for compliance, the CCB determines that the claimant has alleged facts sufficient to support the conclusion that the entity is ineligible, and the claim is otherwise compliant, the claimant will be instructed to proceed with service on the respondent. The respondent may then include in its response any information to demonstrate that it is in fact eligible, or may simply opt out of that specific proceeding. This process is reflected in the proposed rule.
The NOI noted the “prevalence of libraries and archives being located within larger entities, including but not limited to colleges and universities or municipalities,” and asked for comments “addressing which entities, principals, or agents may opt out on behalf of a library or archive, as well as any associated certifications.”
The Copyright Alliance et al. suggested that “[w]here a [library or archives] is a part of a larger entity or municipality, such that the [library or archives] itself does not have standing to act as a Claimant or Counterclaimant on its own, only the larger entity or municipality should be allowed to request the blanket opt-out on behalf of the [library or archives].”
The Office generally agrees with LCA's suggestion that the authority to exercise the preemptive opt-out option should belong to any person with the authority to take legally binding actions
The NOI also asked for input “related to transparency and functionality considerations with respect to its publication of the list of libraries and archives that have opted out.”
Finally, the NOI asked parties to comment on whether the Office “should include a regulatory provision that specifies that this opt out extends to employees operating in the course of their employment.”
Several library representatives, including AALL, LCA, the University of Illinois Library, and the University of Michigan Library, advocated for regulatory language specifying that the preemptive opt-out extends to employees operating in the course of their employment.
In further support of this approach, LCA argued that Copyright Claims Attorneys, who are required to review new claims to ensure that they comply with the statute and regulations, would be able “to determine from the claim's statement of material facts whether the respondent is a library employee acting with the scope of her employment.”
The Copyright Alliance et al. opposed extending the libraries and archives opt-out provision to employees acting within the scope of their employment, arguing that “[w]hether an employee is operating within the course/scope of their employment is a question of fact that would need to be determined by the CCB.”
The Office appreciates libraries' and archives' concerns that excluding individual employees from the blanket opt-out could hamper the effectiveness of that option by allowing parties to assert claims against such individuals when claims against the institution are unavailable. Such a rule, however, seemingly appears inconsistent with principles of agency law and would require a broad interpretation of the statutory text. While it is generally true that an employer may be liable for the actions of employees taken within the scope of their employment,
Some commenters further requested that the Office promulgate a regulation expanding the statutory opt-out provision to a library's larger institution,
Commenters asked the Office to promulgate certain additional rules related to participation by libraries and archives. First, some commenters requested that the Office consider including regulations allowing a library or archives to revoke or rescind its preemptive opt-out election.
The Office generally agrees that a library's or archives' opt-out election should not be irreversible. Indeed, permitting such an institution to rescind an opt-out would help advance the statutory goal of encouraging participation in the CCB system. The proposed rule accordingly provides that a library or archives may rescind a preemptive opt-out election by providing written notification of such intent to the CCB. To avoid potential abuses and to limit the impact on CCB resources, the proposed rule provides that an institution may make no more than one such rescission per calendar year.
In addition, two commenters proposed rules to address errors and abuses involving the opt-out process. LCA urged the Office to establish procedures to address circumstances where a Copyright Claims Attorney erroneously allows a claim to proceed against a library.
A CCB proceeding does not have any effect on a class action proceeding in federal district court.
Two parties provided comments on this issue. The Copyright Alliance et al. suggested that “[i]f a party receives notice of a class action and wishes to dismiss the case before the CCB, the regulations should require that party to notify the CCB and the other parties to the case within 10 business days following receipt of the class action notice.”
The Office has proposed a fourteen-day period for a party to either opt out of the class action or to seek dismissal of the CCB proceeding. If a party chooses to opt out of the class action, he or she must file written notice of that intent with the CCB within fourteen days after filing such notice with the court. The proposed rule authorizes the Board to extend these time periods for good cause.
Copyright, Claims.
For the reasons set forth in the preamble, the Copyright Office proposes to amend Chapter II, Subchapter B, of title 37 Code of Federal Regulations to read as follows:
17 U.S.C. 702, 1510.
(a)
(2) The submission described in paragraph (a)(1) of this section shall list the name and physical address of each
(3) The Copyright Claims Board will accept the facts stated in the submission described in paragraphs (a)(1) and (2) of this section, unless they are implausible or conflict with sources of information that are known to the Copyright Claims Board or the general public.
(4) If a federal court determines that an entity described in paragraph (a)(1) of this section does not qualify for the limitations on exclusive rights under section 108 of title 17, that entity must inform the Copyright Claims Board of that determination and submit a copy of the relevant order or opinion, if any, within fourteen days after the determination is issued.
(5) A library or archives may rescind its preemptive opt-out election under this section, such that it may participate in Copyright Claims Board proceedings, by providing written notification to the Copyright Claims Board in accordance with such instructions as are provided on the Copyright Claims Board website. A library or archives may submit no more than one such rescission notification per calendar year.
(6) The notification described in paragraph (a)(1) of this section shall be submitted to the Copyright Claims Board in accordance with such instructions as are provided on the Copyright Claims Board website.
(b)
(2) A party seeking to assert a claim under this section against a library or archives that it believes is improperly included on the public list described in paragraph (b)(1) of this section may file the claim with the Copyright Claims Board pursuant to 17 U.S.C. 1506(e) and applicable regulations. The claimant must include in its statement of material facts allegations sufficient to support that belief. If the Copyright Claims Board determines, as part of its review of the claim pursuant to 17 U.S.C. 1506(f), that the claimant has alleged facts sufficient to support the conclusion that the library or archives is ineligible for the preemptive opt-out, and the claim is otherwise complaint, the claimant will be instructed to proceed with service of the claim. The respondent may include in its response any factual statements in support of its eligibility.
(3) Any determination made under paragraph (b)(1) of this section shall constitute final agency action under 5 U.S.C. 704.
(c)
(d)
(a)
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Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the Eagle River, Alaska (AK) limited maintenance plan (LMP) submitted on November 10, 2020, by the Alaska Department of Environmental Conservation (ADEC or “the State”). This plan addresses the second 10-year maintenance period after redesignation for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM
Comments must be received on or before October 4, 2021.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2020-0648, at
Christi Duboiski, EPA Region 10, 1200 Sixth Avenue—Suite 155, Seattle, WA 98101, at (360) 753-9081, or
Throughout this document, wherever “we”, “us” or “our” is used, it means the EPA.
On August 7, 1987, the EPA designated the Community of Eagle River (Eagle River) as a PM
On September 29, 2010, the State requested that the EPA redesignate the Eagle River NAA to attainment for PM
Section 175A of the CAA sets forth the elements of a maintenance plan. Under section 175A, a state must submit a plan to demonstrate continued attainment of the applicable NAAQS for at least 10 years after an area is redesignated to attainment. Eight years into the first maintenance period, the state must submit a second maintenance plan demonstrating that the area will continue to attain for the following 10-year period. On September 4, 1992, the EPA issued guidance on the content of a maintenance plan (Memorandum from John Calcagni, Director, Air Quality Management Division, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment,” (Calcagni Memo)).
On August 9, 2001, the EPA issued guidance on streamlined maintenance plan provisions for certain moderate PM
To qualify for the LMP option, a State must demonstrate that the area meets the following criteria. First, the area should have attained the PM
The transportation conformity rule and the general conformity rule (set forth in the Code of Federal Regulations (CFR) at 40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area.
While the EPA's LMP option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without conforming to an emissions budget. Under the LMP option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the PM
While areas with maintenance plans approved under the LMP option are not subject to the budget test (see 40 CFR 93.109(e)), the areas remain subject to the other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the state must document and ensure that:
a. Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113;
b. transportation plans and projects comply with the fiscal constraint element as set forth in 40 CFR 93.108;
c. the MPO's interagency consultation procedures meet the applicable requirements of 40 CFR 93.105;
d. conformity of transportation plans is determined no less frequently than every four years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;
e. the latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;
f. projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and
g. project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.
If the EPA approves the second 10-year LMP, the Eagle River maintenance area will continue to be exempt from performing a regional emissions analysis but must meet project-level conformity analyses as well as the transportation conformity criteria described above.
As discussed in Section II.A. of this preamble, the LMP Option Memo outlines the requirements for an area to qualify for an LMP. First, the area should be attaining the PM
Second, the 24-hour average design value for the most recent five years of monitoring data must be at or below the critical design value of 98 µg/m
Third, the area must meet the motor vehicle regional emissions analysis test described in the LMP Option Memo. The State submitted an analysis showing that growth in on-road mobile PM
As described above, the Eagle River PM
Pursuant to the LMP Option Memo, the State's submission should include an emissions inventory, which can be used to demonstrate attainment of the relevant NAAQS. The inventory should represent emissions during the same five-year period associated with air quality data used to determine whether the area meets the applicability requirements of the LMP option. The State should review its inventory every three years to ensure emissions growth is incorporated in the inventory if necessary.
Alaska's Eagle River PM
Unlike the first 10-year LMP, where five sources of PM
In accordance with the LMP Option Memo, all controls relied on to demonstrate attainment and continued maintenance will remain in place (
The submittal meets the EPA guidance for purposes of an attainment emissions inventory, and the emissions inventory data supports the State's conclusions that the existing control measures will continue to protect and maintain the PM
Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accordance with 40 CFR part 58 to verify the attainment status of the area. From 1985 until present, Alaska has operated a PM
The State commits to continued operation of at least one EPA-approved PM
The level of the PM
The CAA section 175A states that a maintenance plan must include contingency provisions, as necessary, to ensure prompt correction of any violation of the NAAQS, which may occur after redesignation of the area to attainment. As explained in the LMP Option Memo and the Calcagni Memo, these contingency provisions are an enforceable part of the federally approved SIP. The maintenance plan should clearly identify the events that would “trigger” the adoption and implementation of a contingency provision, the contingency provision(s) that would be adopted and implemented, and the schedule indicating the time frame by which the State would adopt and implement the provision(s). The LMP Option Memo and the Calcagni Memo state that the EPA will determine the adequacy of a contingency plan on a case-by-case basis. At a minimum, it must require that the state implement all measures contained in the CAA part D nonattainment plan for the area prior to redesignation.
In the Eagle River PM
The EPA proposes to determine that the contingency provisions submitted in the Eagle River PM
The EPA is proposing to approve the second 10-year PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed 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 proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735,
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not involve technical standards; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed 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).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is proposing to approve revisions to the State of Kansas's Underground Storage Tank (UST) program submitted by the Kansas Department of Health and Environment (KDHE). This action is based on the EPA's determination that these revisions satisfy all requirements needed for program approval. This action also proposes to codify EPA's approval of Kansas's State program and incorporate by reference those provisions of the State regulations that we have determined meet the requirements for approval. The provisions will be subject to EPA's inspection and enforcement authorities under sections 9005 and 9006 of RCRA Subtitle I and other applicable statutory and regulatory provisions.
Comments on this proposed rule must be received on or before October 4, 2021.
Submit comments, identified by EPA-R07-UST-2021-0345, by one of the following methods:
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2.
Cassandra Mance, Tanks, Toxics, and Pesticides Branch, Land, Chemical, and Redevelopment Division, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219; (913) 551-7355;
EPA has explained the reasons for this action in the preamble to the direct final rule. For additional information, see the direct final rule published in the “Rules and Regulations” section of this
This proposed rule is issued under the authority of sections 2002(a), 7004(b), and 9004 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations related to Amendment 1, and Addendum 1 to Amendment 1, to the Interstate Fishery Management Plan (FMP) for Atlantic Migratory Group Cobia (Interstate FMP), as prepared and submitted by the Atlantic States Marine Fisheries Commission (ASMFC). As described in Amendment 1 and Addendum 1, this proposed rule would modify the commercial quota and the process for a commercial quota closure for Atlantic migratory group cobia (Atlantic cobia) in Federal waters. The purpose of this proposed action is to increase the commercial quota as a result of the most recent stock assessment and to allow the ASMFC to monitor commercial landings for any needed commercial in-season closure while ensuring the long-term sustainability of the Atlantic cobia stock.
Written comments must be received on or before October 4, 2021.
You may submit comments on the proposed rule, identified by “NOAA-NMFS-2021-0054,” by either of the following methods:
•
•
Electronic copies of Amendment 1 and Addendum 1 may be obtained from the ASMFC website at
Frank Helies, telephone: 727-824-5305, or email:
The fishery for Atlantic cobia in Federal waters is managed under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) by regulations at 50 CFR part 697. Separate migratory groups of cobia are managed in the Gulf of Mexico and Atlantic. Atlantic cobia is managed from Georgia through New York. The southern management boundary for Atlantic cobia is a line that extends due east of the Florida and Georgia state border at 30°42′45.6″ N latitude. The northern management boundary for Atlantic cobia is the jurisdictional boundary between the Mid-Atlantic and New England Fishery Management Councils, as specified in 50 CFR 600.105(a).
The final rule to implement Amendment 31 to the FMP for Coastal Migratory Pelagic (CMP) Resources of the Gulf of Mexico and Atlantic Region (CMP FMP) and Amendment 1 to the Interstate FMP removed Atlantic cobia from Federal management under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and transitioned the management of Atlantic cobia in Federal waters to the Atlantic Coastal Act (84 FR 4733, February 19, 2019). All weights described in this rule are in round and eviscerated weight, combined.
The ASMFC approved Amendment 1 to the Interstate FMP in 2019 and Addendum 1 to Amendment 1 in 2020. Amendment 1 and Addendum 1 provide for an increase in the commercial quota and a revision to the process for a commercial in-season closure. This proposed rule would serve to implement certain measures in Federal waters contained within Amendment 1 and Addendum 1.
In 2020, a new Southeast Data, Assessment, and Review (SEDAR) assessment was completed for Atlantic cobia (SEDAR 58). SEDAR 58 indicated that Atlantic cobia was not overfished nor undergoing overfishing, and that the allowable harvest could be increased based on updated commercial and recreational catch estimates. Based on the results of the SEDAR 58 and new stock projections from February 2020, in October of 2020, the ASMFC approved an increase to the Atlantic cobia annual total harvest quota of 80,112 fish for the 2020-2022 fishing seasons to be implemented in Federal waters through this proposed rule. Through Amendment 1 and Addendum 1, the ASMFC also adjusted the commercial and recreational allocation percentages and changed the methodology used to close the commercial sector when the quota is reached.
Currently, the total Atlantic cobia quota is allocated 8 percent to commercial harvest and 92 percent to recreational harvest. The ASMFC changed these sector allocations to 4 percent to the commercial sector and 96 percent to the recreational sector to account for changes in the recreational catch estimates from the Marine Recreational Information Program Fishing Effort Survey. When defining these allocations in terms of numbers of fish, the updated allocations would result in a commercial quota of 3,204 fish and a recreational quota of 76,908 fish. As described in Amendment 1 and Addendum 1, using an average commercial weight of 22.82 lb (10.35 kg), this is equivalent to a commercial quota of 73,116 lb (33,165 kg) in round and gutted weight, combined. In addition, the ASMFC would closely monitor commercial landings to ensure the commercial quota is not exceeded.
This proposed rule would modify the commercial quota and the process for closing the commercial sector in Federal waters when the quota is reached.
The current Atlantic cobia commercial quota of 50,000 lb (22,680 kg) was established through the final rule to implement Amendment 1 to the Interstate FMP (84 FR 4733, February 19, 2019). As a result of SEDAR 58, this proposed rule would increase the commercial quota to 73,116 lb (33,165 kg). The ASMFC is responsible for monitoring of commercial landings during the fishing year.
The current process requires an in-season closure in Federal waters during the fishing year for the commercial sector when the quota is reached or projected to be reached. When the NMFS Scientific Research Director estimates that the sum of commercial landings (cobia that are sold) reaches or is projected to reach the commercial quota, then NMFS will prohibit the sale and purchase of cobia for the remainder of that fishing year (a commercial closure). For example, in 2020, NMFS projected that commercial landings would reach the commercial quota on November 6, and therefore, NMFS closed the commercial sector on November 6, 2020, through December 31, 2020 (85 FR 70085; November 4, 2020).
This proposed rule would retain the possibility of an in-season closure if commercial landings reach the quota. This proposed rule also would change the closure language in the current regulations regarding in-season quota monitoring so that commercial landings would be monitored by the ASMFC and not by NMFS. Currently, NMFS monitors the commercial quota and closes the commercial sector when the quota is met or projected to be met. The new process would transfer quota monitoring responsibility to the ASMFC. Because Atlantic cobia are primarily landed in state waters, the ASMFC determined that they are better suited to monitor cobia landings and ensure the risk of early closures is minimized. During the fishing year, if the ASMFC estimates that the sum of commercial landings (cobia that are sold), reaches or is projected to reach the commercial quota, then the ASMFC would notify NMFS of the need for a commercial closure of the exclusive economic zone (EEZ) and NMFS would close the commercial sector. During any such closure, the harvest, sale, trade, barter, or purchase of Atlantic cobia would be prohibited for the remainder of that fishing year. When considering this proposed increase to the commercial quota, and when compared to cobia landings in previous fishing years, NMFS estimates that a commercial in-season closure is still possible as a result of the commercial quota being reached, but expects that any such closure would occur later in the fishing year than under the current commercial quota.
NMFS may consider additional commercial and recreational regulatory changes to be implemented through rulemaking for Atlantic cobia as described in Amendment 1 and Addendum 1 in future rulemaking.
The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Interstate FMP, the Atlantic Coastal Act, the applicable provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce 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. The factual basis for this certification is described below.
A description of this proposed rule, why it is being considered, and the purposes of this proposed rule are contained in the preamble and in the
This proposed rule directly affects commercial fishing businesses that sell Atlantic cobia harvested within the EEZ off Georgia to New York. Atlantic cobia is harvested mostly in state waters and is primarily a bycatch, not targeted, commercial species in the Mid-Atlantic and South Atlantic. During the past 6 years (2015-2020), 17 percent of total Atlantic cobia commercial landings were of fish taken from the EEZ.
In the South Atlantic, from 2015 through 2019, there were, on average, 82 federally permitted commercial vessels with reported landings of Atlantic cobia from the South Atlantic (excluding Florida, which is outside of the Atlantic cobia stock boundary). These vessels had average annual dockside revenue from landings of Atlantic cobia of $37,663 (2019 dollars). In the Mid-Atlantic, from 2015 through 2019, there were, on average, 31 federally permitted commercial vessels with reported landings of Atlantic cobia and, on average, each of these vessels earned approximately $2,100 (2019 dollars) per year from the sale of Atlantic cobia.
All of the businesses that operate the above 113 federally permitted vessels are expected to operate primarily in the commercial fishing industry (NAICS code 11411). For Regulatory Flexibility Act purposes, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (50 CFR 200.2). A business primarily involved in the commercial fishing industry is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $11 million for all of its affiliated operations worldwide. The maximum annual dockside revenue that any of the permitted vessels had during the 5-year period was approximately $0.3 million (2019 dollars). Therefore, NMFS concludes that all of the above 113 permitted vessels represent a small commercial fishing business.
For-hire fishing captains and crew are allowed to sell Atlantic cobia harvested from the EEZ under the recreational possession limit when the commercial season is open; however, the respective Atlantic states require individuals to have a commercial fishing license in the state where the cobia is sold, and typically the vessels used to harvest those cobia have a Federal charter/headboat coastal migratory pelagics permit. From 2015 through 2019 less than 5 of the 1,712 currently permitted for-hire vessels sold Atlantic cobia, and the average revenue from those sales was approximately $11 (2019 dollars) annually per vessel.
A business that is primarily in the for-hire fishing industry (NAICS code 487210) is a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates) and its combined annual receipts that are no more than $8.0 million for all of its affiliated operations worldwide. Average annual gross revenue of federally permitted charter vessels and headboats in the South Atlantic is $125,261 per charter vessel and $271,835 per headboat in 2019 dollars. Hence, NMFS expects the less than five for-hire fishing vessels that would be annually affected by the proposed rule are small businesses.
This proposed rule would increase the commercial quota of Atlantic cobia from 50,000 lb (22,680 kg) to 73,116 lb (33,165 kg). This rule would also revise the decision criteria used to close Federal waters to commercial fishing for Atlantic cobia. The Federal commercial season would close if the sum of the cobia landings that are sold, as estimated by the ASMFC, reach or are projected to reach the commercial quota, and the ASMFC notifies NMFS of
The increase in the commercial quota from 50,000 lb (22,680 kg) to 73,116 lb (33,165 kg) would allow for an additional 23,116 lb (10,485 kg) of cobia to be sold by small commercial fishing businesses. As stated previously, an average of 17 percent of annual commercial landings of cobia are from the EEZ, and 17 percent of the 23,116-lb (10,485 kg) increase translates to an additional 3,930 lb (1,782 kg) of Atlantic cobia that could be harvested from the EEZ annually.
The average dockside price of Atlantic cobia has increased in the past 4 years, and especially since 2019. Using the average dockside price from 2019 through 2020, an additional 3,930 lb (1,782 kg) of cobia would translate to additional revenue of $16,427 (2019 dollars), and if spread evenly across the average 113 small commercial fishing businesses that report harvesting Atlantic cobia annually, each of those small businesses would benefit with an additional $145 annually (2019 dollars) in revenue. For the 113 commercial fishing vessels and small businesses that operate them, that additional revenue represents up to 0.13 percent of their average annual revenue from all landings. If the less than five small for-hire fishing businesses that, on average, annually sell bag-limit quantities of cobia harvested from the EEZ were to double their revenues from cobia sales, those increases would represent 0.01 percent or less of their average annual revenue.
Based on the analysis described above, NMFS concludes that this rule would not have a significant economic impact on a substantial number of small businesses. Therefore, an initial regulatory flexibility analysis is not required and none has been prepared.
This proposed rule contains no information collection requirements under the Paper Reduction Act of 1995.
Atlantic, Cobia, Fisheries, Fishing, South Atlantic.
For the reasons set out in the preamble, 50 CFR part 697 is proposed to be amended as follows:
16 U.S.C. 5101
(f) * * *
(1)
Administrative Office of the United States Courts.
Interim regulations; request for comments.
The Administrative Office of the United States Courts is promulgating interim regulations for the administration of payments to trustees that have rendered services in cases filed under or converted to chapter 7 of title 11, United States Code, from January 12, 2021, through September 30, 2026. These regulations govern trustees' entitlement to payment under the Bankruptcy Administration Improvement Act of 2020 and processes for requesting such payment from the bankruptcy court in which the case was filed.
The text of the proposed interim regulations were posted on August 30, 2021, on
All written comments and suggestions with respect to the proposed interim regulations may be submitted on or after the opening of the period for public comment on August 30, 2021, but no later than September 17, 2021. Written comments must be submitted electronically, following the instructions provided on the website.
You may send comments by the following method:
•
Daniel Isaacs-Smith, Senior Attorney, Administrative Office of the United States Courts, Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, Room 4-272, Washington, DC 20544, Telephone (202) 502-1800,
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the importation of live dogs for resale from regions where African swine fever exists or is reasonably believed to exist.
We will consider all comments that we receive on or before November 1, 2021.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the activities within this information collection request, contact Dr. MaryKate Anderson, Staff Veterinary Medical Officer, Live Animal Imports and Exports, Strategy and Policy, VS, APHIS, 4700 River Road, Unit 39, Riverdale, MD 20737; phone: (301) 851-3364;
Within APHIS, Veterinary Services is tasked with, among other things, preventing foreign animal disease outbreaks in the United States, and monitoring, controlling, and eliminating a disease outbreak should one occur. In the past several years, there have been significant worldwide outbreaks of African swine fever (ASF). ASF is a
APHIS has determined that dogs imported from ASF-affected countries for resale purposes, along with their bedding, represent a possible pathway for the introduction of disease. To block this pathway, APHIS issued a Federal Order (DA-2021-01)
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
New information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request approval of a new information collection associated with the payment of indemnity claims related to African swine fever.
We will consider all comments that we receive on or before November 1, 2021.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the activities within this information collection request, contact Ms. Lecresha King, Program Analyst, National Preparedness and Incident Coordination, Strategy and Policy, VS, APHIS, 920 Main Campus Drive, Raleigh, NC 27606; (515) 380-5535. For more detailed information on the information collection reporting process, contact Mr. Joseph Moxey, APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2483;
Within APHIS, part of the mission of Veterinary Services is preventing foreign animal disease outbreaks in the United States, and monitoring, controlling, and eliminating a disease outbreak should one occur. In the past several years, there have been significant worldwide outbreaks of African swine fever (ASF). ASF is a highly contagious and deadly viral disease affecting both domestic and feral (wild) pigs. The disease has not been detected in the United States; however, APHIS is committed to working with State and industry partners to keep the virus out of the country.
As part of APHIS' mission regarding ASF, there are information collection activities related to an outbreak such as appraisal and indemnity requests and appraisal and indemnity claims, worksheets for calculating proceeds from animals or materials sold for slaughter, domestic herd plans and financial plans, and an ASF response epidemiology questionnaire.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Foreign Agricultural Service, USDA.
Notice.
This notice announces the transfer of amounts for certain dairy articles from the historical license category (Appendix 1) to the lottery (nonhistorical) license category (Appendix 2) pursuant to the Dairy Tariff-Rate Quota Import Licensing regulations for the 2021 quota year. In addition, adjustments have been made to the Appendices to reflect changes to United Kingdom (UK) and European Union (EU) country allocations for certain tariff rate quotas (TRQs) and other changes to the Harmonized Tariff Schedule of the United States (HTSUS) made by the U.S. Trade Representative in response to the withdrawal of the UK from the EU and the accession of Croatia to the EU, which will go into effect for the 2022 quota year. Appendices 1 and 2 for the EU-27 for Additional U.S. Note 16 to Chapter 4 have also been adjusted to account for a clerical error in last year's Appendices 1 and 2 published amounts. This correction does not increase the overall quantity allotted to the EU-27 and the UK.
September 2, 2021.
Abdelsalam El-Farra, (202) 720-9439;
The Foreign Agricultural Service, under a delegation of authority from the Under Secretary for Trade and Foreign Agricultural Affairs, administers the Dairy Tariff-Rate Quota Import Licensing regulation codified at 7 CFR 6.20 through 6.36 that provides for the issuance of licenses to import certain dairy articles under TRQs as set forth in the HTSUS. These dairy articles may only be entered into the United States at the low-tier tariff by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The Imports Program, Foreign Agricultural Service, U.S. Department of Agriculture, issues these licenses and, in conjunction with U.S. Customs and Border Protection, U.S. Department of Homeland Security, monitors their use.
The regulation at 7 CFR 6.34(a) states that whenever a historical license (Appendix 1) is permanently surrendered, revoked by the Licensing Authority, or not issued to an applicant pursuant to the provisions of § 6.23, then the amount of such license will be transferred to Appendix 2. Section 6.34(b) provides that the cumulative annual transfers will be published by notice in the
In addition, the Appendices have been revised to reflect modified EU and UK country allocations under certain TRQs in Chapter 4 of the HTSUS made by the U.S. Trade Representative in response to the withdrawal of the UK from the EU and to acknowledge the accession of Croatia to the EU. On July 6, 2021, the U.S. Trade Representative announced,
1. Additional U.S. Note 2 to Chapter 4 of the HTSUS is modified by: (a) Inserting “Croatia,” into the list of countries in alphabetical order; and (b) deleting “the Slovak Republic, Sweden or the United Kingdom” and inserting “the Slovak Republic or Sweden” in lieu thereof.
2. With respect to the published in-quota quantity of 96,161 kilograms allocated to the EU 27 for the TRQ in Additional U.S. Note 6 to Chapter 4 of the HTSUS, the UK shall have access to a quantity of not less than 14,062 kilograms and the EU 27 shall have access to a quantity of not less than 82,099 kilograms.
3. Additional U.S. Note 16 to Chapter 4 of the HTSUS is modified by: (a) Inserting “United Kingdom” into the list of countries in alphabetical order; (b) inserting a quota quantity of “2,213,374” in the Quantity (kg) column for the United Kingdom; (c) deleting the quantity “27,846,224” in the Quantity (kg) column for the EU27; and (d)
4. Additional U.S. Note 17 to Chapter 4 of the HTSUS is modified by: (a) Inserting “United Kingdom” into the list of countries in alphabetical order; (b) inserting a quota quantity of “23,617”' in the Quantity (kg) column for the United Kingdom; (c) deleting the quantity “2,829,000” in the Quantity (kg) column for the EU27; and (d) inserting “2,805,383” in the Quantity (kg) column for the EU27 in lieu thereof.
5. Additional U.S. Note 18 to Chapter 4 of the HTSUS is modified by: (a) Inserting “United Kingdom” into the list of countries in alphabetical order; (b) inserting a quota quantity of “895,948” in the Quantity (kg) column for the United Kingdom; (c) deleting the quantity “1,31,000” in the Quantity (kg) column for the EU27; and (d) inserting “417,052” in the Quantity (kg) column for the EU27 in lieu thereof.
For U.S. TRQs under Additional U.S. Notes 19 to 23 and 25 to Chapter 4, the UK otherwise will be eligible to export under the in-quota quantities allocated to “other countries or areas.”
Entities that currently hold EU-27 historical licenses for TRQs under Additional U.S. Notes 6, 16, 17, and 18 that wish to retain their EU-27 historical licenses and/or obtain UK historical licenses under these TRQs for the 2022 TRQ year and that otherwise qualify for carry over of such EU-27 historical licenses will be instructed to apply to carry over the EU-27 historical license and/or to obtain a UK historical license. The quantities of the new EU-27 license and/or UK license for the 2022 TRQ year that will be issued under these TRQs will be determined by allocating the original EU-27 license quantity between the two new licenses applying the same ratio that USTR used to split the applicable overall TRQ. Any discrepancies in quantities at the individual license level are due to rounding.
Notice of this action and specific instructions on how to apply for the 2022 TRQ year for EU-27 and UK historical licenses under these TRQs are being provided to all current holders of EU-27 historical licenses for TRQs under Additional U.S. Notes 6, 16, 17, and 18. The notice and instructions are also posted on USDA Foreign Agricultural Service's Dairy Import Licensing Program's website at:
Finally, with regard to Additional U.S. Note 16, Cheese and Substitutes for Cheese, the quantity in Appendix 1 for EU-27 historical licenses includes an additional 21,768 kg and the quantity for EU-27 lottery licenses in Appendix 2 includes a reduction of 21,768 kg. This corrects a clerical error in the previously published quantities for Appendices 1 and 2. The correction does not change the overall quantity allotted to the EU-27 or the UK under Additional U.S. Note 16.
Foreign Agricultural Service, USDA.
Notice.
This notice announces a fee of $324 to be charged for the 2022 tariff-rate quota (TRQ) year for each license issued to a person or firm by the Department of Agriculture authorizing the importation of certain dairy articles, which are subject to tariff-rate quotas set forth in the Harmonized Tariff Schedule (HTS) of the United States.
September 2, 2021.
Abdelsalam El-Farra, Dairy Import Licensing Program, Foreign Agricultural Service, U.S. Department of Agriculture, at (202) 720-9439; or by email at:
The Dairy Tariff-Rate Quota Import Licensing Regulation promulgated by the Department of Agriculture and codified at 7 CFR 6.20 through 6.36 provides for the issuance of licenses to import certain dairy articles that are subject to TRQs set forth in the HTS. Those dairy articles may only be entered into the United States at the in-quota TRQ tariff-rates by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.
Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The use of such licenses is monitored by the Import Program within the Foreign Agricultural Service, U.S. Department of Agriculture, and U.S. Customs and Border Protection, U.S. Department of Homeland Security.
The regulation at 7 CFR 6.33(a) provides that a fee will be charged for each license issued to a person or firm by the Licensing Authority to defray the Department of Agriculture's costs of administering the licensing system under this regulation.
The regulation at 7 CFR 6.33(a) also provides that the Licensing Authority will announce the annual fee for each license and that such fee will be set out in a notice to be published in the
The total cost to the Department of Agriculture of administering the licensing system for 2022 has been estimated to be $728,600.00 and the estimated number of licenses expected to be issued is 2,250. Of the total cost, $518,600.00 represents staff and supervisory costs directly related to administering the licensing system, and $210,000.00 represents other miscellaneous costs, including travel, publications, forms, and Automatic Data Processing (ADP) system support.
Accordingly, notice is hereby given that the fee for each license issued to a person or firm for the 2022 calendar year, in accordance with 7 CFR 6.33, will be $324 per license.
Forest Service, Agriculture (USDA).
Notice of opportunity to object to the revised Land Management Plan for the Cibola National Forest.
The Forest Service is revising the Cibola National Forest's Land Management Plan (Forest Plan). The Forest Service has prepared a Final Environmental Impact Statement (FEIS) for its revised Forest Plan and a draft Record of Decision (ROD). This notice is to inform the public that the Cibola National Forest is initiating a 60-day period where individuals or entities with specific concerns about the Cibola National Forest's revised Forest Plan and the associated FEIS may file objections for Forest Service review prior to the approval of the revised Forest Plan. This is also an opportunity to object to the Regional Forester's list of species of conservation concern for the Cibola National Forest.
The publication date of the legal notice in the Cibola National Forest's newspaper of record,
The Cibola National Forest's revised Forest Plan, FEIS, draft ROD, species of conservation concern list, and other supporting information will be available for review at:
Objections must be submitted to the Objection Reviewing Officer by one of the following methods:
• Via regular mail, carrier, or hand delivery to the following address: USDA-Forest Service Southwest Region, ATTN: Objection Reviewing Officer, 333 Broadway Blvd. SE, Albuquerque, NM 87102 (Fax: 505-842-3173). Office hours for submitting a hand-delivered objection are 8:00 a.m. to 4:30 p.m. Monday through Friday, excluding Federal holidays.
• Electronically at
• Electronically to the Objection Reviewing Officer via the CARA objection web form:
• By Fax: 505-842-3173. Faxes must be addressed to “Objection Reviewing Officer.” The fax coversheet should include a subject line with “Cibola National Forest Plan Revision Objection” or “Cibola Species of Conservation Concern” and specify the number of pages being submitted.
Forest Supervisor, Steve Hattenbach at (505) 346-3804 or
Individuals who use telecommunication devices for the hearing-impaired (TDD) may call the Federal Information Relay Service
The decision to approve the revised Forest Plan and the Regional Forester's list of species of conservation concern for the Cibola National Forest will be subject to the objection process identified in 36 CFR part 219 Subpart B (219.50 to 219.62).
Objections must be submitted to the Reviewing Officer at the address shown in the
(1) The objector's name and address along with a telephone number or email address if available; in cases where no identifiable name is attached to an objection, the Forest Service will attempt to verify the identity of the objector to confirm objection eligibility;
(2) Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the objection);
(3) Identification of the lead objector when multiple names are listed on an objection. The Forest Service will communicate to all parties to an objection through the lead objector. Verification of the identity of the lead objector must also be provided if requested;
(4) The name of the plan, plan amendment, or plan revision being objected to, and the name and title of the responsible official;
(5) A statement of the issues and/or parts of the plan, plan amendment, or plan revision to which the objection applies;
(6) A concise statement explaining the objection and suggesting how the draft plan decision may be improved. If the objector believes that the plan, plan amendment, or plan revision is inconsistent with law, regulation, or policy, an explanation should be included;
(7) A statement that demonstrates the link between the objector's prior substantive formal comments and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment; and
(8) All documents referenced in the objection (a bibliography is not sufficient), except the following need not be provided:
a. All or any part of a Federal law or regulation,
b. Forest Service Directive System documents and land management plans or other published Forest Service documents,
c. Documents referenced by the Forest Service in the planning documentation related to the proposal subject to objection, and
d. Formal comments previously provided to the Forest Service by the objector during the proposed plan, plan amendment, or plan revision comment period.
It is the responsibility of the objector to ensure that the reviewing officer receives the objection in a timely manner. The regulations prohibit extending the length of the objection filing period (36 CFR 219.56(d)).
The responsible official who will approve the ROD and the revised Forest Plan for the Cibola National Forest is Steve Hattenbach, Forest Supervisor, Cibola National Forest, Cibola National Forest Supervisor's Office, 2113 Osuna Road NE, Albuquerque NM 87113, and Phone: (505) 346-3804. The responsible official for the list of species of conservation concern is Michiko Martin, Regional Forester, USDA Forest Service Southwestern Region, 333 Broadway Blvd. SE, Albuquerque, NM 87102.
The Regional Forester is the reviewing officer for the revised Forest Plan since the Forest Supervisor is the responsible official (36 CFR 219.56(e)(2)). The decision to approve the species of conservation concern list will be subject to a separate objection process. The Chief of the Forest Service is the reviewing officer for species of conservation concern identification since the Regional Forester is the responsible official (36 CFR 219.56(e)(2)).
Forest Service, Agriculture (USDA).
Notice of opportunity to object to the revised Land Management Plan for the Santa Fe National Forest.
The Forest Service is revising the Santa Fe National Forest's Land Management Plan (Forest Plan). The Forest Service has prepared a Final Environmental Impact Statement (FEIS) for its revised Forest Plan and a draft Record of Decision (ROD). This notice is to inform the public that the Santa Fe National Forest is initiating a 60-day period where individuals or entities with specific concerns about the Santa Fe National Forest's revised Forest Plan and the associated FEIS may file objections for Forest Service review prior to the approval of the revised Forest Plan. This is also an opportunity to object to the Regional Forester's list of species of conservation concern for the Santa Fe National Forest.
The publication date of the legal notice in the Santa Fe National Forest's newspaper of record,
The Santa Fe National Forest's revised Forest Plan, FEIS, draft ROD, species of conservation concern list, and other supporting information will be available for review at:
Objections must be submitted to the Objection Reviewing Officer by one of the following methods:
• Via regular mail, carrier, or hand delivery to the following address: USDA-Forest Service Southwest Region, ATTN: Objection Reviewing Officer, 333 Broadway Blvd. SE, Albuquerque, NM 87102 (Fax: 505-842-3173). Office hours for submitting a hand-delivered objection are 8:00 a.m. to 4:30 p.m. Monday through Friday, excluding Federal holidays.
• Electronically at
• Electronically to the Objection Reviewing Officer via the CARA
• By Fax: 505-842-3173. Faxes must be addressed to “Objection Reviewing Officer.” The fax coversheet should include a subject line with “Santa Fe National Forest Plan Revision Objection” or “Santa Fe Species of Conservation Concern” and specify the number of pages being submitted.
Strategic Planning and Engagement Staff Officer, Jennifer Cramer at (505) 438-5442 or
Individuals who use telecommunication devices for the hearing-impaired (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Daylight Time, Monday through Friday.
The decision to approve the revised Forest Plan and the Regional Forester's list of species of conservation concern for the Santa Fe National Forest will be subject to the objection process identified in 36 CFR part 219 Subpart B (219.50 to 219.62).
Objections must be submitted to the Objection Reviewing Officer at the address shown in the
(1) The objector's name and address along with a telephone number or email address if available. In cases where no identifiable name is attached to an objection, the Forest Service will attempt to verify the identity of the objector to confirm objection eligibility;
(2) Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the objection);
(3) Identification of the lead objector, when multiple names are listed on an objection. The Forest Service will communicate to all parties to an objection through the lead objector. Verification of the identity of the lead objector must also be provided if requested;
(4) The name of the plan, plan amendment, or plan revision being objected to, and the name and title of the responsible official;
(5) A statement of the issues and/or parts of the plan, plan amendment, or plan revision to which the objection applies;
(6) A concise statement explaining the objection and suggesting how the draft plan decision may be improved. If the objector believes that the plan, plan amendment, or plan revision is inconsistent with law, regulation, or policy, an explanation should be included;
(7) A statement that demonstrates the link between the objector's prior substantive formal comments and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment; and
(8) All documents referenced in the objection (a bibliography is not sufficient), except the following need not be provided:
a. All or any part of a Federal law or regulation,
b. Forest Service Directive System documents and land management plans or other published Forest Service documents,
c. Documents referenced by the Forest Service in the planning documentation related to the proposal subject to objection, and
d. Formal comments previously provided to the Forest Service by the objector during the proposed plan, plan amendment, or plan revision comment period.
It is the responsibility of the objector to ensure that the Objection Reviewing Officer receives the objection in a timely manner. The regulations prohibit extending the length of the objection filing period (36 CFR 219.56(d)).
The responsible official who will approve the ROD and the revised Forest Plan for the Santa Fe National Forest is Debbie Cress, Forest Supervisor, Santa Fe National Forest, Santa Fe National Forest Supervisor's Office, 11 Forest Lane, Santa Fe NM 87508, and Phone: (505) 438-5310. The responsible official for the list of species of conservation concern is Michiko Martin, Regional Forester, USDA Forest Service Southwestern Region, 333 Broadway Blvd. SE, Albuquerque NM 87102.
The Regional Forester is the reviewing officer for the revised Forest Plan since the Forest Supervisor is the responsible official (36 CFR 219.56(e)(2)). The decision to approve the species of conservation concern list will be subject to a separate objection process. The Chief of the Forest Service is the reviewing officer for species of conservation concern since the Regional Forester is the responsible official (36 CFR 219.56(e)(2)).
Forest Service, Agriculture (USDA).
Notice of opportunity to object to the revised Land Management Plan for the Carson National Forest.
The Forest Service is revising the Carson National Forest's Land Management Plan (Forest Plan). The Forest Service has prepared a Final Environmental Impact Statement (FEIS) for its revised Forest Plan and a draft Record of Decision (ROD). This notice is to inform the public that the Carson National Forest is initiating a 60-day period where individuals or entities with specific concerns about the Carson National Forest's revised Forest Plan and the associated FEIS may file objections for Forest Service review prior to the approval of the revised Forest Plan. This is also an opportunity to object to the Regional Forester's list of species of conservation concern for the Carson National Forest.
The publication date of the legal notice in the Carson National Forest's newspaper of record,
The Carson National Forest's revised Forest Plan, FEIS, draft ROD, species of conservation concern list, and other supporting information will be available for review at:
Objections must be submitted to the Objection Reviewing Officer by one of the following methods:
•
• Electronically at
•
•
Forest Planner, Peter Rich at (575) 758-6277 or
Individuals who use telecommunication devices for the hearing-impaired (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Daylight Time, Monday through Friday.
The decision to approve the revised Forest Plan and the Regional Forester's list of species of conservation concern for the Carson National Forest will be subject to the objection process identified in 36 CFR part 219 Subpart B (219.50 to 219.62).
Objections must be submitted to the Objection Reviewing Officer at the address shown in the
(1) The objector's name and address along with a telephone number or email address if available. In cases where no identifiable name is attached to an objection, the Forest Service will attempt to verify the identity of the objector to confirm objection eligibility;
(2) Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the objection);
(3) Identification of the lead objector, when multiple names are listed on an objection. The Forest Service will communicate to all parties to an objection through the lead objector. Verification of the identity of the lead objector must also be provided if requested;
(4) The name of the plan, plan amendment, or plan revision being objected to, and the name and title of the responsible official;
(5) A statement of the issues and/or parts of the plan, plan amendment, or plan revision to which the objection applies;
(6) A concise statement explaining the objection and suggesting how the draft plan decision may be improved. If the objector believes that the plan, plan amendment, or plan revision is inconsistent with law, regulation, or policy, an explanation should be included;
(7) A statement that demonstrates the link between the objector's prior substantive formal comments and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment; and
(8) All documents referenced in the objection (a bibliography is not sufficient), except the following need not be provided:
a. All or any part of a Federal law or regulation,
b. Forest Service Directive System documents and land management plans or other published Forest Service documents,
c. Documents referenced by the Forest Service in the planning documentation related to the proposal subject to objection, and
d. Formal comments previously provided to the Forest Service by the objector during the proposed plan, plan amendment, or plan revision comment period.
It is the responsibility of the objector to ensure that the Objection Reviewing Officer receives the objection in a timely manner. The regulations prohibit extending the length of the objection filing period (36 CFR 219.56(d)).
The responsible official who will approve the ROD and the revised Forest Plan for the Carson National Forest is James Duran, Forest Supervisor, Carson National Forest, Carson National Forest Supervisor's Office, 208 Cruz Alta Rd., Taos, NM 87571, and Phone: (575) 758-6301. The responsible official for the list of species of conservation concern is Michiko Martin, Regional Forester, USDA Forest Service Southwestern Region, 333 Broadway Blvd. SE, Albuquerque NM 87102.
The Regional Forester is the reviewing officer for the revised Forest Plan since the Forest Supervisor is the responsible official (36 CFR 219.56(e)(2)). The decision to approve the species of conservation concern list will be subject to a separate objection process. The Chief of the Forest Service is the reviewing officer for species of conservation concern identification since the Regional Forester is the responsible official (36 CFR 219.56(e)(2)).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that Sahamitr Pressure Container Plc. (also known as Sahamitr Pressure Container Public Company Limited) (SMPC) made sales of subject merchandise at less than normal value (NV) during the period of review (POR) December 27, 2018, through July 31, 2020. We invite interested parties to comment on these preliminary results.
Applicable September 2, 2021.
Jolanta Lawska, 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) 482-8362.
In accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act), Commerce is conducting an administrative review of the antidumping duty (AD) order on steel propane cylinders from Thailand. On October 6, 2020, in accordance with 19 CFR 251.221(c)(1)(i), we initiated the administrative review of the AD order on SMPC.
The merchandise covered by this order is steel propane cylinders from Thailand. For a complete description of the scope of the order,
Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Act. Export price was calculated in accordance with section 772 of the Act. Normal value was calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
Commerce preliminarily determines that the following weighted-average dumping margin exists for the period December 27, 2018, through July 31, 2020:
Upon completion of this administrative review, Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. If an examined respondent's weighted-average dumping margin is not zero or
Commerce clarified its “automatic assessment” regulation on May 6, 2003.
We intend to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for SMPC will be equal to the weighted-average dumping margin established in the final results of this review (except, if that rate is
We intend to disclose the calculations performed to parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via Commerce's electronic records system, ACCESS. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised by each party in their respective case brief. If a request for a hearing is made, Commerce will announce the date and time of the hearing. Parties should confirm by telephone the date and time of the hearing two days before the scheduled hearing date.
Note that Commerce has temporarily modified certain of its requirements for serving documents containing business proprietary information, until further notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, unless extended, pursuant to section 751(a)(3)(A) of the Act.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
We are issuing and publishing these preliminary results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h)(1) and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that granular polytetrafluoroethylene resin (granular PTFE resin) from the Russian Federation (Russia) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation is January 1, 2020, through December 31, 2020. Interested parties are invited to comment on this preliminary determination.
Applicable September 2, 2021.
Jaron Moore or William Horn, 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) 482-3640 or (202) 482-4868, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 23, 2021.
The product covered by this investigation is granular PTFE from Russia. For a complete description of the scope of this investigation,
In accordance with the
No scope case briefs were received prior to the deadline established in the Preliminary Scope Decision
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated constructed export prices in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination,
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In this investigation, Commerce calculated an individual estimated weighted-average dumping margin for HaloPolymer OJSC (Halopolymer), the sole mandatory respondent, that is not zero,
Commerce preliminarily determines that the following estimated weighted-average dumping margins
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Commerce normally adjusts the estimated weighted-average dumping margin by the amount of export subsidies determined in a companion countervailing duty (CVD) proceeding when CVD provisional measures are in effect. Accordingly, where Commerce has made a preliminary affirmative determination for export subsidies, Commerce has offset the calculated estimated weighted-average dumping margin by the appropriate CVD rate(s). As further explained in the Preliminary Decision Memorandum, we made an adjustment for export subsidies found in the companion CVD investigation.
Should provisional measures in the companion CVD investigation expire prior to the expiration of provisional measures in this LTFV investigation, Commerce will direct CBP to begin collecting cash deposits at a rate equal to the estimated weighted-average dumping margin calculated in this preliminary determination unadjusted for export subsidies at the time the CVD provisional measures expire. These suspension of liquidation instructions will remain in effect until further notice.
Commerce intends to disclose to interested parties its calculations performed in connection with this preliminary determination within five days of any 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 provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination. Normally, Commerce verifies information using standard procedures, including an on-site examination of original accounting, financial, and sales documentation. However, due to current travel restrictions in response to the global COVID-19 pandemic, Commerce is unable to conduct on-site verification in this investigation. Accordingly, we intend to verify the information relied upon in making the final determination through alternative means in lieu of an on-site verification.
Case briefs or other written comments on non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance. Interested parties will be notified of the timeline for the submission of such case briefs and written comments at a later date. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On August 11, 2021, pursuant to 19 CFR 351.210(e), Halopolymer requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its affirmative preliminary determination. If the final determination is affirmative, then the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act, and 19 CFR 351.205(c) and 19 CFR 351.210(g).
The product covered by this investigation is granular polytetrafluoroethylene (PTFE) resin. Granular PTFE resin is covered by the scope of this investigation whether filled or unfilled, whether or not modified, and whether or not containing co-polymer, additives, pigments, or other materials. Also included is PTFE wet raw polymer. The chemical formula for granular PTFE resin is C2F4, and the Chemical Abstracts Service (CAS) Registry number is 9002-84-0.
Subject merchandise includes material matching the above description that has been finished, packaged, or otherwise processed in a third country, including by filling, modifying, compounding, packaging with another product, or performing any other finishing, packaging, or processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the granular PTFE resin.
The product covered by this investigation does not include dispersion or coagulated dispersion (also known as fine powder) PTFE.
PTFE further processed into micropowder, having particle size typically ranging from 1 to 25 microns, and a melt-flow rate no less than 0.1 gram/10 minutes, is excluded from the scope of this investigation.
Granular PTFE resin is classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheading 3904.61.0010. Subject merchandise may also be classified under HTSUS subheading 3904.69.5000. Although the HTSUS subheadings and CAS Number are provided for convenience and customs purposes, the written description of the scope is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that granular polytetrafluoroethylene (PTFE) resin from India is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2020,
Applicable September 2, 2021.
Alexis Cherry or Katherine Johnson, 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) 482-0607 or (202) 482-4929, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on February 23, 2021.
The product covered by this investigation is granular PTFE resin from India. For a complete description of the scope of this investigation,
In accordance with the
No scope case briefs were received prior to the deadline established in the Preliminary Scope Decision Memorandum.
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination,
On June 8, 2021, the petitioner
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In this investigation, Commerce calculated an individual estimated weighted-average dumping margin for GFCL, the only individually examined exporter/producer in this investigation. Because the only individually calculated dumping margin is not zero,
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondent listed above will be equal to the company-specific estimated weighted-average dumping margin determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin.
Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. As noted above, Commerce preliminarily finds that critical circumstances exist for imports of subject merchandise produced or exported by GFCL and all other producers or exporters. In accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of shipments of subject merchandise from the producers or exporters identified in this paragraph that were entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.
Commerce normally adjusts cash deposits for estimated antidumping duties by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. Accordingly, where Commerce preliminarily made an affirmative determination for countervailable export subsidies, Commerce has offset the estimated weighted-average dumping margin by the appropriate CVD rate(s).
Should provisional measures in the companion CVD investigation expire prior to the expiration of provisional measures in this LTFV investigation, Commerce will direct CBP to begin collecting estimated antidumping duty cash deposits unadjusted for countervailed export subsidies at the time that the provisional CVD measures expire. These suspension of liquidation instructions will remain in effect until further notice.
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of any 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 provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination. Normally, Commerce verifies information using standard procedures, including an on-site examination of original accounting, financial, and sales documentation. However, due to current travel restrictions in response to the global COVID-19 pandemic, Commerce is unable to conduct on-site verification in this investigation. Accordingly, we intend to verify the information relied upon in making the final determination through alternative means in lieu of an on-site verification.
Case briefs or other written comments on non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance. Interested parties will be notified of the timeline for the submission of such case briefs and written comments at a later date. Rebuttal briefs, limited to issues raised in these case briefs, may be submitted no later than seven days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date, time, and
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On August 5, 2021, pursuant to 19 CFR 351.210(e), GFCL requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act, and 19 CFR 351.205(c) and 19 CFR 351.210(g).
The product covered by this investigation is granular polytetrafluoroethylene (PTFE) resin. PTFE is covered by the scope of this investigation whether filled or unfilled, whether or not modified, and whether or not containing co-polymer, additives, pigments, or other materials. Also included is PTFE wet raw polymer. The chemical formula for PTFE is C2F4, and the Chemical Abstracts Service Registry number is 9002-84-0.
Subject merchandise includes material matching the above description that has been finished, packaged, or otherwise processed in a third country, including by filling, modifying, compounding, packaging with another product, or performing any other finishing, packaging, or processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the granular PTFE.
The product covered by this investigation does not include dispersion or coagulated dispersion (also known as fine powder) PTFE.
PTFE further processed into micropowder, having particle size typically ranging from 1 to 25 microns, and a melt-flow rate no less than 0.1 gram/10 minutes, is excluded from the scope of this investigation.
Granular PTFE is classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheading 3904.61.0010. Subject merchandise may also be classified under HTSUS subheading 3904.69.5000. Although the HTSUS subheadings and CAS Number are provided for convenience and Customs purposes, the written description of the scope is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is initiating a changed circumstances review (CCR) of the antidumping duty (AD) order on wooden cabinets and vanities and components thereof (cabinets) from the People's Republic of China (China) and simultaneously issuing preliminarily results, finding that Goldenhome Living Co., Ltd., (Goldenhome) is the successor-in-interest to Xiamen Goldenhome Co., Ltd., (Xiamen Goldenhome).
Effective September 2, 2021.
Jacob Keller, 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) 482-4849.
On April 21, 2020, we published in the
On July 19, 2021, Goldenhome informed Commerce that, as of October 9, 2020, Xiamen Goldenhome changed its name to “Goldenhome Living Co., Ltd.”
The products covered by the
Section 751(b)(4)(B) of the Act and 19 CFR 351.216(c) state that, “in the absence of good cause shown,” the Secretary of Commerce may not review a final AD or countervailing duty (CVD) determination less than 24 months after the date of publication of the notice of final determination or notice of suspension of an investigation. The final determination of the AD investigation of cabinets from China published on February 28, 2020.
Pursuant to section 751(b)(1)(A) of the Act and 19 CFR 351.216(d), Commerce will conduct a CCR upon receipt of information concerning, or a request from, an interested party for a review of an AD order which shows changed circumstances sufficient to warrant a review of the order. We preliminarily find the information provided sufficient to warrant a CCR of the
Section 351.221(c)(3)(ii) of Commerce's regulations permits Commerce to combine the notice of initiation of a CCR and the notice of preliminary results if Commerce concludes that expedited action is warranted.
In determining whether one company is the successor to another for AD purposes, Commerce examines several factors including, but not limited to, changes in: (1) Management; (2) production facilities; (3) suppliers; and (4) customer base. While no one, or several, of these factors will necessarily provide a dispositive indication of succession, Commerce will generally consider one company to be the successor to another company if its resulting operations are essentially the same as those of its predecessor. Thus, if the evidence demonstrates that, with respect to the production and sale of the subject merchandise, the company, in its current form, operates as essentially the same business entity as the prior company, Commerce will assign the new company the cash deposit rate of its predecessor.
In accordance with 19 CFR 351.216, we preliminarily determine that Goldenhome is the successor-in-interest to Xiamen Goldenhome. Record evidence, as submitted by Goldenhome, indicates that, based on the totality of the circumstances under Commerce's successor-in-interest criteria, Goldenhome's management and business relations are virtually identical to those of Xiamen Goldenhome before the name change with respect to the merchandise under review. Moreover, we preliminarily find that Goldenhome's production facilities, supplier relationships, and customer base, regarding the merchandise under review, are substantially the same as Xiamen Goldenhome before the name change. For the complete successor-in-interest analysis,
Should the final results of review remain the same as these preliminary results of review, effective the date of publication of the final results of review, we will instruct U.S. Customs and Border Protection to apply to entries of subject merchandise exported by Goldenhome the AD cash deposit rate applicable to Xiamen Goldenhome.
Interested parties may submit case briefs no later than 14 days after the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. An electronically filed hearing request must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 14 days after the date of publication of this notice.
Consistent with 19 CFR 351.216(e), Commerce intends to issue the final results of this CCR no later than 270 days after the date on which this review was initiated, or within 45 days of publication of these preliminary results, if all parties agree to our preliminary finding.
This notice is published in accordance with sections 751(b)(1) and 777(i) of the Act, and 19 CFR 351.216(b) and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily finds that large power transformers from the Republic of Korea were sold in the United States at less than normal value during the period of review (POR), August 1, 2019, through July 31, 2020. Interested parties are invited to comment on these preliminary results.
Applicable September 2, 2021.
John Drury, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0195.
Commerce initiated this review on October 6, 2020.
The Preliminary 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 to ACCESS is available to registered users at
The scope of this order covers large liquid dielectric power transformers having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete. The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States at subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540. This tariff classification is provided for convenience and Customs purposes; however, the written description of the scope of the order is dispositive.
Commerce is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our conclusions,
On October 27, 2020, LS Electric Co., Ltd. (LS Electric), formerly known as LSIS Co., Ltd. (LSIS)
We preliminarily determine that, for the period August 1, 2018, through July 31, 2019, the following weighted-average dumping margins exist:
Commerce will disclose to parties to the proceeding any calculations performed in connection with these preliminary results of review within five days after the date of publication of this notice.
Parties who submit case or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; (3) whether any participant is a foreign national; and (4) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, Commerce intends to hold the hearing at a time and date to be determined. Parties should confirm by telephone the date and time of the hearing two days before the scheduled date.
Commerce intends to publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, no later than 120 days after publication of these preliminary results, unless extended.
Upon issuing the final results, Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries. If the weighted-average dumping margin for Hyosung is not zero or
In accordance with Commerce's “automatic assessment” practice,
For the companies which were not selected for individual review (
Consistent with its recent notice,
The following cash deposit requirements will be effective upon
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
List of Topics Discussed in the Preliminary Decision Memorandum
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the antidumping duty (AD) order on aluminum wire and cable from the People's Republic of China (China) covering the period June 5, 2019, through November 30, 2020. We preliminarily determine that ICF Cable and Jin Tiong Electrical Materials Manufacturer PTE, Limited (Jin Tiong) are not eligible for a separate rate, and, therefore, are part of the China-wide entity. Interested parties are invited to comment on these preliminary results.
Applicable September 2, 2021.
Sean Carey, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3964.
On December 23, 2019, Commerce published the AD order on aluminum wire and cable from China.
On February 10, 2021, Commerce released U.S. Customs and Border Protection (CBP) entry data for U.S. imports of aluminum wire and cable from China during the POR that were subject to the
On July 28, 2021, Commerce determined that it had erroneously issued its questionnaire to Jin Tiong
The products covered by this
Commerce is conducting this administrative review in accordance with section 751(a)(1)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213.
Commerce considers China to be a non-market economy (NME) country.
ICF Cable and Jin Tiong are the companies subject to this review. In the
In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
All firms listed {in the
Commerce also stated that either a separate rate certification or a separate rate application, as appropriate, is due from each company no later than 30 days after publication of the
The instructions for filing a separate rate application clearly state that each exporter is required to submit the necessary information needed to determine a company's eligibility for separate rate consideration:
Exporters, whether or not located in the NME country, owned wholly by entities located in market-economy countries, provided that the ultimate owners are also located in market-economy countries (“wholly market-economy owned firms”), need only fill out the certifications contained in this application and provide supporting documentation for the fields in the application that are marked with an asterisk, “*.” These marked fields pertain to the firm's eligibility for separate rates consideration and support the firm's claim that it is in fact wholly owned by a market-economy entity. This information is also necessary for administration once a separate rate has been issued.
Therefore, there is no basis for Jin Tiong's claim that it was exempt from filing a separate rate application based on it being located in Singapore, a market-economy country. The separate rate application clearly instructs such a company to provide the necessary information to demonstrate that it is wholly foreign owned.
Further, in the
In addition, Commerce no longer considers the NME-wide entity as an exporter conditionally subject to an antidumping duty administrative review.
Normally, Commerce discloses the calculations used in its analysis to parties in a review within five days of the date of publication of the notice of preliminary results, in accordance with 19 CFR 351.224(b). However, for the preliminary results of review, there are no calculations on the record to disclose.
Interested parties may submit case briefs no later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically via ACCESS within 30 days after the date of publication of this notice.
All submissions should be filed using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).
Unless otherwise extended, Commerce intends to issue the final results of this administrative review, which will include the results of its analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Upon issuance of the final results of the administrative review, Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the 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 companies that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and countervailing 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 and countervailing duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
The scope of the
Most aluminum wire and cable products conform to National Electrical Code (NEC) types THHN, THWN, THWN-2, XHHW-2, USE, USE-2, RHH, RHW, or RHW-2, and also conform to Underwriters Laboratories (UL) standards UL-44, UL-83, UL-758, UL-854, UL-1063, UL-1277, UL-1569, UL-1581, or UL-4703, but such conformity is not required for the merchandise to be included within the scope.
The scope of the
The merchandise covered by the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that sales of polyethylene retail carrier bags (PRCBs) were not made at less than normal value during the period of review (POR) August 1, 2019, through July 31, 2020. Interested parties are invited to comment on these preliminary results of review.
Applicable September 2, 2021.
Stephanie Berger, 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) 482-2483.
On October 6, 2020, Commerce published a notice initiating an antidumping duty administrative review of PRCBs from Malaysia covering Euro SME Sdn Bhd (Euro SME) for the POR.
On March 31, 2021, Commerce extended the deadline for issuing the preliminary results of this review.
The merchandise covered by this order is PRCBs from Malaysia, which also may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. For a full description of the scope of the order,
Commerce is conducting this administrative review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). Export price was calculated in accordance with section 772 of the Act. Normal value was calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
Commerce preliminarily determines that the following weighted-average dumping margin exists for the period August 1, 2019, through July 31, 2020:
On December 31, 2020, the Polyethylene Retail Carrier Bag Committee and its individual members, Hilex Poly Co., LLC and Superbag Corp. (petitioners) requested, pursuant to 19 CFR 351.307(b)(1)(v) that Commerce conduct verification of the questionnaire responses of Euro SME.
Commerce intends to disclose the calculations used in its analysis to interested parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Case briefs may be submitted to the Assistant Secretary for Enforcement and Compliance.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be
We intend to issue the final results of this administrative review, including the results of our analysis of issues raised by the parties in the written comments, within 120 days of publication of these preliminary results in the
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), upon issuance of the final results, Commerce intends to determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
For any individually examined respondent whose weighted-average dumping margin is not
For entries of subject merchandise during the POR for which a respondent did not know that its merchandise was destined for the United States, we intend to instruct CBP to liquidate such entries at the all-others rate if there is no rate for the intermediate company (or companies) involved in the transaction.
We intend to issue liquidation instructions to CBP 35 days after the date of publication of the final results of this administrative review in the
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the companies listed above, will be the rate established in the final results of the review (if the rate is zero or
These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) and the International Trade Commission automatically initiate and conduct reviews to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
Pursuant to section 751(c) of the Act, the following Sunset Reviews are scheduled for initiation in October 2021 and will appear in that month's
No Sunset Review of suspended investigations is scheduled for initiation in October 2021.
Commerce's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. The
Pursuant to 19 CFR 351.103(c), Commerce will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact Commerce in writing within 10 days of the publication of the Notice of Initiation.
Please note that if Commerce receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue.
Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation. Note that Commerce has modified certain of its requirements for serving documents containing business proprietary information, until further notice.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (Commerce) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting date.
In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below.
Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 35 days of publication of the initiation
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, Commerce finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.
Section 504 of the Trade Preferences Extension Act of 2015 amended the Act by adding the concept of particular market situation (PMS) for purposes of constructed value under section 773(e) of the Act.
Neither section 773(e) of the Act nor 19 CFR 351.301(c)(2)(v) set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of initial Section D responses.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party Commerce was unable to locate in prior segments, Commerce will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Commerce no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative reviews.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) on Enforcement and Compliance's ACCESS website at
Commerce will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The South Atlantic Fishery Management Council (Council) will host a workgroup meeting via webinar to develop an ecosystem model to describe the ecological effects of increased Red Snapper recruitment.
The webinar meeting will be held September 21-23, 2021, from 12:30 p.m. until 5 p.m. each day.
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8439 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Council will host a workgroup meeting to develop an ecosystem model to describe the ecological effects of increased Red Snapper recruitment. An ecosystem model has been developed for the South Atlantic region and the model is being parameterized to describe the potential ecological impact of changing Red Snapper recruitment. Modelers will present their ecosystem model to the workgroup to gather feedback and describe assumptions. Participants include ecosystem modelers, stock assessment scientists, biologists, and researchers. The product from the workgroup meeting will be a report to the Council.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Protected Resources Committee will hold a public meeting via webinar.
The meeting will be held on Monday, September 20, 2021, from 1 p.m. to 3:30 p.m. See
The meeting will be held via webinar. Details on the agenda, webinar listen-in access, and briefing materials will be posted at the MAFMC's website:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's Protected Resources Committee will meet to review scoping materials for phase two of the Atlantic Large Whale Take Reduction Plan which focuses on reducing the risk of entanglement to right, humpback, and fin whales in U.S. East Coast gillnet, Atlantic mixed species trap/pot, and Mid-Atlantic lobster and Jonah crab trap/pot fisheries. The measures that will be developed in phase two of this plan have the potential to impact several Council managed fisheries and the Protected Resources Committee will develop recommendations for Council engagement in the scoping process, which extends to October 21, 2021. The Council will consider these recommendations at their October meeting.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shelley Spedden at the Mid-Atlantic Council Office, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR webinar III for SEDAR Procedural Workshop 8: Fishery Independent Index Development under changing survey design.
The SEDAR Procedural Workshop 8 for Fishery Independent Index Development will consist of a series of webinars and an in-person workshop. See
The SEDAR Procedural Workshop 8 webinar III will be held from 2 p.m. until 4 p.m. EDT, September 20, 2021.
Julie A. Neer, SEDAR Coordinator; (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the webinar are as follows:
Participants will discuss data analysis for the SEDAR Procedural Workshop 8.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Scallop Joint Advisory Panel and Plan Development Team via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This webinar will be held on Tuesday, September 21, 2021, at 9 a.m. Webinar registration URL information:
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel and Plan Development Team will discuss Framework 34, specifically a review of results of 2021 scallop surveys, and preliminary projections. The primary focus of this meeting will be to develop input on the range of potential specification alternatives for FY 2022 and FY 2023. Framework 34 will implement measures approved through Amendment 21 to the FMP. The action will set ABC/ACLs, days-at-sea, access area allocations, total allowable landings for the Northern Gulf of Maine (NGOM) management area, targets for General Category incidental catch, General Category access area trips and trip accounting, and set-asides for the observer and research programs for fishing year 2022 and default specifications for fishing year 2023. They will also discuss the 2021 Work Priorities with a focus on Amendment 21 timelines, including final decision and implementation. Receive updates on the progress of the Scallop Survey Working Group and the evaluation of rotational management. Develop input, if needed. Separately the Advisory Panel will provide input on the range of possible 2022 scallop work priorities. Other business will be discussed, if necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of web conference.
The North Pacific Fishery Management Council (Council) Groundfish Plan Teams will meet September 20, 2021 through September 24, 2021.
The meetings will be held on Monday, September 20, 2021 through Thursday, September 23, 2021, from 8 a.m. to 4 p.m., Alaska time. If necessary, the meetings will continue into Friday, September 24, 2021.
The meeting will be a web conference. Join online through the link at
Sara Cleaver, Council staff; phone: (907) 271-2809; email:
The Bering Sea and Aleutian Islands (BSAI) and Gulf of Alaska (GOA) Groundfish Plan Teams will meet jointly to review and discuss issues of importance to both Plan Teams, including but not limited to: Bering Sea Fishery Ecosystem Plan, observer updates, Economic and Socioeconomic Profile update, Climate Fisheries Initiative, Ecosystem Status Report Climate update, Ecosystem surveys, Essential Fish Habitat, Economic Stock Assessment and Fishery Evaluation (SAFE), Bottom Trawl Surveys (BTS), Age Composition estimation, Random effects models, Assessment Risk Tables, Longline survey, and Sablefish assessment.
The BSAI Groundfish Plan Team will review stock assessment updates and reports on Arctic Regional Action Plan, Easter Bering Sea (EBS) Regional Action Plan, Alaska Climate Integrated Modeling (ACLIM), EBS Pacific cod, Aleutian Island (AI) Pacific cod, Survey sample design, BSAI Greenland turbot, Acoustic vessels of opportunity, EBS pollock, BSAI Atka mackerel, Blackspotted and Rougheye rockfish genetics and spatial management issues, and proposed specifications.
The GOA Groundfish Plan Team will review stock assessment updates and reports on GOA Regional Action Plan, GOA ACLIM, GOA BTS, GOA BTS Design, Shelikof survey, Shelikof time series, GOA pollock, GOA Pacific ocean perch, GOA Other rockfish, Rockfish genetics, GOA rock sole, GOA Pacific cod, Pacific cod Economic and Socioeconomic Profile, and proposed specifications.
The agenda is subject to change, and the latest version will be posted at
The BSAI and GOA Groundfish Plan Teams will meet jointly or individually as necessary to complete discussion of the agenda items previously listed, and/or work on minutes.
You can attend the meeting online using a computer, tablet, or smartphone; or by phone only. Connection information will be posted online at:
Public comment letters should be submitted electronically via the electronic agenda at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 74 Data Scoping Webinar II for Gulf of Mexico red snapper.
The SEDAR 74 assessment of Gulf of Mexico red snapper will consist of a Data workshop, a series of assessment webinars, and a Review workshop. See
The SEDAR 74 Data Scoping Webinar II will be held on September 20, 2021, from 11 a.m. to 1 p.m. Eastern.
Julie A. Neer, SEDAR Coordinator; (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data
The items of discussion in the data webinar are as follows:
• Participants will discuss what data from the GRSC may be available for use in the assessment of Gulf of Mexico red snapper.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of data webinar.
The SEDAR 77 assessment of the Atlantic stock of hammerhead sharks will consist of a stock identification (ID) process, data webinars/workshop, a series of assessment webinars, and a review workshop. See
The SEDAR 77 HMS Hammerhead Sharks Data webinar I has been scheduled for Thursday, September 23, 2021, from 12 p.m. until 3 p.m. EDT.
Kathleen Howington, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4371; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion at the SEDAR 77 HMS Hammerhead Shark Data Webinar 1 are as follows: Identify and discuss data issues or concerns.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the South Atlantic Fishery Management Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The MAFMC's Spiny Dogfish Monitoring Committee will meet via webinar to develop recommendations for Spiny Dogfish specifications.
The meeting will be held on Monday, September 20, 2021, from 1:30 p.m. to 3:30 p.m.
The meeting will be held via webinar. Details on the proposed agenda, connection information, and briefing materials will be posted via the MAFMC website calendar at:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Spiny Dogfish Monitoring Committee will meet to review annual specifications and management measures and make any appropriate recommendations for future Spiny Dogfish specifications.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden at (302) 526-5251, at least 5 days prior to any meeting date.
The Corporation for National and Community Service.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Corporation for National and Community Service (operating as AmeriCorps) is proposing to renew an information collection.
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1) By mail sent to: AmeriCorps, Attention: Rhonda Taylor, 250 E Street SW, Washington, DC 20525.
(2) By hand delivery or by courier to the AmeriCorps mailroom at the mail address given in paragraph (1) above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except federal holidays.
(3) Electronically through
Comments submitted in response to this notice may be made available to the public through
Rhonda Taylor, 202-355-2202, or by email at
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information. All written comments will
The Corporation for National and Community Service.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Corporation for National and Community Service (operating as AmeriCorps) is proposing a renewal of the existing public information collection request (ICR) entitled NCCC Impact Evaluation with revisions that expand the scope to include COVID-19 vaccine distribution and related activities case studies.
Written comments must be submitted to the individual and office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1)
(2) By hand delivery or by courier to the AmeriCorps mailroom at the mail address given in paragraph (1) above, between 9:00 a.m. and 4:00 p.m. Eastern Time, Monday through Friday, except federal holidays.
(3) Electronically through
Comments submitted in response to this notice may be made available to the public through
Melissa Gouge, 202-606-6736, or by email at
These activities are an essential element of our agency's COVID-19 pandemic response—one that is also essential to our mission—to improve lives and strengthen communities. To further our mission in a time of increasing uncertainty, we aim to collect information on current activity that must be measured now in order to assess, identify, and make any identified programmatic changes. Peak performance of these projects is crucial to our agency's COVID-19 pandemic response and public safety writ large.
Vaccine delivery is of increasing importance as the COVID-19 pandemic continues an unpredictable course. In time, we hope, the pandemic will subside, but it is crucial that we analyze these mission assignments now to make improvements that will literally save lives. How will this save lives? Currently, just over 50% of Americans are fully vaccinated against the virus (Source:
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information. All written comments will be available for public inspection on
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
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 impact statement (EIS) that will discuss the environmental impacts of the Hackberry Storage Project (Project) involving construction and operation of facilities by LA Storage, LLC (LA Storage) in Cameron and Calcasieu Parishes, Louisiana. The Commission will use the EIS in its decision-making process to determine whether LA Storage's proposed Project is in the public convenience and necessity. The schedule for preparation of the EIS is discussed in the
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 whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” By notice issued on October 20, 2020, in Docket No. PF20-5-000, the Commission opened a scoping period during LA Storage's planning process for the Project and prior to filing a formal application with the Commission, a process referred to as “pre-filing.” LA Storage has now filed an application with the Commission, and staff intends to prepare an EIS that will address the concerns raised during the pre-filing scoping process as well as comments received in response to this notice. Therefore, the Commission requests comments on potential alternatives and impacts, and any relevant information, studies, or analyses of any kind concerning impacts affecting the quality of the human environment. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on September 26, 2021. Further details on how to submit comments are provided in the
As mentioned above, during the pre-filing process, the Commission opened a scoping period which expired on November 19, 2020; however, Commission staff continued to accept comments during the entire pre-filing process. All substantive written and oral comments provided during pre-filing will be considered during the preparation of the EIS. Therefore, if you submitted comments on this Project to the Commission during the pre-filing process in Docket No. PF20-5-000 you do not need to file those comments again.
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 grant, exercise, or oversee the exercise of eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
LA Storage 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. 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 (CP21-44-000) 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, MD 20852.
Additionally, the Commission offers a free service called eSubscription. This service provides automatic notification of filings made to subscribed dockets, document summaries, and direct links to the documents. Go to
The Project would involve the conversion of three existing salt dome caverns to natural gas storage service and the development of one new salt dome cavern for additional natural gas storage service, all within a permanent natural gas storage facility on a 160-acre tract of land owned by LA Storage. In addition to the storage caverns, LA Storage would construct and operate on-site compression facilities (Pelican Compressor Station) and up to six solution mining water supply wells at the storage facility on LA Storage's property; the Hackberry Pipeline, consisting of approximately 11.1 miles of 42-inch-diameter natural gas pipeline connecting the certificated Port Arthur
The general location of the project facilities is shown in appendix 1.
Construction of the planned facilities would disturb about 441 acres of land. Following construction, LA Storage would maintain about 267 acres for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses. The Hackberry Pipeline, CIP Lateral, and brine disposal pipeline would be collocated for 4.7 miles.
Based on an initial review of LA Storage's proposal and public comments received during the pre-filing process, Commission staff have identified several expected impacts that deserve attention in the EIS. These include: Project impacts on wetlands and other fish and wildlife resources; impacts on water and air quality; safety of salt domes and brine injection; greenhouse gas emissions; and climate change.
The EIS 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;
• socioeconomics;
• land use;
• greenhouse gas and climate;
• air quality and noise; and
• reliability and safety.
Commission staff will also make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff focus its analysis on the issues that may have a significant effect on the human environment.
The EIS will present Commission staff's independent analysis of the issues. Staff will prepare a draft EIS which will be issued for public comment. Commission staff will consider all timely comments received during the comment period on the draft EIS and revise the document, as necessary, before issuing a final EIS. Any draft and final EIS will be available in electronic format in the public record through eLibrary
The EIS will evaluate reasonable alternatives that are technically and economically feasible and meet the purpose and need for the proposed action.
With this notice, the Commission requests specific comments regarding any additional potential alternatives to the proposed action or segments of the proposed action. Please focus your comments on reasonable alternatives (including alternative facility sites) that meet the Project objectives, are technically and economically feasible, and avoid or lessen environmental impact.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission initiated section 106 consultation for the Project in the notice issued on October 20, 2020, with the Louisiana State Historic Preservation Office, and other government agencies, interested Indian tribes, and the public to solicit their views and concerns regarding the Project's potential effects on historic properties.
On February 10, 2021, the Commission issued its Notice of Application for the Project. Among other things, that notice alerted other agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on the request for a federal authorization within 90 days of the date of issuance of the Commission staff's final EIS for the Project. This notice identifies the Commission staff's planned schedule for completion of a final EIS for the Project, which is based on an issuance of the draft EIS in December 2021.
If a schedule change becomes necessary for the final EIS, an additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
The table below lists the anticipated permits and authorizations for the Project required under federal law. This list may not be all-inclusive and does not preclude any permit or authorization if it is not listed here. Agencies with jurisdiction by law and/or special expertise may formally cooperate in the preparation of the Commission's EIS and may adopt the EIS to satisfy its NEPA responsibilities related to this Project. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the
This notice is being sent to the Commission's current environmental mailing list for the Project which includes federal, state, and local government representatives and agencies; local libraries; newspapers; elected officials; 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. 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 need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
Or
(2) Return the attached “Mailing List Update Form” (appendix 2).
Additional information about the Project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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j. One Hundred River filed its request to use the Traditional Licensing Process on June 30, 2021, and provided public notice of its request on June 30, 2021 and July 7, 2021. In a letter dated August 27, 2021, the Director of the Division of Hydropower Licensing approved One Hundred River's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Vermont State Historic Preservation Officer, as required by section 106 of the National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating One Hundred River as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and consultation pursuant to section 106 of the National Historic Preservation Act.
m. On June 30, 2021, One Hundred River filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed and/or printed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a subsequent license for Project No. 9648. Pursuant to 18 CFR 16.20, each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by June 30, 2024.
p. Register online at
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j. Factory Falls filed its request to use the Traditional Licensing Process on June 30, 2021 and provided public notice of its request on June 30, 2021 and July 7, 2021. In a letter dated August 27, 2021, the Director of the Division of Hydropower Licensing approved Factory Falls' request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Vermont State Historic Preservation Officer, as required by section 106 of the National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Factory Falls as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. On June 30, 2021, Factory Falls filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed and/or printed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a subsequent license for Project No. 9650. Pursuant to 18 CFR 16.20, each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by June 30, 2024.
p. Register online at
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j. Lovejoy Tool filed its request to use the Traditional Licensing Process on June 30, 2021 and provided public notice of its request on June 30, 2021 and July 7, 2021. In a letter dated August 27, 2021, the Director of the Division of Hydropower Licensing approved Lovejoy Tool's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Vermont State Historic Preservation Officer, as required by section 106 of the National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Lovejoy Tool as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. On June 30, 2021, Lovejoy Tool filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed and/or printed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a subsequent license for Project No. 9649. Pursuant to 18 CFR 16.20, each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by June 30, 2024.
p. Register online at
This is a supplemental notice in the above-referenced proceeding of PGR 2021 Lessee 7, 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 September 15, 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
This is a supplemental notice in the above-referenced proceeding of Spartacus Energy Services, 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 September 16, 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
This is a supplemental notice in the above-referenced proceeding of Central Line 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 September 15, 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
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j. Comtu filed its request to use the Traditional Licensing Process on June 30, 2021, and provided public notice of its request on June 30, 2021. In a letter dated August 27, 2021, the Director of the Division of Hydropower Licensing approved Comtu's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Vermont State Historic Preservation Officer, as required by section 106 of the National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Comtu as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. On June 30, 2021, Comtu filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD may be viewed and/or printed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a subsequent license for Project No. 7888. Pursuant to 18 CFR 16.20, each application for a subsequent license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by June 30, 2024.
p. Register online at
Environmental Protection Agency (EPA).
Notice.
In accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing a notice of receipt of requests by the registrants to voluntarily cancel their registrations of certain products and to amend certain product registrations to terminate uses. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests, or unless the registrants withdrew their requests. If these requests are granted, any sale, distribution, or use of products listed in this notice will be permitted after the registration has been cancelled and uses terminated only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before October 4, 2021.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2021-0513, through the Federal eRulemaking Portal at
Submit written withdrawal request by mail to: Registration Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. ATTN: Christopher Green.
Due to the public health concerns related to COVID-19, 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
Christopher Green, Registration Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 347-0367; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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This notice announces receipt by EPA of requests from registrants to cancel and terminate certain uses product registrations. The affected products and the registrants making the requests are identified in Tables 1-3 of this unit.
Unless a request is withdrawn by the registrant or if the Agency determines that there are substantive comments that warrant further review of this request, EPA intends to issue an order canceling and amending the affected registrations.
Table 3 of this unit includes the names and addresses of record for the registrants of the products listed in Table 1 and Table 2 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1 and Table 2 of this unit.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA (7 U.S.C. 136d(f)(1)(B)) requires that before acting on a request for voluntary cancellation, EPA must provide a 30-day public comment period on the request for voluntary cancellation or use termination. In addition, FIFRA section 6(f)(1)(C) (7 U.S.C. 136d(f)(1)(C)) requires that EPA provide a 180-day comment period on a request for voluntary cancellation or termination of any minor agricultural use before granting the request, unless:
1. The registrants request a waiver of the comment period, or
2. The EPA Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The registrants have requested that EPA waive the 180-day comment period. Accordingly, EPA will provide a 30-day comment period on the proposed requests.
Registrants who choose to withdraw a request for product cancellation or use deletion should submit the withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the action. If the requests for voluntary cancellation and amendments to terminate uses are granted, the Agency intends to publish the cancellation order in the
In any order issued in response to these requests for cancellation of product registrations and amendments to terminate uses, EPA proposes to include the following provisions for the treatment of any existing stocks of the products listed in Tables 1 and 2 of Unit II.
For voluntary product cancellations, registrants will be permitted to sell and distribute existing stocks of voluntarily canceled products for 1 year after the effective date of the cancellation, which will be the date of publication of the cancellation order in the
Once EPA has approved product labels reflecting the requested amendments to terminate uses, registrants will be permitted to sell or distribute products under the previously approved labeling for a period of 18 months after the date of
Persons other than the registrant may sell, distribute, or use existing stocks of canceled products & products whose labels include the terminated uses until supplies are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products & terminated uses.
Environmental Protection Agency (EPA).
Notice of final order on petition for objection to Clean Air Act Title V operating permit.
The Environmental Protection Agency (EPA) Administrator signed an Order dated August 9, 2021, granting in part and denying in part a Petition dated April 11, 2017 from the Environmental Integrity Project and Sierra Club. The Petition requested that the EPA object to a Clean Air Act (CAA) title V operating permit issued by the Texas Commission on Environmental Quality (TCEQ) to Blanchard Refining Company (Blanchard) for its Galveston Bay Refinery located in Galveston County, Texas.
The EPA requests that you contact the individual listed in the
Aimee Wilson, EPA Region 6 Office, Air Permits Section, (214) 665-7596,
The CAA affords EPA a 45-day period to review and object to, as appropriate, operating permits proposed by state permitting authorities under title V of the CAA. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of the EPA's 45-day review period if the EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or unless the grounds for the issue arose after this period.
The EPA received the Petition from the Environmental Integrity Project and Sierra Club dated April 11, 2017, requesting that the EPA object to the issuance of operating permit no. O1541, issued by TCEQ to the Galveston Bay Refinery in Galveston County, Texas. The Petition claims the proposed permit improperly incorporated a State-only major source flexible permit, failed to establish a compliance schedule for Blanchard to obtain a federally approved major source permit, failed to identify, incorporate, and assure compliance with permits by rule (PBR) claimed by Blanchard, and failed to assure compliance with emission limits and operating requirements established by Blanchard's New Source Review (NSR) permits, including permits by rule.
On August 9, 2021, the EPA Administrator issued an Order granting in part and denying in part the Petition. The Order explains the basis for EPA's decision.
Federal Deposit Insurance Corporation (FDIC).
Agency information collection activities: Submission for OMB review; comment request.
The FDIC, as part of its obligations under the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to take this opportunity to comment on the reinstatement of a previously approved and subsequently discontinued information collection for the Small Business Lending Survey, a survey of banks that the FDIC has proposed to field in May 2022. On April 21, 2021, the FDIC published a notice in the
Comments must be submitted on or before October 4, 2021.
Interested parties are invited to submit written comments to the FDIC 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
Manny Cabeza, Regulatory Counsel, 202-898-3767,
Proposal to reinstate the following collection of information:
Small businesses are an important component of the U.S. economy. According to the Small Business Administration (SBA), small firms accounted for almost half of private-sector employment and over 65 percent of net new jobs between 2000 and 2019.
Given the value of small businesses to the U.S. economy and the role of bank lending to small businesses, the proposed FDIC 2022 Small Business Lending Survey (SBLS 2022), which surveys banks, will provide important data to complement existing sources of information and will provide additional insight into many aspects of small business lending extended by banks.
The proposed SBLS 2022 will document the current types of credit offered, information banks use to underwrite loans, the market area for small business loans, competition for small business lending, and the practices used to conduct small business lending. SBLS 2022 asks similar questions about banks' lending volumes for business purposes as in the 2016 collection, but by finer gradations for both business size and loan size and by both loans outstanding and loan originations. The proposed collection will also provide new information on banks' current or planned use of financial technology, whether and how banks use automated lending, and the effects of the coronavirus pandemic with respect to their small business loan programs.
On April 21, 2021, the FDIC issued a request for comment (86 FR 20697) on a proposed second collection of the SBLS to be fielded in May 2022. No comments were received.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
The FDIC will consider all comments to determine the extent to which the information collection should be modified prior to submission to OMB for review and approval. After the comment period closes, comments will be summarized and/or included in the FDIC's request to OMB for approval of the collection. All comments will become a matter of public record.
Thursday, September 2, 2021 at 10:00 a.m.
Virtual Meeting. NOTE: Because of the Covid-19 Pandemic, We Will Conduct the Open Meeting Virtually. If You Would Like to Access The Meeting, See the Instructions Below.
The September 2, 2021 Open Meeting has been canceled.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
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 October 4, 2021.
1.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by October 4, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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CMS has used PDE data to create summarized dashboards and tools, including the Medicare Part D Drug Spending Dashboard & Data, the Part D Manufacturer Rebate Summary Report, and the Medicare Part D Opioid Prescribing Mapping Tool. The data are also used in the Medicare Trustees Report. Due to the market sensitive nature of PDE data, external uses of the data are subject to significant limitations. However, CMS does analyze the data on a regular basis to determine drug cost and utilization patterns in order to inform programmatic patterns and to develop informed policy in the Part D program.
The information users will be Pharmacy Benefit Managers (PBMs), third party administrators and pharmacies, and the PDPs, MA-PDs, Fallbacks and other plans that offer coverage of outpatient prescription drugs under the Medicare Part D benefit to Medicare beneficiaries. The statutorily required data is used primarily for payment and is used for claim validation as well as for other legislated functions such as quality monitoring, program integrity and oversight.
Administration for Children and Families, Department of Health and Human Services.
Notice of a re-established matching program.
In accordance with the Privacy Act of 1974, as amended, the Department of Health and Human Services, Administration for Children and Families, Office of Planning, Research, and Evaluation (HHS/ACF/OPRE), is providing notice of a re-established matching program between the Department of Defense, Defense Manpower Data Center (DoD/DMDC) and State Public Assistance Agencies (SPAAs), “Verification of Continued Eligibility for Benefits Through the Public Assistance Reporting Information System (PARIS) Program.” HHS/ACF/OPRE facilitates the matching program.
The deadline for comments on this notice is October 4, 2021. The re-established matching program will commence not sooner than 30 days after publication of this notice, provided no comments are received that warrant a change to this notice. The matching program will be conducted for an initial term of 18 months (from approximately September 30, 2021, through March 30, 2023) and within 3 months of expiration may be renewed for 1 additional year if the parties make no change to the matching program and certify that the program has been conducted in compliance with the matching agreement.
Interested parties may submit written comments on this notice, by mail or email, to the Director, Division of Data and Improvement, HHS/ACF Office of Planning, Research, and Evaluation, 330 C Street SW, Washington, DC 20201,
General questions about the matching program may be submitted to Alicia Gumbs, HHS/ACF Office of Planning, Research, and Evaluation, 330 C Street SW, Washington, DC 20201 (202) 690-8490,
The Privacy Act of 1974, as amended (5 U.S.C. 552a, subsection(e)(12)), provides certain protections for individuals applying for and receiving Federal benefits. The law governs the use of computer matching by Federal agencies when records in a system of records (meaning, Federal agency records about individuals retrieved by name or other personal identifier) are matched with records of other Federal or non-Federal agencies. The Privacy Act requires agencies involved in a matching program to:
1. Enter into a written agreement, which must be prepared in accordance with the Privacy Act, approved by the Data Integrity Board of each source and recipient Federal agency, provided to Congress and the Office of Management and Budget (OMB), and made available to the public, as required by 5 U.S.C. 552a(o), (u)(3)(A), and (u)(4).
2. Notify the individuals whose information will be used in the matching program that the information they provide is subject to verification through matching, as required by 5 U.S.C. 552a(o)(1)(D).
3. Verify match findings before suspending, terminating, reducing, or making a final denial of an individual's benefits or payments or taking other adverse action against the individual, as required by 5 U.S.C. 552a(p).
4. Report the matching program to Congress and the OMB, in advance and annually, as required by 5 U.S.C. 552a(o) (2)(A)(i), (r), and (u)(3)(D).
5. Publish advance notice of the matching program in the
This matching program complies with these requirements.
Department of Defense, Defense Manpower Data Center (DoD/DMDC) is the source agency, and each State Public Assistance Agency (SPAA) is a non-Federal agency. The Department of Health and Human Services, Administration for Children and Families, Office of Planning, Research and Evaluation (HHS/ACF/OPRE) facilitates the matching program and is not a source or recipient of data used in the matching program.
Sections 402, 1137, and 1903(r) of the Social Security Act (42 U.S.C. 602, 1320b-7, and 1396b(r)).
This matching program identifies individuals receiving both Federal compensation (pay or pension benefits) and public assistance benefits under Federal benefit programs administered by the states and verifies public assistance clients' declarations of income circumstances.
Each participating State Public Assistance Agency (SPAA) will provide the Department of Defense, Defense Manpower Data Center (DMDC) with finder files containing identifying and other data about public assistance applicants or recipients (clients), which DMDC will match against DoD military and civilian pay files, military retired pay files, and survivor pay files (Office of Personnel Management (OPM) civilian retired and survivor pay files will not be used). DMDC will return matched data to the SPAA, which the SPAA will use to verify clients' continued eligibility to receive public assistance benefits under HHS' Medicaid and Temporary Assistance for Needy Families (TANF) programs and the Department of Agriculture's Supplemental Nutrition Assistance Program (SNAP) and, if ineligible, to take such action as may be authorized by law and regulation to ensure fair and equitable treatment in the delivery of benefits attributable to funds provided by the Federal Government. HHS will support each SPAA's efforts to participate in the matching program by assisting with finalizing the terms of the agreement and coordinating signatures on the agreement.
The categories of individuals whose information is involved in the matching program are:
• Individuals who apply for or receive public assistance benefits under Federal programs administered by the states (
• Individuals who receive compensation from the DoD (
The categories of records involved in the matching program are public assistance client identifying information and Federal pay and pension data.
A SPAA will provide the following data elements to DMDC about each public assistance client:
• Client social security number (SSN), client last name, first name, client date of birth, address, gender, marital status, information regarding the specific public assistance benefit being received, file date, state name, state optional data, client location code, and case number.
DMDC will provide the SPAA with match results containing the following data elements about any public assistance client who is receiving compensation from DoD:
• SSN; state data; record type; file date; date of birth; last name; first name; middle name; suffix name; sex; gross pay; unit identification (ID) code (UIC); agency; pay plan; pay grade; pay step; basic salary; state residence; Federal taxable wages; Federal tax withheld; state taxable wages; state tax withheld; employee status code; payroll office number; personnel office ID; pay basic code; pay period end date (YYYYMMDD); disbursing date (YYYYMMDD); pay status; category code; total base pay all drills; marital status code; dependents quantity; off duty military code; welfare to work hire code; city; state; zip; address lines 1, 2, 3, 4, 5 and 6; mailing address effective; claim number; retired pay entitlement effective; comments 1, 2, 3 and 4; and member SSN.
The DoD data used in this matching program will be disclosed from the following system of records, as authorized by routine use 16 published March 11, 2019: DMDC 01, titled “Defense Manpower Data Center Data Base,” last published in full at 84 FR 6383 (Feb. 27, 2019), and modified at 84 FR 8698 (Mar. 11, 2019) and 84 FR 15605 (Apr. 16, 2019).
Food and Drug Administration, HHS.
Notice.
The Director of the Center for Drug Evaluation and Research (Center Director) at the Food and Drug Administration (FDA or Agency) is proposing to refuse to approve a new drug application (NDA) submitted by Intarcia Therapeutics, Inc. (Intarcia), for ITCA 650 (exenatide in DUROS device) in its present form. This notice summarizes the grounds for the Center Director's proposal and offers Intarcia an opportunity to request a hearing on the matter.
Submit either electronic or written requests for a hearing by October 4, 2021; submit data, information, and analyses in support of the hearing and any other comments by November 1, 2021.
You may submit hearing requests, documents in support of the hearing, and any other comments as follows. Please note that late, untimely filed requests and documents will not be considered. Electronic requests for a hearing must be submitted on or before October 4, 2021; electronic documents in support of the hearing and any other comments must be submitted on or before November 1, 2021. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Kevin Fain, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6419, Silver Spring, MD 20993, 301-796-5842,
Intarcia submitted NDA 209053 for ITCA 650 (exenatide in DUROS device), a drug-device combination product intended to deliver the active ingredient exenatide, a GLP-1 receptor agonist (RA), on November 21, 2016, under section 505(b)(1) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355(b)(1)). Intarcia proposed that ITCA 650 be indicated as an adjunct to diet and exercise to improve glycemic control in adults with type 2 diabetes mellitus (T2DM).
On September 21, 2017, the former Division of Metabolism and Endocrinology Products (DMEP), Office of Drug Evaluation II (now the Division of Diabetes, Lipid Disorders, and Obesity, within the Office of Cardiology, Hematology, Endocrinology and Nephrology (OCHEN)) in the Office of New Drugs (OND) in FDA's Center for Drug Evaluation and Research (CDER), issued a complete response letter to Intarcia under § 314.110(a) (21 CFR 314.110(a)) stating that NDA 209053 could not be approved in its present form, describing the specific deficiencies and, where possible, recommending ways that Intarcia might remedy these deficiencies. On September 9, 2019, Intarcia resubmitted the NDA under section 505(b)(1) of the FD&C Act. On March 9, 2020, the former DMEP issued a second complete response letter stating that NDA 209053 could not be approved in its present form, describing the specific deficiencies and, where possible, recommending ways that Intarcia might remedy these deficiencies. These deficiencies, which are summarized below, include the following:
1. The clinical trial data demonstrated that ITCA 650 causes acute kidney injury (AKI).
a. A signal of AKI was evident in the pivotal phase 3 trials of the ITCA 650 clinical development program. A standardized Medical Dictionary for Regulatory Activities query for acute renal failure identified reports of AKI serious adverse events in 14 subjects (0.6 percent) who received ITCA 650 versus 4 subjects (0.2 percent) who received placebo.
b. The magnitude of the AKI risk was greater for ITCA 650 than for the marketed exenatide products or for other members of the GLP-1 RA class. Although other drugs in the GLP-1 RA class have a risk of AKI, this information is based on spontaneous postmarketing adverse event reports. The risk of AKI was not detected in the clinical trials that supported the approval of these drugs. In contrast, the risk of AKI was clearly identified in the ITCA 650 clinical trial data. This AKI risk for ITCA 650, compared to other members of the GLP-1 RA class, is particularly concerning because it was identified from these adequate and well-controlled clinical trials, which constitute stronger evidence for assessing a drug's safety than spontaneous postmarketing adverse event reports.
c. AKI events experienced by participants who received ITCA 650 sometimes resulted in prolonged hospitalization; complications observed in association with AKI events included dialysis and death.
d. A majority of the serious AKI events in participants randomized to ITCA 650 appeared to be associated with vomiting, diarrhea, and dehydration, which are known adverse
e. Intarcia's proposed risk mitigation measures were inadequate and sufficient risk mitigation approaches could not be identified for the AKI risk identified in the clinical trial data, particularly because serious AKI events occurred in participants who received ITCA 650 who did not have known risk factors (moderate to severe renal impairment or use of concomitant medications that increase the risk of AKI) and serious AKI events were observed with use of both the nominal initial/reduced dose ITCA 650, 20 micrograms (mcg)/day, and the nominal maintenance dose ITCA 650, 60 mcg/day.
2. The cardiovascular risk assessment failed to provide sufficient assurance that ITCA 650 is not associated with excess cardiovascular (CV) risk. Rather, the clinical trial data suggested that ITCA 650 may be associated with an increased risk for major adverse cardiovascular events (MACE), defined as myocardial infarction, nonfatal stroke, and cardiovascular death.
a. A prespecified meta-analysis incorporated the data from clinical trials CLP-103, CLP-105, and CLP-107, and included 181 MACE and unstable angina (UA) events. An unfavorable point estimate of 1.12 was observed [hazard ratio (HR) for MACE + UA; 1.12 (95 percent confidence interval (CI): 0.83, 1.51)].
b. Furthermore, estimates of CV risk from the meta-analysis were notably higher and nominally statistically significant in the subgroup of participants 65 years of age or older [HR for MACE + UA; 1.67 (95 percent CI: 1.02, 2.71)]. Subgroup analyses also suggested an interaction between CV risk and baseline renal function, where the HR estimates trended higher with worse renal function.
c. The CV risk analyses from trial CLP-107 augmented the concern that the drug is associated with a higher risk for MACE. CLP-107 was a randomized, double-blind, placebo-controlled cardiovascular outcomes trial (CVOT) conducted in a patient population at high risk of MACE. CLP-107 contributed 174 of the 181 total MACE + UA events observed in the CV risk meta-analysis. In CLP-107, the assessment of product-related CV risk yielded an HR for MACE of 1.24 (95 percent CI: 0.90, 1.70).
d. This CV risk resulting from ITCA 650 use is particularly concerning when compared to the beneficial effect of other drugs in this class on CV outcomes. In contrast to the unfavorable CVOT results for ITCA 650, some other GLP-1 RA products carry indications for MACE risk reduction in patients with T2DM based on favorable results of CVOTs. The MACE HR observed in a CVOT conducted for another formulation of exenatide was 0.91 (95 percent CI: 0.83, 1.0). The lower bound of the CLP-107 confidence interval (0.90) nearly excludes the point estimate for MACE risk observed with this other product (0.91), suggesting a true difference in MACE risk between the products.
3. The data provided to validate the limits of the in vitro dose delivery specifications did not support the safe and effective use of the device constituent of ITCA 650.
a. The device design validation data did not support the proposed daily, weekly, and biweekly in vitro drug-release specifications as appropriate for the intended use.
b. The in vitro device performance data demonstrated inconsistent day-to-day drug delivery and did not support that weekly and biweekly in vitro drug-release testing is adequate to ensure controlled in vivo drug release by the device constituent of ITCA 650.
4. The data provided, inclusive of delivery performance data and failure analyses, did not demonstrate adequate device reliability associated with in vitro dose delivery to support safety and effectiveness for the intended use.
a. Variability in the daily in vitro drug-release data did not support the use of weekly and biweekly averages to calculate device failure rates.
b. The failure rate data was inadequate to support the safety and effectiveness of the device constituent of ITCA 650.
c. The sponsor provided inadequate mitigation strategies to reduce device failures.
5. The information provided, including the following, was inadequate in support of sterility assurance for ITCA 650:
a. The container-closure integrity test data provided to support integrity of a container-closure system used for sterile intermediate storage of sterile components of ITCA 650.
b. Information regarding the product-contact filling equipment used for commercial manufacturing of ITCA 650.
c. Information provided to support the routine depyrogenation process for components of the primary container-closure system for ITCA 650.
d. The method suitability data provided to support the proposed routine endotoxins test method with ITCA 650.
6. An FDA inspection of the Intarcia manufacturing facility identified deficiencies with the manufacturing practices for ITCA 650 that were not adequately addressed.
a. Controls were inadequate to ensure empty devices would not be included in the final release of ITCA 650.
b. Qualification of the filling line with an original or new manifold was not performed.
c. The results and reports of the process simulation test, used to demonstrate the effectiveness of preventing microbiological contamination of ITCA 650, were not provided.
The complete response letters issued on September 21, 2017, and March 9, 2020, both stated that to address the clinical deficiencies, Intarcia should address all the specific device and product quality-related deficiencies and provide additional clinical data that adequately address the clinical risks and establish that ITCA 650 is safe and effective for the intended use. The complete response letters stated that Intarcia is required either to resubmit the application, fully addressing all deficiencies listed in the letter, or take other actions available under § 314.110 (
Intarcia submitted a formal dispute resolution request (FDRR) on June 5, 2020, concerning the complete response letter issued on March 9, 2020, by the former DMEP. Ellis Unger, Director of OND's OCHEN, denied the FDRR by correspondence dated July 30, 2020, based on his determination that the drug's unexpected numeric imbalance in cases of serious AKI, the MACE observed in the CVOT, and device-related deficiencies regarding exenatide release rates over the life of the product outweighed the benefit in reductions in Hemoglobin A1c. Intarcia submitted another FDRR on August 14, 2020, for review of the OCHEN denial. Robert Temple, Senior Advisor to OND, denied the second FDRR on behalf of OND by correspondence dated October 30, 2020,
On March 16, 2021, Intarcia submitted a request for an opportunity for a hearing under § 314.110(b)(3) on whether there are grounds under section 505(d) of the FD&C Act for denying approval of NDA 209053.
For the reasons stated above and as explained in further detail in the March 9, 2020, complete response letter and the February 12, 2021, November 27, 2020, and July 30, 2020, FDRR denials, notice is given to Intarcia and all other interested persons that the Center Director proposes to issue an order refusing to approve NDA 209053 on the grounds that the application fails to meet the criteria for approval under section 505(d) of the FD&C Act, including the following: (1) Data submitted in the application do not show that the product would be safe under the proposed conditions of use (section 505(d)(2) of the FD&C Act) and (2) the methods used in, and the facilities and controls used for, the manufacture, processing, or packing of the product are not shown to be adequate to preserve its identity, strength, quality, and purity (section 505(d)(3) of the FD&C Act).
Intarcia may request a hearing before the Commissioner of Food and Drugs (the Commissioner) on the Center Director's proposal to refuse to approve NDA 209053. If Intarcia decides to seek a hearing, it must file: (1) A written notice of participation and request for a hearing (see the
As stated in § 314.200(g), a request for a hearing may not rest upon mere allegations or denials, but must present specific facts showing that there is a genuine and substantial issue of fact that requires a hearing to resolve. We note in this regard that because CDER proposes to refuse to approve NDA 209053 based on the multiple deficiencies summarized above, any hearing request from Intarcia must address all of those deficiencies. Failure to request a hearing within the time provided and in the manner required by § 314.200 constitutes a waiver of the opportunity to request a hearing. If a hearing request is not properly submitted, FDA will issue a notice refusing to approve NDA 209053.
The Commissioner will grant a hearing if there exists a genuine and substantial issue of fact or if the Commissioner concludes that a hearing would otherwise be in the public interest (§ 314.200(g)(6)). If a hearing is granted, it will be conducted according to the procedures provided in 21 CFR parts 10 through 16 (21 CFR 314.201).
Paper submissions under this notice of opportunity for a hearing should be filed in one copy, except for those submitted as “Confidential Submissions” (see “Written/Paper Submissions” and “Instructions”). Except for data and information prohibited from public disclosure under 21 U.S.C. 331(j) or 18 U.S.C. 1905, submissions may be seen in the Dockets Management Staff Office between 9 a.m. and 4 p.m., Monday through Friday, and on the internet at
Notice is hereby given that I have delegated to the Food and Drug Administration (FDA) Commissioner of Food and Drugs (Commissioner), the authority vested in the Secretary to issue all regulations of the FDA. This includes authority to issue regulations pursuant to the Federal Food, Drug, and Cosmetic Act (FD&C Act), applicable portions of the Public Health Service Act (PHS Act), and other authorities governing functions of the FDA. This authority may be re-delegated by the Commissioner.
On September 15, 2020, the Secretary of Health and Human Services (HHS) issued a memorandum (“September 15 Memorandum”) to the HHS Heads of Operating and Staff Divisions that reserved to the Secretary “the authority to sign and issue any rule for which notice and comment would normally be required, irrespective of whether notice and comment is waived.” The September 15 Memorandum further stated that it rescinded “any prior delegation of rulemaking authority” to the Operating Divisions, including FDA. This delegation revokes the September 15 Memorandum as it applies to FDA and reinstates any delegations to FDA rescinded by the September 15 Memorandum.
This delegation shall be exercised in accordance with the Department's applicable policies, procedures, and guidelines. For internal Department management purposes, this delegation is subject to certain reservations of authority for the Secretary to approve FDA regulations. Specifically, the Secretary reserves the authority to approve regulations of FDA, except regulations to which sections 556 and 557 of Title 5 U.S.C. apply, which (1) establish procedural rules applicable to a general class of foods, drugs, cosmetics, medical devices, tobacco products, or other subjects of regulation; or (2) present highly significant public issues involving the quality, availability, marketability, or cost of one or more foods, drugs, cosmetics, medical devices, tobacco products, or other subjects of regulation. The delegation does not preclude the Secretary from approving a regulation, or being notified in advance of an action, to which section 556 and 557 of Title 5 U.S.C. apply, which meets one of the above-referenced criteria. This reservation of authority is intended only to improve the internal management of the Department of Health and Human Services, and it is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, the Department of Health and Human Services, the FDA, any Agency, officer, or employee of the United States, or any person. Regulations issued by FDA without the approval of the Secretary are to be conclusively viewed as falling outside the scope of this reservation of authority.
This delegation became effective upon the date of signature. In addition, I hereby affirm and ratify any actions
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.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine or Oral Fluid (Mandatory Guidelines).
Anastasia Donovan, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N06B, Rockville, Maryland 20857; 240-276-2600 (voice);
In accordance with Section 9.19 of the Mandatory Guidelines, a notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITFs) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) using Urine and of the laboratories currently certified to meet the standards of the Mandatory Guidelines using Oral Fluid.
The Mandatory Guidelines using Urine were first published in the
The Mandatory Guidelines using Oral Fluid were first published in the
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71 and allowed urine drug testing only. The Mandatory Guidelines using Urine have since been revised, and new Mandatory Guidelines allowing for oral fluid drug testing have been published. The Mandatory Guidelines require strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on specimens for federal agencies. HHS does not allow IITFs to conduct oral fluid testing.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines using Urine and/or Oral Fluid. An HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that the test facility has met minimum standards. HHS does not allow IITFs to conduct oral fluid testing.
In accordance with the Mandatory Guidelines using Oral Fluid dated October 25, 2019 (84 FR 57554), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on oral fluid specimens:
At this time, there are no laboratories certified to conduct drug and specimen validity tests on oral fluid specimens.
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
In accordance with the Mandatory Guidelines using Urine dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Coast Guard, Homeland Security (DHS).
Notice of availability.
The Coast Guard announces the availability of change 2 to Navigation and Vessel Inspection Circular (NVIC) 02-18, Guidelines on Qualification for STCW Endorsements as Officer in Charge of a Navigational Watch of Vessels of Less Than 500 GT. This NVIC provides guidance to mariners concerning regulations governing endorsements to Merchant Mariner Credentials for service on vessels of less than 500 Gross Tons (GT) (
The policies announced in Change-2 to NVIC 02-18 are effective as of August 26, 2021.
To view documents and CH-2 NVIC 02-18 mentioned in this notice, search the docket number USCG-2021-0407 using the Federal eRulemaking Portal at
For information about this document, contact the James Cavo, Mariner Credentialing Program Policy Division (CG-MMC-2), Coast Guard; telephone 202-372-1205; email
NVIC 02-18 describes the Coast Guard's policy for merchant mariners to qualify for and renew Standards of Training, Certification and Watchkeeping for Seafarers (STCW) endorsements to Merchant Mariner Credentials under 46 CFR 11.319 for service as officer in charge of a navigational watch (OICNW) on vessels of less than 500 GT upon all waters (
As specified in § 11.319(a)(2), mariners must obtain at least six months of service performing bridge watchkeeping duties. This section also limits the amount of service in a rating capacity that can be used to meet this requirement to not more than 6 months of experience, which is accepted as a maximum of three months of creditable service. The mariner would have to obtain three additional months of service performing bridge watchkeeping duties in a non-rating capacity, such as an officer capacity. The OICNW of vessels less than 500 GT is considered a first certificate of competence, in that it may be the first STCW officer endorsement a mariner obtains, mariners typically qualify by serving as a rating such as able seaman. It is often impossible for these mariners to meet the 6 month bridge watchkeeping requirement with the 3 month limit on credible rating service because they cannot serve as an officer to accrue the remaining 3 months of bridge watchkeeping without this OICNW first certificate of competence.
This CH-2 will remedy that barrier to qualifying for the OICNW of vessels less than 500 GT endorsement by not enforcing the 3 month maximum allowable substitution for service as a rating to meet the required service performing bridge watchkeeping duties. This change notice revises NVIC 02-18 to indicate that the Coast Guard will accept, on a day for day basis and without limitation, service in any capacity performing bridge watchkeeping duties under the supervision of an officer holding the STCW endorsement as Master, Chief Mate, or OICNW. Allowing mariners to accrue bridge watchkeeping service in a
We compared the requirements for OICNW of vessels less than 500 GT in 46 CFR 11.319 with those for OICNW of vessels of 500 GT or more in 46 CFR 11.309. For the endorsement for OICNW on vessels 500 GT or more, a mariner can satisfy the bridge watchkeeping requirements with six months of rating service. The OICNW on vessels of 500 GT or more endorsement has no cap on rating sea service and rating service is credited on a day for day basis.
The rating limitation on the OICNW of vessels less than 500 GT was included because of an oversight during development of the final rule “Implementation of the Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, and Changes to National Endorsements” that published on December 24, 2013. (78 FR 77796). The Coast Guard had the three month rating limitation in both §§ 11.309(a)(2) and 11.319(a)(2) in the notice of proposed rulemaking (74 FR 59354, Nov. 17, 2009) and supplemental notice of proposed rulemaking (76 FR 45908, Aug. 11, 2011). In the final rule, the Coast Guard removed the limitation in § 11.309(a)(2) for endorsements as OICNW for 500 GT or more stating we “revise[d] section to reduce redundant language from other sections of this subpart.” (79 FR at 77799). However, the Coast Guard neglected to make the same change to 46 CFR 11.319(a)(2) for the lower tonnage regulation for OICNW of vessels less than 500 GT.
The rating limitation was carried over from previous editions of the regulatory text, but was not intended to be a limit on either of the STCW OICNW endorsements. It is unnecessarily burdensome to limit the rating capacity bridge watchkeeping to three months in the endorsement that is that is for a lesser tonnage.
For these reasons, the Coast Guard will not enforce the limitation on the rating capacity service in 11.319(a)(2), as reflected in CH-2 to NVIC 02-18 Guidelines on Qualification for STCW Endorsements as Officer in Charge of a Navigational Watch of Vessels of Less Than 500 GT.
This notice is issued under authority of 5 U.S.C. 552(a).
Coast Guard, Department of Homeland Security.
Notice of federal advisory committee meeting.
The National Navigation Safety Advisory Committee (Committee) will meet in Portsmouth, Virginia to discuss matters relating to maritime collisions, rammings, and groundings; Inland Rules of the Road; International Rules of the Road; navigation regulations and equipment; routing measures; marine information; and aids to navigation systems. The meeting will be open to the public.
The meeting will be held at the Renaissance Portsmouth-Norfolk Waterfront hotel, 425 Water Street, Portsmouth, VA 23704.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the individual listed in the
Mr. George Detweiler, Alternate Designated Federal Officer of the National Navigation Safety Advisory Committee, telephone (202) 372-1566, or email
Notice of this meeting is in compliance with the
The agenda for the September 21, 2021 is as follows:
The agenda for September 22, 2021 meetings is as follows:
A copy of all meeting documentation will be available, by September 15, 2021, by going to the Coast Guard Homeport website,
A public comment period will be held during each Subcommittee and full Committee meeting concerning matters being discussed. Speakers are requested to limit their comments to 5 minutes. Please note that the public comment period will end following the last call for comments. Contact the individual listed in the
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
Notice of Federal Advisory Committee Act (FACA) meeting; request for comments.
CISA announces a public meeting of the President's National Infrastructure Advisory Council (NIAC). To facilitate public participation, CISA invites public comments on the agenda items and any associated briefing materials to be considered by the council at the meeting.
The meeting will be held remotely via conference call. For access to the conference call bridge, information on services for individuals with disabilities, or to request special assistance to participate, please email
Comments identified by docket number CISA-2021-0015 may be submitted by any of the following methods:
•
•
Rachel Liang,
The NIAC is established under Section 10 of E.O. 13231 issued on October 16, 2001. Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. appendix (Pub. L. 92-463). The NIAC shall provide the President, through the Secretary of Homeland Security, with advice on the security and resilience of the Nation's critical infrastructure sectors.
Requests to attend via conference call will be accepted and processed in the order in which they are received. Individuals may register to attend the NIAC meeting by phone by sending an email to
While this meeting is open to the public, participation in FACA deliberations are limited to council members. A public comment period will be held during the meeting from approximately 2:35 p.m.-2:45 p.m. EDT. Speakers who wish to comment must register in advance and can do so by emailing
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, please contact
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 9, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of Copan Italia S.p.A. of Brescia, Italy and Copan Industries, Inc. of Aguadilla, Puerto Rico. Supplements to the Complaint were filed on August 16, 2021, August 19, 2021, and August 20, 2021. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain flocked swabs, products containing flocked swabs, and methods of using same by reason of infringement of certain claims of U.S. Patent No. 9,011,358 (“the '358 Patent”); U.S. Patent No. 9,173,779 (“the '779 Patent”); and U.S. Patent No. 10,327,741 (“the '741 Patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainants request that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1, 6-9, 11-14, 16-19, and 21-22 of the '358 patent; claims 1, 4-6, 8, 9, 11-13, 16-20, and 22-24 of the '779 patent; and claims 1, 3, 5, 7-10, 18, and 20 of the '741 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “flocked swabs, such as nasopharyngeal swabs, and kits containing flocked swabs, that are used in the collection, sampling, or testing of and for infectious diseases such as influenza, SARS-CoV-2 (the coronavirus that causes COVID-19), and other diseases”;
(3) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(4) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(5) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainants of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 28, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of Zebra Technologies Corporation of Lincolnshire, Illinois. A supplement to the complaint was filed on August 13, 2021. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain radio frequency transmission devices and components thereof by reason of infringement of certain claims of U.S. Patent No. 6,895,219 (“the '219 patent”) and U.S. Patent No. 7,683,788 (“the '788 patent”). The complaint further alleges that an industry in the United States exists or is in the process of being established as required by the applicable Federal Statute. The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and a cease and desist order.
The complaint, as supplemented, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Katherine Hiner, Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1, 3-8, and 10, 11, and 13-16 of the '219 patent and claims 17-19 of the '788 patent, and whether an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is (i) “RF transmission devices generally capable of transmitting and receiving data; and (ii)
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Zebra Technologies Corporation, 3 Overlook Point, Lincolnshire, IL 60069.
(b) The respondent is the following entities alleged to be in violation of section 337, and is the party upon which the complaint is to be served: OnAsset Intelligence, Inc., 8407 Sterling Street, Irving, TX 75063.
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations is not participating as a party in this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondent in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 28, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of Causam Enterprises, Inc. of Raleigh, North Carolina. A supplement to the complaint was filed on August 16, 2021. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain smart thermostats, load control switches, and components thereof by reason of infringement of one or more claims of U.S. Patent No. 8,805,552 (“the '5,552 patent”), U.S. Patent No. 9,678,522 (“the '8,522 patent”), U.S. Patent No. 10,394,268 (“the '268 patent”), and U.S. Patent No. 10,396,592 (“the '592 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Katherine Hiner, Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1-9, 16, 19-21, 23-28, and 30 of the '5,552 patent, claims 1-8, 10, 13-17, 19-23, and 25-29 of the '8,522 patent, claims 1-11, 13-16, and 18-19 of the '268 patent, and claims 1-2, 8-9, 11, 13-14, and 17 of the '592 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “smart thermostats and load control switches with Demand Response functionality and components thereof”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the amended complaint is to be served:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations is not a party to this investigation.
Responses to the amended complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainant of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the amended complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the amended complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Drug Enforcement Administration, Department of Justice.
Notice with request for comments.
The Drug Enforcement Administration proposes to adjust the 2021 aggregate production quotas for several controlled substances in schedules I and II of the Controlled Substances Act and assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine.
Interested persons may file written comments on this notice in accordance with 21 CFR 1303.13(c) and 1315.13(d). Electronic comments must be submitted, and written comments must be postmarked, on or before October 4, 2021. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
Based on comments received in response to this notice, the Administrator may hold a public hearing on one or more issues raised. In the event the Administrator decides in her sole discretion to hold such a hearing, the Administrator will publish a notice of any such hearing in the
To ensure proper handling of comments, please reference “Docket No. DEA-688A” on all correspondence, including any attachments. DEA encourages that all comments be submitted electronically through the Federal eRulemaking Portal which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
Scott A. Brinks, Regulatory Drafting and Policy Support Section, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152, Telephone: (571) 776-2265.
Please note that all comments received in response to this docket are considered part of the public record. They will, unless reasonable cause is given, be made available by the Drug Enforcement Administration (DEA) for public inspection online at
The Freedom of Information Act applies to all comments received. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be made publicly available, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want made publicly available in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also
Comments containing personal identifying information or confidential business information identified and located as directed above will generally be made available in redacted form. If a comment contains so much confidential business information or personal identifying information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to
An electronic copy of this document is available at
Section 306 of the Controlled Substances Act (CSA) (21 U.S.C. 826) requires the Attorney General to establish aggregate production quotas for each basic class of controlled substance listed in schedules I and II and for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine. The Attorney General has delegated this function to the Administrator of DEA pursuant to 28 CFR 0.100.
DEA established the 2021 aggregate production quotas for substances in schedules I and II and the assessment of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine on November 30, 2020 (85 FR 76604). That order stipulated that, in accordance with 21 CFR 1303.13 and 1315.13, all aggregate production quotas and assessments of annual need are subject to adjustment.
DEA proposes to adjust the established 2021 aggregate production quotas to be manufactured in the United States in 2021 to provide for the estimated medical, scientific, research, and industrial needs of the United States, for lawful export requirements, and for the establishment and maintenance of reserve stocks. These quotas do not include imports of controlled substances for use in industrial processes. However, DEA's analysis does not suggest the need for adjustment of the 2021 assessment of annual needs for the List I chemicals.
In determining the proposed adjustments, the Administrator has taken into account the criteria in accordance with 21 CFR 1303.13 (adjustment of aggregate production quotas for controlled substances) and 21 CFR 1315.13 (adjustment of the assessment of annual needs for ephedrine, pseudoephedrine, and phenylpropanolamine). The Administrator is authorized to increase or reduce the aggregate production quota at any time. 21 CFR 1303.13(a) and 1315.13(a). DEA regulations state that there are five factors that shall be considered in determining to adjust the aggregate production quota and the assessment of annual needs. 21 CFR 1303.13(b) and 1315.13(b).
DEA determined whether to propose an adjustment of the aggregate production quotas and assessment of annual needs for 2021 by considering the factors summarized below:
(1) Changes in the demand for that class or chemical, changes in the national rate of net disposal of the class or chemical, changes in the national rate of net disposal of the class or chemical by registrants holding individual manufacturing quotas for that class or chemical, and changes in the extent of any diversion in the class of controlled substance;
(2) whether any increased demand for that class or chemical, the national and/or individual rates of net disposal of that class or chemical are temporary, short term, or long term;
(3) whether any increased demand for that class or chemical can be met through existing inventories, increased individual manufacturing quotas, or increased importation, without increasing the aggregate production quota or assessment of annual needs, taking into account production delays and the probability that other individual manufacturing quotas may be suspended pursuant to Sec. 1303.24(b) and 1315.24(b);
(4) whether any decreased demand for that class or chemical will result in excessive inventory accumulation by all persons registered to handle that class or chemical (including manufacturers, distributors, practitioners, importers, and exporters), notwithstanding the possibility that individual manufacturing quotas may be suspended pursuant to Sec. 1303.24(b) and 1315.24(b) or abandoned pursuant to Sec. 1303.27 and 1315.27; and
(5) other factors affecting medical, scientific, research, and industrial needs in the United States, lawful export requirements, and other factors affecting importation needs of listed chemicals in the United States as the Administrator finds relevant, including changes in the currently accepted medical use in treatment with the class or the substances which are manufactured from it, the economic and physical availability of raw materials for use in manufacturing and for inventory purposes, yield and stability problems, potential disruptions to production (including possible labor strikes), and recent unforeseen emergencies such as floods and fires. 21 CFR 1303.13(b) and 1315(b).
DEA considered the change in the extent of diversion of all controlled substances in proposing adjustments to the aggregate production quotas as required by 21 CFR 1303.13(b)(1). Pursuant to these factors, DEA has determined that any calculated changes from the previously determined initial calculations are slight and not statistically significant from the quantities originally calculated for the extent of diversion that were applied to the initial aggregate production quota valuations.
DEA also considered updated information obtained from 2020 year-end inventories, 2020 disposition data submitted by quota applicants, estimates of the medical needs of the United States, product development, and other information made available to DEA after the initial aggregate production quotas and assessment of annual needs had been established. Other factors the Administrator considered in calculating the aggregate production quotas, but not the assessment of annual needs, include product development requirements of both bulk and finished dosage form manufacturers, and other pertinent information.
In evaluating whether there is a need for adjustment of the 2021 assessment of annual needs for List I chemicals, DEA used the calculation methodology previously described in the 2010 and 2011 assessment of annual needs (74 FR 60294, Nov. 20, 2009, and 75 FR 79407, Dec. 20, 2010, respectively). However, DEA's analysis does not suggest the need for adjustment of the 2021 assessment of annual needs.
Pursuant to 21 U.S.C. 826(a)(1), “production quotas shall be established in terms of quantities of each basic class of controlled substance and not in terms of individual pharmaceutical dosage forms prepared from or containing such a controlled substance.” However, the Substance Use-Disorder Prevention that Promotes Opioid Recovery Treatment for Patients and Communities Act of 2018 (SUPPORT Act), (Pub. L. 115-271), provides an exception to that general rule by now giving DEA the authority to establish quotas in terms of pharmaceutical dosage forms if the
DEA has stated before that while there is the authority to set aggregate production quotas in terms of pharmaceutical dosage form, DEA will not be using that authority at this time. Furthermore, when DEA does utilize the authority, it will be doing so at the individual dosage-form manufacturing level, as that is where it is most appropriate to do so. As such, there are no adjustments to set any controlled substances in terms of pharmaceutical dosage forms.
Under the SUPPORT Act, when setting the aggregate production quota, DEA must estimate the amount of diversion of any substance that is considered a “covered controlled substance,” as defined by the SUPPORT Act. 21 U.S.C. 826(i)(1)(A). The covered controlled substances are fentanyl, oxycodone, hydrocodone, oxymorphone, and hydromorphone. The SUPPORT Act also requires DEA to “make appropriate quota reductions, as determined by the [Administrator],
In February 2021, DEA sent letters to the Centers for Disease Control and Prevention (CDC), Centers for Medicare and Medicaid Services (CMS), and the states requesting overdose death and overprescribing data that could be considered for estimating diversion. DEA did not receive information from CMS. However, DEA did receive information from the CDC in June 2021 and has started to receive information from the states. DEA has begun to receive Prescription Drug Monitoring Program (PDMP) data from the states in a format that will allow the Agency to develop a more robust methodology to assist in the determination of the diversion estimate in the future. This information will be considered in determining the estimates of diversion for the five covered controlled substances in the Proposed Aggregate Production Quotas for Schedule I and II Controlled Substances and Assessment of Annual Needs for the List I Chemicals Ephedrine, Pseudoephedrine, and Phenylpropanolamine for 2022.
To update the estimates of diversion, DEA used data from the Drug Theft and Loss Report, Statistical Management Analysis & Reporting Tools System (SMARTS), and System to Retrieve Information on Drug Evidence (STRIDE) databases to aggregate the active pharmaceutical ingredient (API) of each covered controlled substance by metric weight. From the databases, DEA gathered data involving employee theft, break-ins, armed robberies, and material lost in transit. DEA also used seizure data obtained from reports submitted by law enforcement agencies nationwide. This data was categorized by basic drug class and the amount of API in the dosage form was delineated with an appropriate metric for use in proposing the adjusted aggregate production quota values. Using the data, DEA calculated the estimates for the amount of diversion by multiplying the strength of the API listed for each finished dosage form by the total amount of units reported to estimate the metric weight in grams of the controlled substance being diverted. Below, DEA has updated the chart to include estimations of diversion for each of the covered controlled substances.
DEA considered the change in the extent of diversion of all controlled substances in proposing adjustments to the aggregate production quotas as required by 21 CFR 1303.13(b)(1). Pursuant to these factors, DEA has determined that any calculated changes from the previously determined initial calculations are slight and not statistically significant from the quantities originally calculated for the extent of diversion that were applied to the initial aggregate production quota valuations.
DEA is proposing significant increases to the APQs of the schedule I substances psilocybin, psilocin, marihuana, and marihuana extract, which are directly related to increased interest by DEA registrants in the use of hallucinogenic controlled substances for research and clinical trial purposes. DEA firmly believes in supporting regulated research of schedule I controlled substances. Therefore, the APQ increases reflect the need to fulfill research and development requirements in the production of new drug products, and the study of marijuana effects in particular, as necessary steps toward potential Food and Drug Administration (FDA) approval of new drug products.
The DEA established the 2021 aggregate production quotas for substances in schedules I and II on November 30, 2020 (85 FR 76604). Subsequent to that publication, DEA published in the
On March 1, 2021, DEA published a temporary scheduling order placing Brorphine in schedule I of the CSA (86 FR 11862), making all regulatory controls pertaining to schedule I controlled substances applicable to the manufacture of these substances, including the requirement to establish an aggregate production quota pursuant to 21 U.S.C. 826 and 21 CFR part 1303. This notice proposes to establish an aggregate production quota for this substance.
On May 7, 2021, DEA published an interim final rule placing serdexmethylphenidate, a component in a combination drug product recently approved by FDA for the treatment of ADHD in patients six years of age and older, in schedule IV of the CSA (86 FR 24487). Serdexmethylphenidate is manufactured from methylphenidate, a schedule II controlled substance. In order to more accurately estimate and manage the quantity of methylphenidate necessary for direct formulation into schedule II drug products versus the
On June 20, 2021, DEA published the final rule to place oliceridine, a medication recently approved by FDA for medical use as an intravenous drug for the management of acute pain severe enough to require an intravenous opioid analgesic and for patients for whom alternative treatments are inadequate, in schedule II of the CSA effective July 12, 2021 (86 FR 30772). The placement of oliceridine in schedule II of the CSA, makes all regulatory controls pertaining to schedule II controlled substances applicable to the manufacture of this substance, including the requirement to establish an aggregate production quota pursuant to 21 U.S.C. 826 and 21 CFR part 1303.
The Administrator, therefore, proposes to adjust the 2021 aggregate production quotas for certain schedule I and II controlled substances. The Administrator does not propose an adjustment to the assessments of annual needs for the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine. The proposed adjusted APQs, as expressed in grams of anhydrous acid or base, are as follows:
The Administrator further proposes that aggregate production quotas for all other schedule I and II controlled substances included in 21 CFR 1308.11 and 1308.12 remain at zero. In accordance with 21 CFR 1303.13 and 21 CFR 1315.13, upon consideration of the relevant factors, the Administrator may adjust the 2021 aggregate production quotas and assessment of annual needs as needed.
After consideration of any comments or objections, or after a hearing, if one is held, the Administrator will issue and publish in the
Office of Federal Contract Compliance Programs, Labor.
Notice.
The U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) collect workforce data through the Employer Information Report (EEO-1) under their Joint Reporting Committee. OFCCP is rescinding its previously issued notice, which stated that OFCCP did not intend to request, accept, or use EEO-1 Component 2 data. The agency has determined that it was premature to issue a notice stating OFCCP did not expect to find significant utility in the data.
This action is effective immediately.
Tina T. Williams, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-1337 (TTY).
OFCCP administers and enforces Executive Order 11246, as amended (E.O. 11246), which applies to Federal contractors and subcontractors. E.O. 11246 prohibits employment discrimination and requires affirmative action to ensure equal employment opportunity regardless of race, color, religion, sex, sexual orientation, gender identity, or national origin. It also prohibits Federal contractors and subcontractors from discriminating against applicants and employees for inquiring about, discussing, or disclosing information about their pay or the pay of their co-workers, subject to certain limitations.
OFCCP and the EEOC have separate legal authority to collect EEO-1 data, and they coordinate collection to promote efficiency through their Joint Reporting Committee. The EEOC's legal authority to collect EEO-1 data from private employers derives from Title VII of the Civil Rights Act, and OFCCP's authority to collect data from certain Federal contractors derives from E.O. 11246 and its implementing regulations.
OFCCP had previously expressed interest in collecting summary compensation data for the purpose of informing its compliance and enforcement efforts. On August 8, 2014, OFCCP published a notice of proposed rulemaking in the
On July 14, 2016, the EEOC published a 30-day notice in the
On August 29, 2017, OMB stayed the EEOC's collection of Component 2 data, and the EEOC proceeded to collect only Component 1 data. Subsequently, the EEOC issued a
On September 12, 2019, the EEOC published a 60-day notice in the
Subsequently, on November 25, 2019, OFCCP published a notice in the
On March 23, 2020, the EEOC published the 30-day notice indicating that it would not seek an extension to continue Component 2 data collection.
OFCCP issued its November 2019 notice stating the agency would not request, accept, or use Component 2 data even before the United States District Court for the District of Columbia deemed the collection of 2017 and 2018 Component 2 data complete in February 2020. At that time, OFCCP had little information about the response rate of the collection, how the data was submitted and assembled, or the completeness of the data. Nor did the agency have the opportunity to review and analyze the data.
Upon further consideration, OFCCP believes the position taken by the agency in the November 2019 notice was premature and counter to the agency's interests in ensuring pay equity. As detailed below, there are substantial reasons to believe that the Component 2 data could be useful to OFCCP's enforcement. Given the effort expended by employers to submit the data and resources devoted by the EEOC and OFCCP in the development of the collection, OFCCP believes it would be valuable to analyze this data to assess its utility for OFCCP's enforcement efforts.
OFCCP intends to devote further agency resources to evaluate the data's utility because the joint collection and analysis of compensation data could improve OFCCP's ability to efficiently and effectively investigate potential pay discrimination.
Institute of Museum and Library Services, National Foundation for the Arts and the Humanities.
Notice, request for comments, collection of information.
The Institute of Museum and Library Services (IMLS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act. This pre-clearance consultation program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The purpose of this Notice is to solicit comments concerning a plan to modify the eligibility criteria and to update performance measurement requirements for Native American Library Services Enhancement Grants. A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the addressee section below on or before October 31, 2021.
Send comments to Connie Bodner, Ph.D., Director of Grants Policy and Management, Office of Grants Policy and Management, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington, DC 20024-2135. Dr. Bodner can be reached by telephone: 202-653-4636, or by email at
Persons who are deaf or hard of hearing (TTY users) can contact IMLS at 202-207-7858 via 711 for TTY-Based Telecommunications Relay Service.
Anthony D. Smith, Associate Deputy Director, Office of Library Services, Discretionary Programs, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington, DC 20024-2135. Mr. Smith can be reached by telephone at 202-653-4716, or by email at
IMLS is particularly interested in public comment that help the agency to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques, or other forms of information technology,
The Institute of Museum and Library Services is the primary source of Federal support for the Nation's libraries and museums. We advance, support, and empower America's museums, libraries, and related organizations through grant making, research, and policy development. To learn more, visit
The Native American Library Services Enhancement Grants program is designed to assist Native American tribes in improving core library services for their communities. The program goals are (1) to improve digital services to support needs for education, workforce development, economic and business development, health information, critical thinking skills, and digital literacy skills; (2) to improve educational programs related to specific topics and content areas of interest to library patrons and community-based users; and (3) to enhance the preservation and revitalization of Native American cultures and languages.
This action is to modify the eligibility criteria and to update performance measurement requirements for Native American Library Services Enhancement Grants. If approved, the program would no longer require applicants to first submit an application to the Native American Library Services Basic Grants program in the same year. This would reduce unnecessary administrative burden for applicants and awardees and allow applicants to choose the grant program(s) best suited to their needs. Updating performance measurement requirements will bring this program into better alignment with other IMLS grant programs and make it easier for applicants to comply.
Institute of Museum and Library Services, National Foundation on the Arts and the Humanities .
Request for information.
This Request for Information (RFI) is intended to gather broad input to assist the Institute of Museum and Library Services (IMLS) in making a determination whether or not to modify the eligibility requirements for the Native American Library Services Enhancement Grants program (Enhancement Grant). Currently, to be eligible for Enhancement Grant funding, an applicant is required to first submit a Native American Library Services Basic Grant (Basic Grant) application in the same year. IMLS is considering the elimination of this specific eligibility requirement to reduce application and administrative burdens for applicants and awardees and to allow applicants to choose the grant program(s) best suited to their needs.
Submit comments on or before Friday, October 29, 2021.
Comments must be submitted to
Both the Enhancement Grants program and the Basic Grants program are designed to assist federally recognized Indian tribes in improving core library services for their communities. See
The Basic Grant program is designed to support library operations and core services, including library workforce training. The Enhancement Grant program is designed to support larger and more complex library projects, including preservation. For the Basic Grant program in Fiscal Year 2021, IMLS expects to award a total of $1,900,000, consisting of 192 individual awards ranging from $6,000 to $10,000. For the Enhancement Grant program, IMLS expects to award a total of $1,200,000, consisting of 20 individual awards ranging from $10,000 to $150,000.
The Basic Grant program is less competitive than the Enhancement Grant program because essentially every eligible Basic Grant applicant receives a grant; whereas Enhancement Grant applications compete against each other and not all applications receive an award. The two programs are also financially interdependent: Funding that is not awarded from the Basic Program pool is then added to the funding available for the Enhancement Program pool. For example, if not all of the FY21 $1,900,000 funding is awarded because IMLS receives fewer Basic Grant applications than anticipated, the balance of unawarded Basic Grant funds will then be made available to the Enhancement Grant funding pool (
The original reason to have a Basic Grant before applying for an Enhancement Grant was to help ensure that all Tribes received at least a basic level of funding before larger, more complex projects were supported.
Eliminating the requirement to first apply for a Basic Grant would make it possible for Tribes to apply for an Enhancement Grant only and still allow them to apply for both an Enhancement Grant and a Basic Grant if they wish. This change is intended to give applicants the flexibility to apply for the grant(s) that best suit their needs.
IMLS invites input from all Tribal communities, including but not limited to individuals, Tribal governments, libraries, archives, museums, institutions of higher education, and cultural heritage centers.
Organizations are strongly encouraged to submit a single response that reflects the views of their organization and membership as a whole.
IMLS asks you to consider the following when reflecting on the proposed elimination of the requirement that Indian tribes wishing to apply for an Enhancement Grant apply first for a Basic Grant in the same year:
• How might the elimination of this requirement benefit the Tribe(s) with which you have close relationships?
• How might the elimination of this requirement harm or result in an unexpected negative consequence for the Tribe(s) with which you have close relationships?
• Taking the potential benefits and negative consequences into account, do you recommend we eliminate or keep the requirement as is?
• What other suggestions do you have for improving these two grant programs?
• What else would you like to see IMLS do to minimize the grant-related administrative burden for its applicants and awardees?
Responses to this RFI are voluntary. Please do not include any personally identifiable information or any information that you do not wish to make public. Proprietary, classified, confidential, or sensitive information should not be included in your response. The Government will use the information submitted in response to this RFI at its discretion. The Government reserves the right to use any submitted information on public websites, in reports, in any possible resultant solicitation(s), grant(s), or cooperative agreement(s), or in the development of future funding opportunity announcements.
This request is for information and planning purposes only and should not be construed as a solicitation or as an obligation on the part of the United States Government. IMLS will not make any awards based on responses to this RFI or pay for the preparation of any information submitted or for the Government's use of such information.
The National Science Board's (NSB) Committee on External Engagement hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business pursuant to the National Science Foundation Act and the Government in the Sunshine Act.
Wednesday, September 8, 2021, from 1:00-2:00 p.m. EDT.
This meeting will be held by teleconference through the National Science Foundation.
Open.
The agenda of the teleconference is to plan NSB engagement activities for the fall and winter.
Point of contact for this meeting is: Nadine Lymn,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Nasdaq Rule 5750 (Proxy Portfolio Shares) to provide for the use of “Custom Baskets” consistent with the exemptive relief issued pursuant to the Investment Company Act of 1940 applicable to a series of Proxy Portfolio Shares. The text of the proposed rule change is provided in Exhibit 5.
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 Exchange proposes to amend Nasdaq Rule 5750 (Proxy Portfolio Shares)
To effectuate this change, the Exchange proposes the following amendments to Nasdaq Rule 5750:
First, the proposed rule change adopts new subparagraph (c)(6) under Nasdaq Rule 5750 (Definitions), which defines “Custom Basket”, for the purposes of Nasdaq Rule 5750, to mean a portfolio of securities that is different from the Proxy Basket and is otherwise consistent with the exemptive relief issued pursuant to the Investment Company Act of 1940 applicable to a series of Proxy Portfolio Shares. The proposed rule change makes conforming amendments to the definition of Proxy Portfolio Shares in Nasdaq Rule 5750(c)(1) and Reporting Authority in Nasdaq Rule 5750(c)(3). The proposed rule change amends the definition of “Proxy Portfolio Share” in Nasdaq Rule 5750(c)(1) to provide for creations of shares in return for a deposit by the purchaser of, and redemptions of shares at a holder's request in return for, a Custom Basket rather than a Proxy Basket to the extent permitted by a fund's exemptive relief.
In addition, the proposed rule change amends the definition of “Reporting Authority” in respect of a particular series of Proxy Portfolio Shares in Nasdaq Rule 5750(c)(3) to provide for Custom Baskets to the extent permitted by a fund's exemptive relief. Currently, “Reporting Authority” in respect of a particular series of Proxy Portfolio Shares means the Exchange, an institution, or a reporting service designated by the Exchange or by the exchange that lists a particular series of Proxy Portfolio Shares (if the Exchange is trading such series pursuant to unlisted trading privileges) as the official source for calculating and reporting information relating to such series, including, but not limited to, the Proxy Basket; the Fund Portfolio; the amount of any cash distribution to holders of Proxy Portfolio Shares, net asset value, or other information relating to the issuance, redemption or trading of Proxy Portfolio Shares. Nasdaq Rule 5750(c)(3) further provides that a series of Proxy Portfolio Shares may have more than one Reporting Authority, each having different functions. The proposed rule change adds “Custom Basket” to the non-exclusive list of information relating to Proxy Portfolio Shares that a Reporting Authority calculates and reports,
Second, the proposed rule change amends Nasdaq Rule 5750(d) (Initial and Continued Listing), which currently provides criteria that Proxy Portfolio Shares must satisfy for initial and continued listing on the Exchange, to incorporate specific initial and continued listing criteria for Custom Baskets. Specifically, Nasdaq Rule 5750(d)(1)(B) currently provides that the Exchange will obtain a representation from the issuer of each series of Proxy Portfolio Shares that the net asset value per share for the series will be calculated daily and that each of the following will be made available to all market participants at the same time when disclosed: The net asset value, the Proxy Basket, and the Fund Portfolio. The proposed rule change adopts an additional requirement in Nasdaq Rule 5750(d)(1)(B) providing that the Exchange will also obtain a representation from the issuer of each series of Proxy Portfolio Shares that the issuer and any person acting on behalf of the series of Proxy Portfolio Shares will comply with Regulation Fair Disclosure under the Act, including with respect to any Custom Basket.
Third, the proposed Rule change amends Nasdaq Rule 5750(d)(2)(A), which currently provides that, with respect to each Proxy Basket, that it will be publicly disseminated at least once daily and will be made available to all market participants at the same time. Nasdaq Rule 5750(d)(2)(A) will be amended to provide that, with respect to each Custom Basket utilized by a series of Proxy Portfolio Shares, each business day, before the opening of trading in the regular market session, the investment company shall make publicly available on its website the composition of any Custom Basket transacted on the previous business day, except a Custom Basket that differs from the applicable Proxy Basket only with respect to cash.
The proposed rule change also makes conforming amendments to Nasdaq Rule 5750(b)(5) and (6). In particular, Nasdaq Rule 5750(b)(5) currently provides that, if the investment adviser to the Investment Company issuing Proxy Portfolio Shares is registered as a broker-dealer or is affiliated with a broker-dealer, such investment adviser will erect and maintain a “fire wall” between the investment adviser and personnel of the broker-dealer or broker-dealer affiliate, as applicable, with respect to access to information concerning the composition of and/or changes to the Fund Portfolio and/or the Proxy Basket. Any person related to the investment adviser or Investment Company who makes decisions pertaining to the Investment Company's Fund Portfolio and/or the Proxy Basket or has access to nonpublic information regarding the Fund Portfolio and/or the Proxy Basket or changes thereto must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the Fund Portfolio and/or the Proxy Basket or changes thereto. The proposed rule change amends Nasdaq Rule 5750(b)(5) to provide for Custom Baskets to the extent permitted by a fund's exemptive relief. As proposed, Nasdaq Rule 5750(b)(5) provides that if the investment adviser to the Investment Company issuing Proxy Portfolio Shares is registered as a broker-dealer or is affiliated with a broker-dealer, such investment adviser will erect and maintain a “fire wall” between the investment adviser and personnel of the broker-dealer or broker-
Nasdaq Rule 5750(b)(6) currently provides that any person or entity, including a custodian, Reporting Authority, distributor, or administrator, who has access to nonpublic information regarding the Fund Portfolio or the Proxy Basket or changes thereto, must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable Fund Portfolio or the Proxy Basket or changes thereto. Moreover, if any such person or entity is registered as a broker-dealer or affiliated with a broker-dealer, such person or entity will erect and maintain a “fire wall” between the person or entity and the broker-dealer with respect to access to information concerning the composition and/or changes to such Fund Portfolio or Proxy Basket. The proposed rule change similarly amends Nasdaq Rule 5750(b)(6) to provide for Custom Baskets to the extent permitted by a fund's exemptive relief. As proposed, Nasdaq Rule 5750(b)(6)provides that any person or entity, including a custodian, Reporting Authority, distributor, or administrator, who has access to nonpublic information regarding the Fund Portfolio, the Proxy Basket, or the Custom Basket, as applicable, or changes thereto, must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the applicable Fund Portfolio, the Proxy Basket, or the Custom Basket, as applicable, or changes thereto. Moreover, if any such person or entity is registered as a broker-dealer or affiliated with a broker-dealer, such person or entity will erect and maintain a “fire wall” between the person or entity and the broker-dealer with respect to access to information concerning the composition and/or changes to such Fund Portfolio, Proxy Basket, or Custom Basket, as applicable.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange believes that proposed rule change to provide for the use of Custom Baskets consistent with the applicable exemptive relief applicable to a series of Proxy Portfolio Shares will perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will permit use of Custom Baskets, consistent with the applicable exemptive relief, in a manner that will benefit investors by increasing efficiencies in the creation and redemption process. More specifically, Custom Baskets provide an issuer with flexibility in portfolio construction that may assist in reducing taxable capital gains distributions for investors and may generally improve tax efficiencies. Further, the use of Custom Baskets, to the extent permitted by a fund's exemptive relief, may also result in narrower bid/ask spreads and smaller premiums and discounts to the net asset value for Proxy Portfolio Shares to the extent that the Investment Company utilizes Custom Baskets with fewer securities which may, in turn, allow Authorized Participants to more efficiently hedge and participate generally in the Proxy Portfolio Shares. In addition to this, the flexibility provided in the creation of Custom Baskets may serve to increase competition between issuers. The Exchange believes the proposed rule change will enhance competition among market participants overall, to the benefit of investors and the marketplace.
The Exchange also believes that amending Nasdaq Rule 5750 to incorporate specific initial listing criteria required to be met by Proxy Portfolio Shares that utilize Custom Baskets is designed to prevent fraudulent and manipulative acts and practices. The Exchange believes that the daily dissemination of the composition of any Custom Basket transacted on the previous day, except a Custom Basket that differs from the applicable Proxy Basket only with respect to cash, together with the right of Authorized Participants to create and redeem each day at the net asset value, will enable market participants to value and trade shares in a manner that will not lead to significant deviations between the bid/ask price and net asset value of shares of a series of Proxy Portfolio Shares.
Further, including Custom Baskets in the requirements of Nasdaq Rule 5750(b)(5) and (6) would act as a safeguard against any misuse and improper dissemination of nonpublic information related to a fund's Custom Basket or changes thereto. The requirement that any person or entity implement procedures reasonably designed to prevent the use and dissemination of material non-public information regarding a Custom Basket will act to prevent any individual or entity from sharing such information externally and the internal “fire wall” requirements applicable where an entity is a registered broker-dealer or affiliated with a broker-dealer will act to make sure that no entity will be able to misuse the data for their own purposes. As such, the Exchange believes that the proposed rule change to Nasdaq Rule 5750 is designed to prevent fraudulent and manipulative acts and practices.
The Exchange also believes that the proposed initial and continued listing standards are designed to promote disclosure and transparency with respect to the use of Custom Baskets consistent with the applicable exemptive relief. Specifically, the Exchange believes that requiring as an initial listing condition that an issuer and any person acting on behalf of the series of Proxy Portfolio Shares comply with Regulation Fair Disclosure under the Act, including with respect to any Custom Basket, would further the full and fair disclosure objectives of Regulation Fair Disclosure to the benefit of the investing public and all market participants. Additionally, with respect to each Custom Basket utilized by a series of Proxy Portfolio Shares, the Exchange believes that requiring, as a
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes the proposed rule change, by permitting the use of Custom Baskets, is consistent with a fund's exemptive relief, would introduce additional competition among various ETF products to the benefit of investors.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
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.
On July 1, 2021, MIAX PEARL, LLC (“MIAX Pearl” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”),
MIAX Pearl proposes to increase the monthly fees for Full Service MEO Ports, which fee increases became effective July 1, 2021.
Full Service MEO Ports are of two types: Bulk and Single.
The Exchange proposes to increase fees for all Full Service MEO Port as follows:
For Full Service MEO Ports—Bulk, if the Member's relevant monthly volume falls within the parameters of:
• Tier 1 (up to 0.30% TCV): The monthly fee would increase from $3,000 to $5,000;
• Tier 2 (above 0.30%, up to 0.60% TCV): The monthly fee would increase from $4,500 to $7,500; and
• Tier 3 (above 0.60% TCV): The monthly fee would increase from $5,000 to $10,000.
For Full Service MEO Ports—Single, if the Member's relevant monthly volume falls within the parameters of:
• Tier 1 (up to 0.30% TCV): The monthly fee would increase from $2,000 to $2,500;
• Tier 2 (above 0.30%, up to 0.60% TCV): The monthly fee would increase from $3,375 to $3,500; and
• Tier 3 (above 0.60% TCV): The monthly fee would increase from $3,750 to $4,500.
Pursuant to Section 19(b)(3)(C) of the Act,
In support of the proposed fee increases, the Exchange argues principally that the fees for Full Service MEO Ports are constrained by competitive forces, and that this is supported by their revenue and cost analysis. In particular, the Exchange states that there are 16 options markets that are “highly competitive” and that reliance on competitive markets is an appropriate means to ensure equitable and reasonable prices.
The Exchange also states that the proposed fees are designed to recover a portion of the costs associated with directly accessing the Exchange and that the proposed increases are reasonable and appropriate to allow the Exchange to offset expenses the Exchange has and will incur in relation to providing the Full Service MEO Ports.
The Exchange states that for 2021, the total annual expense for providing the access services associated with the Proposed Access Fees for the Exchange is projected to be approximately $897,084.
The Exchange states that the total third-party expense, relating to fees paid by the Exchange to third-parties for
In addition, the Exchange states that the total internal expense, relating to the internal costs of the Exchange to provide the access services associated with the Proposed Access Fees, is projected to be $856,918 for 2021.
The Exchange states that this cost and revenue analysis shows that the proposed rule change will not result in excessive pricing or supra-competitive profit.
The Exchange further states that its proposed fees are reasonable, equitably allocated and not unfairly discriminatory because the Exchange, and its affiliates Miami International Securities Exchange, LLC (“MIAX”) and MIAX Emerald, LLC (“MIAX Emerald”), are still recouping the initial expenditures from building out their systems while “legacy” exchanges have already paid for and built their systems.
The Exchange states that the proposed fees are equitably allocated, not unfairly discriminatory, and do not impose an unnecessary or inappropriate burden on competition because the Proposed Access Fees do not favor certain categories of market participants,
When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchange's present proposal, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder applicable to the exchange.
Section 6 of the Act, including Sections 6(b)(4), (5), and (8), require the rules of an exchange to (1) provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities;
In temporarily suspending the Exchange's fee change, the Commission intends to further consider whether the proposal to increase fees for the Exchange's Full Service MEO Ports is consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule change.
In addition to temporarily suspending the proposal, the Commission also hereby institutes proceedings pursuant to Sections 19(b)(3)(C)
Pursuant to Section 19(b)(2)(B) of the Act,
• Whether the Exchange has demonstrated how the proposal is consistent with Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange “provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities;”
• Whether the Exchange has demonstrated how the proposal is consistent with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be “designed to perfect the operation of a free and open market and a national market system” and “protect investors and the public interest,” and not be “designed to permit unfair discrimination between customers, issuers, brokers, or dealers;”
• Whether the Exchange has demonstrated how the proposal is consistent with Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].”
As discussed in Section III above, the Exchange makes various arguments in support of the proposal. The Commission believes that there are questions as to whether the Exchange has provided sufficient information to demonstrate that the proposal to increase Full Service MEO Port fees is consistent with the Act and the rules thereunder.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposal is consistent with the Act, specifically, with its requirements that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers, and other persons using its facilities; are designed to perfect the operation of a free and open market and a national market system, and to protect investors and the public interest; are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers; and do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act;
The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by September 23, 2021. Rebuttal comments should be submitted by October 7, 2021. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 30, 2021, Miami International Securities Exchange, LLC (“MIAX”) and MIAX Emerald, LLC (“MIAX Emerald”) (each, an “Exchange,” and collectively, the “Exchanges”) each filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchanges propose to establish fees for their cToM market data products.
The Exchanges each propose to assess Internal Distributors
Pursuant to Section 19(b)(3)(C) of the Act,
The Exchanges generally argue that the proposed fees are consistent with the Act because the Exchanges operate in a highly competitive environment that constrains their pricing of the cToM feeds.
The Exchanges further argue that the proposals are equitable and not unfairly discriminatory because the proposed cToM fees will apply to all market participants of the Exchanges on a uniform basis.
Finally, the Exchanges assert that the proposed fees would not cause any unnecessary or inappropriate burden on inter-market competition, as other exchanges are free to introduce their own comparable data products and lower their prices to better compete with the Exchanges' offerings.
When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchanges' present proposals, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder applicable to the exchange.
Section 6 of the Act, including Sections 6(b)(4), (5), and (8), require the rules of an exchange to: (1) Provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities;
In temporarily suspending the Exchanges' proposed rule changes, the Commission intends to further consider whether the proposals to establish fees for the cToM market data feeds are consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule changes satisfy the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule changes.
In addition to temporarily suspending the proposals, the Commission also hereby institutes proceedings pursuant to Sections 19(b)(3)(C)
Pursuant to Section 19(b)(2)(B) of the Act,
• Whether the Exchanges have demonstrated how their proposed fees are consistent with Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange “provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities”;
• Whether the Exchanges have demonstrated how their proposed fees are consistent with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange not be “designed to permit unfair discrimination between customers, issuers, brokers, or dealers”;
• Whether the Exchanges have demonstrated how their proposed fees are consistent with Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].”
As discussed in Section III above, the Exchanges made various arguments in support of their proposals. The Commission believes that there are questions as to whether the Exchanges have provided sufficient information to demonstrate that the proposed fees are consistent with the Act and the rules thereunder.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposed fees are consistent with the Act, and specifically, with its requirements that exchange fees be reasonable and equitably allocated, not be unfairly discriminatory, and not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by September 23, 2021. Rebuttal comments should be submitted by October 7, 2021. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
The Commission asks that commenters address the sufficiency and merit of the Exchanges' statements in support of the proposals, in addition to any other comments they may wish to submit about the proposed rule changes.
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule changes, including whether the proposed rule changes are 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.
It is therefore ordered, pursuant to Section 19(b)(3)(C) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of August 2021. A copy of each application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
The Commission:
Shawn Davis, Assistant Director, at (202) 551-6413 or Chief Counsel's Office at (202) 551-6821; SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE, Washington, DC 20549-8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On May 13, 2021, ICE Clear Europe Limited (“ICE Clear Europe”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities
ICE Clear Europe proposes specific changes to the Amended Documents that would generally make various drafting improvements, clarifications, and updates, in each case as described below.
ICE Clear Europe proposes to remove the process by which Non-FCM/BD Clearing Members may deliver a “Default Portability Preference,” with advance, pre-default, porting information to ICE Clear Europe. Currently, the Default Portability Preference allows a Customer or Specified Principal (
To implement this change, ICE Clear Europe proposes to delete the existing definitions of “Default Portability Preference” and “Non-Transfer Positions” in Rule 101 (Definitions), and to add a new definition of “Porting Notice” in Rule 101, which would cross-reference the existing definition of the term in the relevant Standard Terms of the Rules. The existing definition of “Porting Notice” would not change, and is generally defined in the Standard Terms as a post-default notification to ICE Clear Europe from a Customer or Sponsored Principal of a porting preference to a designated Transferee Clearing Member.
In Rule 904 (Transfer of Contracts and Margin on a Clearing Member Event of Default), the proposed rule change would amend Rules 904(g) and 904(j) to remove the existing references to Default Portability Preference and replace them with references to Porting Notices. In addition, the proposed rule change also would amend Rule 904(g) to provide that a Transferee Clearing Member's consent can only be evidenced in a Porting Notice that is countersigned by such Clearing Member or otherwise agreed in writing. ICE Clear Europe represents that this change would clarify that simply being named by a customer as a potential Transferee Clearing Member is not sufficient to evidence a Clearing Member's consent to being named a Transferee Clearing Member by the Clearing Member's customer.
In Rule 907(d), the proposed rule change would delete existing references to Default Portability Preference and Non-Transfer Positions, and would instead provide that in connection with porting, ICE Clear Europe will be entitled to rely on any information provided to it by a Defaulter prior to declaration of default in respect of Contracts, Customer-CM Transactions, Margin, and the Accounts in which Contracts and Margin were recorded or which relate to particular Customers or particular groups of Customers. ICE Clear Europe represents that this proposed change would allow it to continue to be able to act efficiently in default scenarios, and rely on more of the relevant information available to it in relation to the Defaulter.
The proposed rule change would also remove references to Default Portability Preferences and include reference to Porting Notices in the CDS Standard Terms (paragraph 6), F&O Standard Terms (paragraph 6) and FX Standard Terms (paragraph 6) annexed to the Rules.
The proposed rule change would amend certain definitions relating to Energy transactions to simplify and make such terms consistent with previous amendments to definitions for other F&O Products.
ICE Clear Europe proposes several changes to the Rules to address more clearly exchange for related position transactions, referred to as EFRPs, under applicable Market rules, including to revise defined terms and clarify that such transactions are available on exchanges for products other than soft commodities.
In Rule 101, the proposed rule change would add a new “EFRP” definition using a similar drafting structure to that for EFP (exchange for physicals) and EFS (exchange for swaps) transactions by including the phrase “or any similar transaction under any Market Rules.” Also, the proposed rule change would clarify the current definition of “EFS” in Rule 101 to refer only to exchange for swaps or similar transactions under Market Rules and to remove an existing reference to exchange for related positions, which would instead be covered by the proposed EFRP definition. In the “Financials & Softs Block Transaction” definition, the proposed rule change would broaden the reference to “Soft Commodity EFRPs” to include all EFRPs under all Market Rules, as Soft Commodity EFRPs are specific to ICE Futures Europe. Accordingly, the proposed rule change would delete the “Soft Commodity EFRP” definition which is not otherwise used.
The proposed rule change would amend Rule 105(a) to shorten the termination period (generally from four months to one month) for a service withdrawal for a product in circumstances in which there is no open interest in the relevant Set. ICE Clear Europe represents that a longer termination period is unnecessary in such circumstances, since no action is required by Clearing Members to close out their positions.
ICE Clear Europe proposes amendments to Rule 209(d) to facilitate membership terminations in the context of a corporate group reorganization where a new Clearing Member that is an Affiliate will be receiving the terminating Clearing Member's Open Contract Positions. In such context, the proposed amendment would establish an exception to the requirement for terminating Clearing Members to immediately pay to ICE Clear Europe, upon service of a Termination Notice, Assessment Contributions equal to three times the required relevant guaranty fund contribution. ICE Clear Europe represents that such an exception is warranted since all positions would be received by an affiliated Clearing Member in good standing that would remain liable with respect to any obligations arising from or related to the holding of such positions under the Rules (including as to future Assessment Contributions).
The proposed rule change would further amend Rule 209(d) to clarify that references in the Clearing Rules to Assessment Contributions being called or to Guaranty Fund Contributions being replenished or applied, where the Clearing Member has provided Permitted Cover to ICE Clear Europe (whether under Rule 209(d) or prior to the Clearing Member serving its termination notice or the Termination Date), would be interpreted as a reference to that Permitted Cover being applied. The proposed rule change would also clarify that the Permitted Cover which has been provided by the Clearing Member prior to the serving of a termination notice or a Termination Date could, as is currently intended, also be included as part of, for example, any applications of Guaranty Fund by ICE Clear Europe under Part 9 or Part 11.
The proposed amendments to Rule 209(d) would further clarify for the avoidance of doubt that the following obligations would apply to a terminating Clearing Member until Open Contract Positions have been closed, the Termination Date has passed, and all Guaranty Fund Contributions have been returned under Rule 1102(g): Application of Guaranty Fund Contributions, application of Assessment Contributions (to the extent paid under Rule 209(d) or otherwise prior to the Termination Date), position limits under Part 6, disciplinary actions under Part 10, and the declaration and consequences of an Event of Default under Part 9 of the Rules.
ICE Clear Europe represents that the foregoing proposed amendments to Rule 209(d) reflect its experience with both default planning and recent Clearing Member terminations involving group reorganizations.
ICE Clear Europe represents that the proposed changes regarding the delivery of notices under the Rules have been informed by default simulation planning and, in particular, the requirements around default notices under Rule 901, but are not limited to that context.
The proposed rule change would also amend Rules 113(c) and 113(d) to clarify the precise time when effective service is deemed to be made for communications by fax, email, and courier, and that effective service and delivery can be achieved outside of opening hours on a business day, consistent with current operational practices.
Similarly, the proposed rule change would amend Rule 1901(n) to clarify that process agents for Sponsored Principals will act as agents for service of process of any notice, order, or other communication under the Rules and the Sponsored Principal Agreement.
ICE Clear Europe proposes to amend Part E of the summary table at paragraph 4.2 of the Membership Procedures to provide that the termination of a Clearing Membership Agreement or membership as a Clearing Member would become effective no less than 30 Business Days after the date of the Termination Notice Time or pursuant to Rule 917(c) instead of the current notice period of no less than three months' advance notice if termination is not for cause and otherwise as specified in and allowed pursuant to the Rules. This change would make the summary table consistent with current Rule 209. Finally, throughout the summary table at paragraph 4.2 of the Membership Procedures, the proposed rule change would update the email address to which Clearing Members should send certain notifications.
The proposed rule change would amend Rule 201(a)(ix) to reference existing Rule 201(b), under which ICE Clear Europe may require that potential Clearing Members enter into additional annexes or agreements to the Clearing Membership Agreement in order to be, and remain, eligible for Clearing Membership. ICE Clear Europe represents that it had to develop certain annexes to cater for local law issues arising in certain EU member states as part of Clearing Members' post-Brexit group legal structuring.
The proposed rule change would also amend Rule 202(a)(xxii), which currently requires Clearing Members to have competent persons accessible to ICE Clear Europe during opening hours and for two hours immediately after the business day. Under the proposed amendment, Clearing Members would be required to have competent persons accessible to ICE Clear Europe for two hours prior to the start of the business day as well. ICE Clear Europe represents that this change is consistent with current operational practice and necessary to ensure that staff are available to process and deal with questions relating to morning margin calls.
ICE Clear Europe proposes to add a new Rule 301(o) that would allow it to request information on account balances of nominated accounts of the Clearing Member at financial institutions when needed, including for the purpose of calling on available cash where the Clearing Member has failed to meet a payment obligation or determining whether the Clearing Member is, or is likely to be, in default. ICE Clear Europe represents that this change would address issues that have arisen in practice where payment banks have refused to provide such information to ICE Clear Europe.
The proposed rule change would amend Rule 205(a)(ii) to give ICE Clear Europe greater flexibility to accept different kinds of financial statements (for example, semi-annual accounts) from Clearing Members as part of their financial reporting obligations, in circumstances where that Clearing Member does not produce a quarterly financial statement for its regulators. This amendment would also result in a conforming change to Part A of the summary table at paragraph 4.2 of the Membership Procedures. ICE Clear Europe represents that these proposed amendments would formalize current operational practice for those Clearing Members who do not prepare regulatory quarterly financials.
The proposed rule change would amend Rule 401(o) to clarify that, where a CDS Contract of a Non-FCM/BD Clearing Member for a customer account arises pursuant to Rule 401, a Customer-CM CDS Transaction arises between the Customer and the Non-FCM/BD Clearing Member at the same time as the Contract. The current rule does not specify the timing of the Customer-CM CDS Transaction. The proposed amendment would reflect the equivalent rule for a Customer-CM F&O Transaction in Rule 401(n).
The proposed rule change would amend Rules 406(b) and (c) to address contractual netting for F&O contracts by aligning the provisions for F&O Contracts more closely with the corresponding rule provisions on contractual netting for CDS contracts in Rule 406(d),
The proposed rule change would amend Rule 409(a) so that ICE Clear Europe can evidence its consent to amendments, waivers, and variations of the Contract Terms by a Circular. ICE Clear Europe represents that a Circular has been the usual way of issuing such amendments, waivers, and variations, and the proposed change would conform the Rules to operational practice.
The proposed rule change would amend Rule 1603(c) to clarify that only “original” or “initial” types of Margin payments shall be provided in the form of Pledged Collateral, and that such collateral excludes Variation Margin, Mark-to-Market Margin, and FX Mark-to-Market Margin, which is provided to or by ICE Clear Europe by outright transfer of cash as a settlement payment. ICE Clear Europe represents that this proposed change is intended to be consistent with amendments previously made to the Rules to clarify that such variation and mark-to-market margin are settlement payments rather than collateral, and was inadvertently omitted from such prior amendments.
The proposed rule change would amend Rule 903(c) to clarify that ICE Clear Europe's right to authorize hedging transactions in a Default scenario would include transactions on a Market, any other Exchange, or over the counter. The proposed amendments would also provide that such transactions taking place on an exchange which is not a Market, or where requested or directed otherwise by ICE Clear Europe, need not themselves be cleared.
The proposed rule change would amend Rule 901(a)(iv) to clarify that the declaration of an Event of Default in respect of one Clearing Member is a circumstance in which ICE Clear Europe can declare an Event of Default in respect of another Clearing Member that
The proposed rule change would amend Rule 201(a)(xx) to provide that the requirement for a Clearing Member to be an “eligible contract participant”
The proposed rule change would amend Rule 916(d) to change the term “Risk Committee” to “relevant product risk committee.” ICE Clear Europe represents that this change reflects that there are different product risk committees addressing topics specific to F&O and CDS.
The proposed rule change would amend the definition of “Exchange Delivery Settlement Price” or “EDSP” in Rule 101 (Definitions) to clarify, for the avoidance of doubt, that the EDSP can be a positive or negative number, or zero. The proposed rule change would amend Rule 703(b) (Delivery) by adding new language to clarify the process for payment obligations if the EDSP is a negative number. In such event, amended Rule 703(b) would provide that the roles of the Buyer and Seller as set forth in the Rules, Delivery Procedures, Contract Terms, and Market Rules shall be reversed solely in respect of the payment obligation related to that EDSP.
The proposed rule change would amend Rule 1501 (Definitions) in Part 15 (Credit Default Swaps) of the Rules to change the definition of “Prospectus Directive” to “Prospectus Regulation,” because the EU Prospectus Directive has been repealed and replaced with the Prospectus Regulation. The proposed rule change would also make conforming changes to the following definitions: “Offer to the Public,” by replacing the obsolete term “Prospectus Directive” with “Prospectus Regulation”; “Relevant Member State,” by using a new defined term “Relevant State” that would remove the current reference to the Prospectus Directive and add the phrase “or the United Kingdom”; and “Securities,” by replacing the current references to the Prospectus Directive with a reference to the Prospectus Regulation. Similarly, the proposed rule change would delete the definition of “2010 PD Amending Directive” (and references thereto) as this directive is also no longer in force. Additional conforming changes would be made in Rule 1503 to remove obsolete legislative references to the Prospectus Directive.
The proposed rule change would amend Rule 101 (Definitions) by updating the definition of the term “Money Laundering Directive” to reflect the implementation of the fifth EU Anti-Money Laundering Directive. The proposed rule change would also add a new definition of “Money Laundering Regulations” to reference the applicable UK regulations corresponding to that Directive, including after its exit from the European Union.
In Rule 201(a)(xxix) (Clearing Membership Criteria) and Rule 1901(d)(xi) (Attaining status of a Sponsored Principal), the proposed rule change would remove the existing references to “simplified due diligence.” ICE Clear Europe represents that this change reflects the repeal and restatement of the U.K.'s former Money Laundering Regulations 2007 pursuant to the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, which removed simplified due diligence as the default option for a defined list of entities and replaced it with discretionary risk-based levels of due diligence.
The proposed rule change also would amend Rule 201(a)(xxxi) to add anti-money laundering laws to the existing list of applicable laws that are required to be acceptable to ICE Clear Europe in the respective jurisdictions of Clearing Members. The proposed rule change would add a new Rule 201(a)(xxxiii) to require Clearing Members to have adequate policies, procedures, systems, and controls relating to Applicable Laws, including relating to anti-money laundering and the prevention of financial crime. The proposed rule change would make similar amendments to Rules 202(a)(xii) and 1901(m) to update references to relevant laws, clarify that the Clearing Member is required to make certain representations and warranties to ICE Clear Europe with respect to the matters in those subsections, require the Clearing Member to have the necessary authority from customers and others to disclose the necessary information about beneficial owners in order to comply with requirements under Applicable Laws, and to retain copies of documents required to be retained under anti-money laundering laws.
Similarly, the proposed rule change would amend Rule 1607 (Additional FCM/BD Requirements for Customer Transactions) by adding a new clause (g) to require FCM/BD Customers to obtain the authority from “beneficial owners” to disclose information necessary for anti-money laundering due diligence to the Clearing Member and ICE Clear Europe. The proposed rule change would add similar new requirements to the CDS Standard Terms in clause 3(q), F&O Standard Terms in clause 3(r), and FX Standard Terms in clause 3(q).
The proposed rule change would amend the Rules to introduce new Rule 1008, which would provide ICE Clear Europe with the authority to issue a summary fine to a Clearing Member under certain conditions, and to make certain minor drafting improvements to the disciplinary process provisions of the Rules. ICE Clear Europe represents that the new authority to issue a summary fine would be consistent with the authority to issue summary fines provided under the rules of other ICE exchanges for which ICE Clear Europe provides clearing services. ICE Clear Europe further represents that it intends to introduce a more streamlined
In Rule 101 (Definitions), the proposed rule change would amend the definition of “Appeal Panel” to include a reference to the new Summary Disciplinary Process, and would add a new definition of “Summary Disciplinary Process.” In Rule 102 (Interpretation), the proposed rule change would amend Rule 102(j) to refer to new Rule 1008 in the context of disciplinary proceedings under the Rules. The proposed rule change would amend Rule 102(p) to add language that any Disciplinary Panel, Summary Disciplinary Committee, or Appeal Panel appointed pursuant to Part 10 of the Rules (Disciplinary Proceedings) would be able to exercise discretion in the same way as ICE Clear Europe under Rule 102(p). In Rule 1005(c), the proposed rule change would make a related amendment to delete the word “exclusive” before the word “discretion” with respect to the Appeal Panel given the proposed changes to Rule 102(p).
ICE Clear Europe proposes other amendments in the Rules to implement the new Summary Disciplinary Process. Specifically, the proposed rule change would amend Rule 1002(i) (Investigations) to replace existing language with a new reference to the proposed Summary Disciplinary Process under Rule 1008. Current Rule 1002(i) provides that ICE Clear Europe may order that a Clearing Member pay a fine which ICE Clear Europe decides in its discretion is commensurate with a breach of the Rules, which fine is appealable directly to the Appeal Panel. As revised, Rule 1002(i) would provide that ICE Clear Europe may impose sanctions pursuant to the Summary Disciplinary Process under Rule 1008. The proposed rule change would amend Rule 1003(b) (Disciplinary Proceedings) to add a new sentence that ICE Clear Europe must also establish a Disciplinary Panel where so required by an Appeal Panel pursuant to Rule 1005(a)(iii)(Appeals) or Rule 1008(h) (Summary Disciplinary Process). Proposed new Rule 1005(g) would be added to state that Rule 1005 applies as the appeal process concerning an imposed sanction pursuant to the Summary Disciplinary Process under Rule 1008.
The proposed rule change would add new Rule 1008 (Summary Disciplinary Process) to set out the summary disciplinary process that ICE Clear Europe may adopt against a Clearing Member, which process would clarify the situations in which the new process may apply, the sanctioning power of the Summary Disciplinary Process, and the process by which ICE Clear Europe would conduct the Summary Disciplinary Process. Specifically, ICE Clear Europe may apply the proposed Summary Disciplinary Process in relation to: The late filing or submission of any document, notice or information; the late making of any payment; any failure to record a Contract in the correct Account; the late making or taking of any delivery; any breach of Rule 202(a)(xix) (participation in default management simulations, new technology testing and other exercises); any breach of Rule 503(g) (the submission of end-of-day prices relating to Sets of CDS Contracts required of Clearing Members to aid in the establishment of Mark-to-Market Prices); any breach of a position limit under Part 6 of the Rules; any breach of any provision of the Rules or Procedures that ICE Clear Europe considers to be of a factual nature where ICE Clear Europe holds sufficient evidence of such facts; any breach of any provision of the Rules or Procedures that ICE Clear Europe considers to be minor in nature; or any breach of the Rules or Procedures which ICE Clear Europe considers would be appropriately addressed by the Summary Disciplinary Process.
Proposed Rule 1008 would limit sanctions to the following: Issuance of a private warning or reprimand naming the Clearing Member or a Clearing Member Customer, client or Representative; a fine of up to £50,000; or any combination of the foregoing. Proposed Rule 1008 would also specify the process of imposing any sanction, including the notice process by ICE Clear Europe, the opportunity for a Clearing Member to appeal, the grounds for appeal and the actions the appeal panel may take (
The proposed rule change would make a number of other drafting enhancements, clarifications, and improvements throughout the Rules, primarily in the definitions.
In Rule 101 (Definitions), the proposed rule change would add a new definition of “Acceptance Time,” which is defined to mean: “(i) in relation to a CDS Contract, the `Acceptance Time' (as defined in the CDS Procedures); or (ii) in relation to an FX Contract, the `FX Acceptance Time' (as defined in the FX Procedures).” The proposed definition would ensure definitional consistency with respect to specifying the applicable time for the acceptance of such Contracts for clearing by ICE Clear Europe, and clarify the meaning of certain undefined references to such term in the Rules,
The proposed rule change would amend Rule 201(a)(v) (Clearing Membership Criteria) to change an erroneous singular phrase “Contract is” to the plural “Contracts are.” The proposed rule change would amend Rules 304(a)(ii)(A), 304(a)(ii)(B), and 1901(e) regarding Sponsored Principals to correctly reference the term “Nominated Bank Account” in place of the current term “Nominated Account.”
The proposed rule change would amend Rule 401(g) (Formation of Contracts) to reflect that under existing practice and as stated and assumed elsewhere in the Rules (
The proposed rule change would amend Rule 904(b) (Transfer of Contracts and Margin on a Clearing Member Default) to change an incorrect term “Market-to-Market Value” to the correct defined term “Mark-to-Market Price.” Similarly, the proposed rule change would amend Rule 905(g) (Termination and close out of Contracts on a Clearing Member Event of Default) to delete a reference to “Market-to-Market Value” as well as the unused term Reference Price. In Rule 905(b)(ix), the proposed rule change would make a grammatical change to reflect that there may be multiple Defaulters rather than just one. The proposed rule change would amend Rule 908(i) (Application of Assets upon an Event of Default) to correct existing typographical errors and an incorrect cross-reference. The proposed rule change would amend clause (ii) of Rule 908(i) to reflect that the applicable modifications would be set out in the Default Auction Procedures as opposed to a Circular. In the definition of “MTM/VM” in Rule 913(a)(xxxi), the proposed rule change would amend the existing language to reflect that MTM/VM is transferred to, rather than held as a deposit by, the Clearing House. The proposed rule change would delete the definition of “Product Termination Amount” in Rule 913(a)(xxxviii) as this term is already defined in existing Rule 916. The proposed rule change would amend Rule 913(a)(lviii) to clarify, for the avoidance of doubt, that amounts payable in respect of transfers are included in the definition of “Transfer Cost.” The proposed rule change would amend Rule 915(e) (Partial Tear-Up) to correctly reference all categories of mark-to-market or variation margin for all product categories. The proposed rule change would amend Rule 916(i) to clarify that Guaranty Fund and Assessment contributions due pursuant to Rule 916(i) are subject to the provisions of Rule 917 (Cooling-off period and Clearing Member termination rights), including the limitations thereon during a Cooling-off Period. The proposed rule change would amend Rule 918(d) to refer to any Event of Default rather than multiple Events of Default. The proposed rule change would also incorporate references to Rules 916 (Contract Termination following Certain Conditions or Under-priced Auction) and 918 (Termination of membership) into Rule 1102(g) (Clearing Members' Contributions) to reflect that these Rules could apply in certain cases to determine the return of Guaranty Fund Contributions.
The proposed rule change would delete Rule 1901(d)(vi), because the referenced Council Directive has been repealed. As a result, the proposed rule change would renumber subsequent provisions and update cross-references in other provisions.
The proposed rule change would correct a typographical error in the title of Part 23, Rules for Market Transactions. The proposed rule change would make other typographical and drafting corrections in various provisions of the Rules, including 102(q), 202(a)(xxi), 203(a)(xx) and 504(c)(vi).
The proposed rule change would amend Part 3(b) of the F&O Standard Terms to more clearly state that Customer-CM F&O Transactions would arise in accordance with Part 4 of the Rules. This change would align with the drafting used in the other Standard Terms.
The proposed rule change would amend Rule 1607(d)(iii), CDS Standard Terms 7(iii), F&O Standard Terms 7(iii) and FX Standard Terms 7(iii) to refer to “Personal Data” rather than “Personal Data of its Data Subjects.” This change would eliminate unnecessary language.
The proposed rule change would amend paragraph 1.1(a) of the Clearing Procedures to remove existing references to the PTMS/ACT systems, because they are legacy systems that ICE Clear Europe represents that it no longer uses.
The proposed rule change would amend the Finance Procedures in Part 4 (Assured Payment System: Accounts), paragraphs 4.1(a)(i) and (iv) and 4.4(a)(i) and (iv), concerning the account requirements for members to reflect that ICE Clear Europe clears both EUR and USD denominated CDS contracts; accordingly, all CDS Clearing Members are required to have both EUR and USD accounts and would no longer be required to have a GBP account.
The proposed rule change would amend paragraph 6.1(i)(ix) of the Finance Procedures to clarify that the additional margin requirement that applies where payment of variation or mark-to-market margin is made in a currency other than the contractual currency would apply on a Currency Holiday. ICE Clear Europe represents that this reflects current practice.
The proposed rule change would also update and correct the committee references in the Finance Procedures. Specifically, ICE Clear Europe proposes to change the references in paragraph 14(2) and 14(3) from the CDS Risk Committee and FX Risk Committee to “CDS Product Risk Committee” and “FX Product Risk Committee,” respectively. The proposed rule change would also make similar changes throughout the CDS Procedures where “CDS Risk Committee” is currently used.
The proposed rule change would make amendments to paragraphs 3.10, 3.11, 3.21 and 4.5 in the Finance Procedures to remove clarify that the terms MFT and ECS would now be defined in the Delivery Procedures.
The proposed rule change would amend paragraph 15.4(b) of the Finance Procedures by deleting an outdated reference to the Continuing CDS Rule Provisions, which are no longer in effect.
The proposed rule change would add new paragraph 1.1(d) to the Delivery Procedures to obligate Clearing Members to conduct appropriate anti-money laundering due diligence for any transferors and transferees and provide relevant documentation to ICE Clear Europe and/or the Clearing Member. The proposed amendments to paragraphs 5.4 and 5.5 of the Delivery Procedures would add language to clarify that transferors and transferees that are customers would be bound by the F&O Standard Terms, including with respect to delivery of information, and also to clarify that transferors and transferees are not customers of ICE Clear Europe for purposes of relevant anti-money laundering laws and other Applicable Law.
The proposed rule change would add new definitions in the Delivery Procedures to “ECS,” “MFT,” “ICE FEC,” and “MPFE” to ensure there are consistent references to ICE Clear Europe systems in the various Amended Documents. The proposed rule change would define the term “ECS” to mean “the extensible clearing system that provides functionality for position maintenance (including close-outs), options exercise and delivery, in addition to cash and collateral management for the Clearing House (or any successor system).” The proposed rule change would define the term “MFT” to mean “the managed file transfer system through which the Clearing House provides access to all clearing reports and data files.” The proposed rule change would define the term “ICE FEC” to mean “the single user interface used by the Clearing House, offering functions to view and manage trades, transfers, allocations and claims.” The proposed rule change also would define the term “MPFE” to mean “the futures expiry report generated by the Clearing House.”
Similarly, the proposed rule change would remove existing references to the legacy ICE System Crystal throughout the Delivery Procedures and replace them with new references to ECS, MFT, and ICE FEC, which are the systems that ICE Clear Europe now uses. Similarly, the proposed rule change would delete Delivery Documentation Summaries and form references throughout the Delivery Procedures where ECS has replaced the manual submission of forms to ICE Clear Europe. Specifically, these changes would be made in Part B (ICE Gasoil Futures), Part D (ICE Futures UK Natural Gas Contracts), Part F (ICE Endex TTF Natural Gas Contracts), Part G (ICE Endex Gaspool Natural Gas Contracts), Part H (ICE Endex NCG Natural Gas), Part I (ICE Endex ZTP Natural Gas Contracts), Part N (ICE Deliverable US Emissions Contracts), Part Q (Financials & Softs White Sugar Contracts), Part U (Financials & Softs Gilt Contract) and Part Z (Equity Futures/Options).
ICE Clear Europe proposes changes to the Delivery Procedures to update various operational practices and to make other updates and drafting improvements.
The proposed rule change would add a new paragraph 7 to the Delivery Procedures to reference the alternative delivery procedure for Emission Contracts as set out in paragraph 7 of Part A of the Delivery Procedures (ICE Endex Deliverable EU Emissions Contracts). Subsequent paragraphs would be renumbered and conforming amendments to cross-references would be made.
The proposed rule change would amend Part A (ICE Endex Deliverable EU Emissions Contracts) of the Delivery Procedures to change existing references to “Account,” which is no longer a defined term in the Delivery Procedures, to the defined term “Registry Account.” The proposed rule change would amend the defined term “Contract Date.” Under the current definition, “Contract Date” means, for an ICE Endex EUA, an individual Business Day on which (a) trading commences, (b) trading ceases, and (c) the Delivery Period commences for those trades executed on that Business Day. The proposed rule change would delete clause (c) of the current definition because ICE Clear Europe found it was redundant in light of clauses (a) and (b). ICE Clear Europe represents that the term “Contract Date” is only used in connection with daily contracts, and in that context, only one daily contract is available at a time, and so the date on which trading commences and trading ceases sufficiently defines the Contract Date. The proposed rule change also would delete Section 9.3 (ICE EUA and EUAA Auction Contracts), because Part A no longer references auction contracts.
The proposed rule change would also amend paragraph 7 (Emissions Alternative Delivery Procedure (“EADP”)) in Part A following the entry into an EADP Agreement (
The proposed rule change would delete Part M (ICE Endex German Power Futures), because these contracts have been delisted from the relevant exchange. The proposed rule change also would delete outdated references to ICE OTC Contracts in Part N (ICE Deliverable US Emissions Contracts (Bilateral Delivery)), as revised.
In Part U (Financials & Softs Gilt Contracts), the proposed rule change would add a new paragraph 2 (Failed Settlement and Non-Delivery of Stock) to establish a procedure to address the Seller's non-delivery of securities under a Financials & Softs Gilt Contract, including the actions ICE Clear Europe may take to promote settlement in
In Part Z, the proposed rule change would make various updates to reference the correct settlement facilities and relevant settlement details and settlement procedures for Equity Futures/Options Contracts. Specifically, the proposed rule change would amend paragraph 1.4 (Deliverable Equities) to clarify the treatment of corporate events relating to underlying securities by reference to the relevant Exchange corporate action policy and the relevant contract terms. The proposed rule change also would amend the provisions in paragraph 2.3 (Partialling) and paragraph 3 (Failed Settlements and Non-Delivery of Stock) to clarify the processes for dealing with partial deliveries and failed deliveries, including the steps that ICE Clear Europe may take to facilitate delivery, the rights and responsibilities of the buying clearing member with respect to onward deliveries under other contracts, and the allocation of costs to clearing members. The proposed rule change would amend paragraph 2.4 (Daylight Indicator) to clarify that ICE Clear Europe may in its discretion decide to accept, or not to accept, any request for daylight settlement. In paragraph 3.1 (Buying In Summary Timetable), the proposed rule change would make various drafting clarifications and improvements.
In Part FF (ICE Futures New York Harbour Ultra Low Sulphur Diesel Futures, ICE Futures Europe New York Harbour Ultra Low Sulphur Heating Oil Futures), the proposed rule change would amend the first table with respect to the receipt of documents by ICE Clear Europe by removing the statement that in the event of non-availability of any of the listed delivery documents, Seller may substitute a letter of indemnity in favor of the Buyer.
Finally, the proposed rule change would make various drafting clarifications, typographical corrections, and updates to defined terms and cross-references throughout the Delivery Procedures.
The proposed rule change would amend paragraph 11.4 of the CDS Procedures (Modifications to List of Eligible Single Name Reference Entities). Paragraph 11.4 gives ICE Clear Europe the ability to make certain modifications to its list of Eligible Single Name Reference Entities, subject to consultation with the CDS Product Risk Committee. Currently, upon making any such modifications, ICE Clear Europe must give notice by Circular. The proposed rule change would amend this provision such that upon making any changes, ICE Clear Europe would be required to update certain relevant information relating to CDS Contracts on its website, rather than giving notice by Circular of such actions. ICE Clear Europe represents that it discusses changes to the list of eligible reference entities prior to implementation with the Trading Advisory Group, which has weekly meetings to which trader representatives of CDS Clearing Members are invited. Members of the Trading Advisory Group are also notified by email of changes to reference obligations. In addition, ICE Clear Europe represents that its Operations Working Group discusses changes to clearing reference obligations prior to implementation, and the Operations Working Group has weekly meetings to which operational personnel of CDS Clearing Members are invited. Once agreed, ICE Clear Europe would reflect the changes on the cleared product website on the date they are made eligible or modified, in accordance with amended paragraph 11.4. Given these procedures, ICE Clear Europe believes that CDS Clearing Members will have sufficient information about changes in reference obligations and that the current requirement of a circular is unnecessary.
ICE Clear Europe proposes to amend paragraph 4.4(f) of the CDS Procedures by adding a new sentence to specify that a CDS Clearing Member could designate an Affiliate that is also a CDS Clearing Member to accept CDS Contracts in lieu of the designating Clearing Member for CDS Contracts arising as a result of the existing CDS end-of-day pricing process pursuant to Rule 401(a)(xi). Similarly, the proposed rule change would amend paragraph 11.5 of the CDS Procedures (Self-referencing CDS) to allow a CDS Clearing Member to designate an Affiliate to accept transactions arising out of the existing auction process to be used in the case of self-referencing CDS transactions. ICE Clear Europe represents that this change reflects existing practice for CDS Clearing Members, as documented in certain arrangements between ICE Clear Europe and certain CDS Clearing Members allowing this to take place, but was unintentionally omitted from the CDS Procedures.
The proposed rule change would amend Section 3 of the CDS Procedures regarding margin. Specifically, ICE Clear Europe proposes to add a new paragraph 3.5 to the CDS Procedures to require CDS Clearing Members to provide sign-off via email on weekly cycles by a specified time and day. This change would document existing operational processes.
The proposed rule change would amend the summary table at paragraph 4.2 of the Membership Procedures to extend the deadline for submitting financial statements from 30 to 45 days after the relevant period so that the deadline aligns with other regulatory reporting deadlines, such as the UK's Financial Conduct Authority (FCA) deadlines.
The proposed rule change would make a number of changes to the Membership Procedures to implement the Basel III standard for Clearing Member capital. First, the proposed rule change would amend paragraph 3.3. Paragraph 3.3 provides a definition of the term “Capital” with respect to a Non-FCM/BD Clearing Member. This definition currently provides that capital, as a general matter, includes fully-paid ordinary and preference share capital, retained reserves and, for some purposes and subject to limits, subordinated debt that is perpetual or repayable on 5 years or more notice. The proposed rule change would amend this definition to instead provide that capital, as a general matter, includes fully-paid ordinary and preference share capital, retained reserves and, for some purposes and subject to limits,
The proposed rule change would amend paragraph 3.5(a) of the Membership Procedures to lower, from the current 50% to the proposed 25%, the portion of a Clearing Member's Capital requirement that may be covered by subordinated loans before ICE Clear Europe would require a written undertaking from the Clearing Member to not repay subordinated loans without its consent. ICE Clear Europe represents that this proposed change would align the Clearing Member capital requirement more closely with Basel III requirements, under which subordinated debt may be used, to an upper limit of 25%.
The proposed rule change also would amend paragraph 3.5 of the Membership Procedures to remove irrevocable letters of credit as a potential method that Clearing Members or Sponsored Principals may use to satisfy capital requirements, and to add a new paragraph 3.5(c) to give ICE Clear Europe authority to, at its discretion, require a Clearing Member to post additional cash or collateral in addition to the normal margin requirements. ICE Clear Europe represents that these proposed changes in capital requirements would promote greater consistency with its existing operational implementation of capital requirements for Clearing Members.
ICE Clear Europe proposes to make various clarifications and changes throughout the Complaint Resolution Procedures, including to address typographical errors and promote consistency with its Rules.
Specifically, the proposed rule change would amend paragraph 1.1 to reframe the Complaint Resolution Procedures based on ICE Clear Europe's obligations as a CCP under EMIR.
The proposed rule change would amend paragraph 1.1 to use the defined term “Person” (which is defined in Rule 101) rather than “person,” with conforming changes throughout the Complaint Resolution Procedures. The proposed rule change also would amend paragraphs 1.1 and 1.2 to provide for an independent “Commissioner,” who is responsible for the investigation of complaints generally, and for the appointment of an “Investigator” to investigate a particular complaint. In paragraph 1.3, ICE Clear Europe proposes minor drafting updates to improve clarity.
The amended Complaint Resolution Procedures would refer where appropriate to “Eligible Complaint” instead of the undefined term “complaint” to clarify that only Eligible Complaints (and not other complaints) would be within the scope of the procedures. As a result, the proposed rule change would replace the defined term “Complaint” by the undefined term “complaint” to allow a distinction between complaints generally speaking and those that qualify as “Eligible Complaints.”
In paragraph 2.1, the proposed rule change would amend the definition of “Eligible Complaints” by broadening it to include complaints against any Directors, officers, employees or committees (or committee members) of ICE Clear Europe, which ICE Clear Europe believes is the proper scope for the Complaint Resolution Procedures. The amendments would also clarify that Eligible Complaints may relate to the manner in which ICE Clear Europe has failed to perform applicable regulatory functions. In paragraph 2.2, ICE Clear Europe proposes minor drafting amendments to correct typographical errors and use of defined terms.
The proposed rule change would make drafting improvements in paragraph 3.6 to include “investigation of the” before “Eligible Complaint,” and in paragraph 4.1 to clarify that acknowledgment of the complaint by ICE Clear Europe must be made promptly, and in any case within 5 Business Days of receipt.
ICE Clear Europe proposes to add new paragraph 4.2, which would allow ICE Clear Europe to refer complaints to another recognized body or authorized person if such entity is entirely or partly responsible for handling the subject matter of the complaint, such as an exchange for which ICE Clear Europe clears. To establish the process for ICE Clear Europe to refer such a complaint, the proposed rule change would also add new paragraph 4.3. Such amendments are intended to clarify existing procedures, and avoid a situation where ICE Clear Europe would be forced to address a duplicative complaint or a complaint better handled by another entity. In paragraph 4.4, the proposed rule change would correct minor typographical errors.
The proposed amendments to paragraph 4.5 would clarify that the Investigator must be an individual who has no personal interest or involvement in the matter of the Eligible Complaint, and would also make typographical corrections and similar drafting improvements.
In paragraph 4.7, the proposed rule change would clarify that the Investigator would not be required to disclose any information about the Complainant's identity when drafting its report of the Eligible Complaint, and also would correct minor typographical errors and update cross-references.
In paragraph 4.8 as revised, the proposed rule change would include delivery disputes and appeals in the list of potential ongoing matters that could warrant delay in the consideration of an Eligible Complaint. Amended paragraph 4.12 would include a similar change and correct certain typographical errors.
In paragraph 4.11 as revised, the proposed rule change would clarify that where ICE Clear Europe objects to the referral of a complaint to the Commissioner under specified circumstances (such that ICE Clear Europe can conclude its own investigation), it must submit to the Commissioner the reasons for that determination. The proposed rule change would also update several cross-references in paragraph 4.11.
In paragraph 4.12 as revised, the proposed rule change would expand the list of ongoing matters that would justify delay in the Commissioner's consideration of an Eligible Complaint to be consistent with the list in paragraph 4.8, and also reference other processes under Part 10 of the Rules. The proposed rule change would also amend paragraph 4.14 to make non-substantive drafting improvements.
In paragraph 5 as revised, the proposed rule change would clarify that the Investigator recommends, rather than takes, remedial action. The proposed rule change would amend paragraph 6.3 to add “appeal process” to the list of dispute resolution procedures that a Complainant cannot use if it requires the referral of any Eligible Complaint to the Commissioner pursuant to the Complaint Resolution Procedures. The proposed rule change would also delete the reference to “mediation” in paragraph 5 as it is no longer necessary in light of the other listed types of dispute resolution.
The proposed rule change would amend paragraph 7.2 to clarify that the Commissioner does not have to continue investigating a complaint if the complaint is not an Eligible Complaint. In addition, the proposed rule change would amend paragraph 7.3 to clarify that the Commissioner would only be required to produce a final response where the complaint is an Eligible Complaint.
The proposed rule change would amend paragraph 7.6 to ensure that the Commissioner has access to all relevant personnel (including directors, officers and other persons to whom functions have been outsourced) that may be needed for the purposes of the Eligible Complaint. In addition, the proposed rule change would amend paragraph 7.8 to obligate ICE Clear Europe to inform the Complainant of an alternative Commissioner, when one is appointed, within five Business Days of the date of appointment.
The proposed rule change would also amend paragraph 8.1 to state explicitly that ICE Clear Europe is required to consider the Commissioner's report and recommendations, in addition to informing the Commissioner of any proposed steps it would take in response to the report and recommendations. In addition, the proposed rule change would also make other non-substantive drafting clarifications in paragraph 8.1, and correct typographical errors in paragraphs 8.2 and 8.3. Lastly, the proposed rule change would amend paragraph 11 to include the Investigator as a person subject to the confidentiality obligations with respect to the complaint, and make certain drafting clarifications.
Similar to certain of the changes to Rules described above, the proposed rule change would amend the introduction to the General Contract Terms by removing references to named ICE markets and, in their place, would use the more generic term “relevant Market.” The proposed rule change would also add the standard term “Amendments” to the General Contract Terms to clarify that the terms of any Contract may be amended in the same way as ICE Clear Europe may amend the Rules in accordance with Rule 109 (Alteration of Rules, Procedures, Guidance and Circulars).
Section 19(b)(2)(C) of the Act directs the Commission to approve a proposed rule change of a self-regulatory organization if it finds that such proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to such organization.
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of ICE Clear Europe be designed to promote the prompt and accurate clearance and settlement of securities transactions and, to the extent applicable, derivative agreements, contracts, and transactions, as well as to assure the safeguarding of securities and funds which are in the custody or control of ICE Clear Europe or for which it is responsible.
As discussed above, the proposed rule change would make a number of clarifications and drafting improvements to the Amended Documents, to ensure that the Amended Documents are clear, consistent, and provide an enforceable legal basis for ICE Clear Europe's activities. In the Commission's view, a lack of clarity and consistency in ICE Clear Europe's Rules and Procedures could hinder ICE Clear Europe's ability to promptly and accurately clear and settle transactions and safeguard securities and funds, by possibly leading to disputes over the terms of transactions. Likewise the Commission believes a lack of enforceable legal basis could undermine the legitimacy and finality of ICE Clear Europe's actions in clearing and settling transactions. Thus, the Commission believes the proposed rule change, in general, should help ensure that ICE Clear Europe is able to promptly and accurately clear and settle transactions and safeguard securities and funds which are in its custody or control or for which it is responsible.
In particular, the Commission believes all of the proposed changes to the Rules, as discussed in Part II.A above, would help ensure that ICE Clear Europe is able to promptly and accurately clear and settle transactions and safeguard securities and funds which are in its custody or control or for which it is responsible. For example, the Commission believes the changes to Rule 904 (Transfer of Contracts and Margin on a Clearing Member Event of Default), Rule 907 (Administrative matters concerning an Event of Default), and to relevant definitions in Rule 101 would enhance ICE Clear Europe's default planning and post-default porting processes by providing an EMIR-compliant post-default porting preference structure using Porting Notices that require written consent by the designated Transferee Clearing Member. The Commission further believes that this aspect of the proposed rule change would help facilitate the porting of Customer positions and collateral and the settlement of the transactions resulting from such transfers, which in turn would help to ensure that ICE Clear Europe is able to promptly and accurately clear and settle transactions in the event of a Clearing Member's default and safeguard securities and funds which are in its custody or control or for which it is responsible. Similarly, the Commission believes the changes to Rule 901(a)(iv) to clarify that the declaration of an Event of Default in respect of one Clearing Member is a circumstance in which ICE Clear Europe can declare an Event of Default in respect of another Clearing Member that is a parent or a subsidiary of such Clearing Member would better enable ICE Clear Credit to invoke such default declaration powers and thereby prevent or reduce losses that could result from affiliate cross-defaults. The Commission further believes that losses from a default could interfere with ICE Clear Europe's ability to clear and settle transactions and safeguard securities and funds. Therefore, the Commission believes that these aspects of the proposed rule change, in facilitating ICE Clear Europe's ability to respond to defaults and thereby prevent or reduce losses, would help to ensure that ICE Clear Europe is able to promptly and accurately clear and settle transactions and safeguard securities and funds which are in its custody or control or for which it is responsible. Moreover, the Commission believes the changes to add new Rule 301(o), which would allow ICE Clear Europe to request information when needed on account balances of nominated accounts of the Clearing Member at financial institutions, including for the purpose of calling on available cash where the Clearing
For these reasons, the Commission believes all of the changes to the Rules discussed in Part II.A above would help to ensure that ICE Clear Europe is able to promptly and accurately clear and settle transactions and safeguard securities and funds which are in the custody or control of ICE Clear Europe or for which it is responsible.
Moreover, the Commission believes the changes to the Clearing Procedures discussed in Part II.B above would increase the clarity of the Clearing Procedures by removing references to systems no longer used by ICE Clear Europe. Similarly, the Commission believes that removing the definitions of MFT and ECS, and instead referring to those terms as defined in the Delivery Procedures, would help to ensure that the Clearing Procedures use the correct definitions of those terms, as defined in the Delivery Procedures. The Commission believes that these changes would help to ensure the Clearing Procedures are up-to-date and use correct terms and references, thus decreasing the possibility for error in using and applying the Clearing Procedures, and therefore facilitating the prompt and accurate clearance and settlement of transactions using the Clearing Procedures.
The Commission similarly believes the changes to the Finance Procedures discussed in Part II.C above would help to ensure the Finance Procedures are up-to-date and use correct terms and references. As with the Clearing Procedures, the proposed rule change would remove the definitions of MFT and ECS, and instead refer to those terms as defined in the Delivery Procedures, thus helping to ensure that the Finance Procedures use the correct definitions. Moreover, the Commission believes that removing a reference to the Continuing CDS Rule Provisions, which are no longer in effect, and updating and correcting references to certain ICE Clear Europe committees throughout the Finance Procedures would help to ensure that the Finance Procedures reflect the current documentation and committees in effect at ICE Clear Europe. Finally, the Commission believes that amending the account requirements for members to reflect that ICE Clear Europe clears both EUR and USD denominated CDS contracts, clarifying the effect of negative rates on payments of interest and price alignment amounts, and clarifying that the additional margin requirement would apply on a Currency Holiday would help to ensure that the Finance Procedures are consistent with ICE Clear Europe's operational practices. The Commission believes that these changes would help to ensure the Finance Procedures are up-to-date, clear, and use correct terms and references, thus decreasing the possibility for error in using and applying the Finance Procedures, and therefore facilitating the prompt and accurate clearance and settlement of transactions using the Finance Procedures.
The Commission further believes the changes to the Delivery Procedures discussed in Part II.D above would clarify and update the Delivery Procedures. Specifically, the Commission believes that clarifying the application of current applicable law regarding anti-money laundering and the obligation of Clearing Members to conduct anti-money laundering due diligence would help to ensure the application of relevant and current anti-money laundering obligations to ICE Clear Europe and Clearing Members. Similarly, the Commission believes that adding definitions for current ICE Clear Europe technology systems used in the Delivery Procedures (ECS, MFT, ICE FEC, and MPFE), updating references to those technology systems, and removing references to systems no longer in use, like Crystal, would help reduce the possibility for error in using and applying the Delivery Procedures by ensuring they reference the correct and current ICE Clear Europe internal systems. The Commission further believes that amending Part A of the Delivery Procedures to add a reference to the alternative delivery procedure for Emission Contracts, update references to certain defined terms, and revise the process for the Emissions Alternative Delivery Procedure and a Failed Delivery, would help to ensure the correct application and operation of the delivery provisions with respect to EU Emissions Contracts. Moreover, the Commission believes that deleting Part M and related references to those contracts delisted from the relevant exchange, establishing a procedure to address the Seller's non-delivery of securities under a Financials & Softs Gilt Contract in Part U, correcting references to the settlement facilities and relevant settlement details and settlement procedures for Equity Futures/Options Contracts in Part Z, and updating the table in Part FF regarding the receipt of documents by ICE Clear Europe, would help to ensure the Delivery Procedures reflect the contracts currently cleared by the relevant exchanges and would help to establish effective operational processes for the contracts found in Parts U, Z, and FF. Finally, the Commission believes that making drafting clarifications and typographical corrections throughout the Delivery Procedures would help to reduce the possibility for error in applying the Delivery Procedures. Thus, the Commission believes all of the changes to the Delivery Procedures discussed in Part II.D would clarify and update the Delivery Procedures, thereby facilitating the prompt and accurate clearance and settlement of transactions using the Delivery Procedures.
Similarly, the Commission believes that the proposed changes to the CDS Procedures discussed in Part II.E above would, in general, promote the prompt and accurate clearance and settlement of securities transactions and assure the safeguarding of securities and funds in ICE Clear Europe's custody or control. Specifically, the Commission believes that the changes to the CDS Procedures would enhance the flexibility of ICE Clear Europe's operations, benefitting both ICE Clear Europe and Clearing Members. For example, the Commission believes that adding a new paragraph 3.5 to require CDS Clearing Members to provide sign-off via email on weekly cycles by the time specified by ICE Clear Europe would provide a flexible and efficient means for sign-off, via email. Similarly, the Commission believes that allowing a Clearing Member to designate an Affiliate that is also a CDS Clearing Member to accept CDS Contracts in lieu of it for CDS Contracts arising as a result of the existing CDS end-of-day pricing process and to accept transactions arising out of the existing auction process to be used in the case of self-referencing CDS transactions would give Clearing Members flexibility in determining who is best positioned to
The Commission further believes that the changes to the Membership Procedures discussed in Part II.F above would, in general, promote the prompt and accurate clearance and settlement of securities transactions and assure the safeguarding of securities and funds in ICE Clear Europe's custody or control. Specifically, the Commission believes that updating the definition of Capital; lowering to 25% the portion of a Clearing Member's Capital requirement that may be covered by subordinated loans; removing irrevocable letters of credit as a potential method that Clearing Members or Sponsored Principals may use to satisfy capital requirements; and giving ICE Clear Europe authority to, at its discretion, require a Clearing Member to post additional cash or collateral in addition to the normal margin requirements would help to align ICE Clear Europe's standards for Clearing Member capital with the Basel III standard. The Commission believes this in turn would help to assure consistent and reasonable capital standards for Clearing Members, thereby contributing to the overall financial resiliency of ICE Clear Europe and its ability to promptly and accurately clear and settle transactions and assure the safeguarding of securities and funds in its custody or control.
Moreover, the Commission believes that amending the summary table at paragraph 4.2 to change the deadline for submitting financial statements from 30 to 45 days and to allow ICE Clear Europe to accept different kinds of financial statements from Clearing Members as part of their financial reporting obligations, in circumstances where they do not produce quarterly financial statements, consistent with the proposed change to Rule 205(a)(ii), would provide additional operational flexibility to ICE Clear Europe and Clearing Members. The Commission also believes that amending the summary table at paragraph 4.2 to be consistent with Rule 209 and updating the email address to which Clearing Members should send certain notifications would help to decrease the possibility for error in submitting such notifications. The Commission therefore believes that these changes would generally improve the flexibility of ICE Clear Europe's operations and the application of the Membership Procedures, thus promoting ICE Clear Europe's ability to promptly and accurately clear and settle securities transactions and assure the safeguarding of securities and funds in its custody or control.
As noted above in Part II.G, the proposed rule change would make various changes to the Complaint Resolution Procedures to correct typographical errors and promote consistent use of terminology such as replacing the term “Complaints Resolution Procedure” with “Complaint Resolution Procedures,” and using defined terms such as “Person,” “Commissioner,” and “Eligible Complaint.” The Commission believes these changes would help to strengthen ICE Clear Europe's Complaint Resolution Procedures by making them easier to reference, which in turn supports ICE Clear Europe's ability to carry out the prompt clearance and settlement of transactions while addressing this aspect of its operations. The Commission similarly believes that the other proposed changes to the Complaint Resolution Procedures described in Part II.G above, such as the referral of complaints to another recognized body and details regarding the handling of Eligible Complaints, support the efficient handling of complaints and thus would help to support its clearance and settlement functions.
Finally, as described in Part II.H above, the proposed rule change would amend the introduction to the General Contract Terms to remove references to named ICE markets and instead use the more generic term “relevant Market.” The proposed rule change would also add the standard term “Amendments” to the General Contract Terms to clarify that the terms of any Contract may be amended in the same way as ICE Clear Europe may amend the Rules in accordance with Rule 109 (Alteration of Rules, Procedures, Guidance and Circulars). The Commission believes that these changes to the General Contract Terms will generally help clarify and simplify the Rules and Procedures, and make it easier for ICE Clear Europe to keep such documents up to date notwithstanding potential future changes in the Markets cleared and similar events, as well as to enhance the usefulness of the Procedures with appropriate cross-references. Further, the Commission believes that these proposed changes will in turn help make ICE Clear Europe's documents more effective and consistent with current operational practices and processes, thereby supporting ICE Clear Europe's ability to promptly and accurately clear and settle securities transactions.
Therefore, for these reasons, the Commission finds that the proposed rule change would promote the prompt and accurate clearance and settlement of securities transactions and assure the safeguarding of securities and funds in ICE Clear Europe's custody and control, consistent with the Section 17A(b)(3)(F) of the Act.
Section 17A(b)(3)(G) of the Act requires, among other things, that ICE Clear Europe's rules provide that Clearing Members shall be appropriately disciplined for violation of any provision of ICE Clear Europe's rules by fine or other fitting sanction.
As discussed above, the proposed rule change would add a new summary disciplinary process in proposed Rule 1008 to improve and streamline ICE Clear Europe's process for disciplining Clearing Members for specified violations of the Rules and Procedures, including those that ICE Clear Europe considers to be minor in nature. ICE Clear Europe would be limited to the following sanctions it could impose against Clearing Members for such violations under proposed Rule 1008: The issuance of a private warning or reprimand naming the Clearing Member or a Clearing Member Customer, client or Representative; a fine of up to £50,000; or any combination of the foregoing. The Commission believes that such limited sanctions under the proposed summary disciplinary process would be appropriate forms of discipline against Clearing Members who commit the applicable types of violations under new Rule 1008.
For these reasons, the Commission finds the proposed rule change is consistent with Section 17A(b)(3)(G) of the Act.
Section 17A(b)(3)(H) of the Act
For these reasons, the Commission finds the proposed rule change is consistent with Section 17A(b)(3)(H) of the Act.
Rule 17Ad-22(e)(1) requires that ICE Clear Europe establish, implement, maintain and enforce written policies and procedures reasonably designed to provide for a well-founded, clear, transparent, and enforceable legal basis for each aspect of its activities in all relevant jurisdictions.
As noted above, the proposed rule change would reframe the Complaint Resolution Procedures as based on ICE Clear Europe's obligations as a CCP under EMIR; clarify that only certain kinds of complaints, “Eligible Complaints,” would be part of the complaint resolution process; broaden the definition of “Eligible Complaints” to include complaints against any directors, officers, employees or committees; clarify procedural delays and timing in the process; and add the ability to refer complaints to other responsible entities. The Commission believes that these proposed changes express a well-founded, clear, transparent, and enforceable legal basis for how ICE Clear Europe manages complaints and is therefore consistent with Rule 17Ad-22(e)(1).
As discussed above, the proposed rule change would update various definitions and other provisions in the Rules and Procedures to reflect current laws and regulations in the EU and UK governing anti-money laundering requirements and the requisite levels of due diligence. Proposed new Rule 201(xxxiii) would require Clearing Members to have adequate policies, procedures, systems, and controls relating to Applicable Laws, including anti-money laundering laws. The proposed rule change would amend Rule 1607 (Additional FCM/BD Requirements for Customer Transactions) to require FCM/BD Customers to obtain the authority from beneficial owners to disclose information necessary for anti-money laundering due diligence to the Clearing Member and ICE Clear Europe, and add similar new requirements to the Standard Terms exhibits to the Rules. Similarly, the proposed amendments to the Delivery Procedures would obligate Clearing Members to conduct appropriate anti-money laundering due diligence for any transferors and transferees and provide relevant documentation to ICE Clear Europe and/or the Clearing Member. The Commission believes that these proposed changes would help to establish and maintain a well-founded legal basis for the Rules and Procedures governing ICE Clear Europe's operations under applicable anti-money laundering laws, and are therefore consistent with Rule 17Ad-22(e)(1).
As discussed above, the proposed rule change would amend Rule 201 to clarify the legal basis in the Rules for ICE Clear Europe to require Clearing Members to execute additional documentation in the form of annexes or agreements to the Clearing Membership Agreement in order to be, and remain, eligible for Clearing Membership. As ICE Clear Europe would impose such documentation requirements where necessary to comply with, or address post-Brexit local law group structuring issues in certain EU member states, the Commission believes these proposed amendments provide a well-founded legal basis for ICE Clear Europe to impose such additional documentation requirements, and are therefore consistent with Rule 17Ad-22(e)(1).
As discussed above, the proposed rule change would amend Rule 201 (Clearing Membership Criteria), Rule 1901 (Attaining status as a Sponsored Principal), and Section 10 of the F&O Standard Terms to remove the requirement for Clearing Members, Customers, and Sponsored Principals to be an “eligible contract participant” if they are engaging solely in F&O Contracts. As eligible contract participant status is required under applicable U.S. law to trade swaps and security-based swaps, such as CDS, but is not required to trade futures, the Commission believes these proposed amendments provide a well-founded legal basis for ICE Clear Europe to remove such status requirement, and are therefore consistent with Rule 17Ad-22(e)(1).
As discussed above, the proposed rule change would amend paragraph 3.5(a) of the Membership Procedures to lower the threshold, from 50% to 25%, at which ICE Clear Europe would require a written undertaking from the Clearing Member to not repay subordinated loans without its consent. As this proposed change would align the Clearing Member capital requirement more closely with Basel III requirements applicable to Clearing Members, the Commission believes these proposed amendments provide a well-founded legal basis for ICE Clear Europe to lower such threshold, and are therefore consistent with Rule 17Ad-22(e)(1).
As discussed above, the proposed rule change would make a number of clarifications and drafting improvements to the Amended Documents to explicitly and correctly reference current law; eliminate discrepancies and inconsistencies; comply with applicable legal requirements; use consistent terminology; update cross-references and numbering; and correct drafting errors. The Commission believes that these changes, taken as a whole, would help to ensure that the Amended Documents provide for a well-founded, clear, transparent, and enforceable legal basis for each aspect of ICE Clear Europe's activities in all relevant jurisdictions.
For these reasons, the Commission finds that the proposed rule change is consistent with Rule 17Ad-22(e)(1).
Rule 17Ad-22(e)(2)(i) requires that ICE Clear Europe establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for governance arrangements that are clear and transparent.
As discussed above, the proposed rule change would also amend and update committee references in Rule 916(d) to change the term “Risk Committee” to “relevant product risk committee” to clarify that there are different product risk committees addressing topics specific to F&O and CDS. The proposed rule change would make similar updates to the CDS Risk Committee and FX Risk Committee references in the Finance Procedures by changing them to “CDS Product Risk Committee” and “FX Product Risk Committee,” respectively, and also throughout the CDS Procedures where “CDS Risk Committee” is currently used. The Commission believes that these changes would help to ensure that ICE Clear Europe's governance arrangements are clear and transparent by clearly identifying the various product risk committees involved in governance at ICE Clear Europe.
For these reasons, the Commission finds the proposed rule change is consistent with Rule 17Ad-22(e)(2)(i).
Rule 17Ad-22(e)(6)(ii) requires that ICE Clear Europe establish, implement, maintain, and enforce written policies and procedures reasonably designed to cover its credit exposures to its Clearing Members by establishing a risk-based margin system that, at a minimum, among other matters, marks participant positions to market and collects margin, including variation margin or equivalent charges if relevant, at least daily and includes the authority and operational capacity to make intraday margin calls in defined circumstances.
For this reason, the Commission finds the proposed rule change is consistent with Rule 17Ad-22(e)(6)(ii).
Rule 17Ad-22(e)(10) requires that ICE Clear Europe establish, implement, maintain, and enforce written policies and procedures reasonably designed to establish and maintain transparent written standards that state its obligations with respect to the delivery of physical instruments, and establish and maintain operational practices that identify, monitor, and manage the risks associated with such physical deliveries.
As discussed above, the proposed rule change would amend the Delivery Procedures to update various operational practices and to make other updates and drafting improvements. Specifically, proposed new paragraph 7 would make explicit reference to the alternative delivery procedure for Emission Contracts in the event of a failed delivery, as set out in paragraph 7 (Emissions Alternative Delivery Procedure (“EADP”)) of Part A of the Delivery Procedures (ICE Endex Deliverable EU Emissions Contracts). Amended paragraph 7.3 of Part A would update the manner of settlement of an existing Contract following the entry into an EADP Agreement by a Clearing Member and ICE Clear Europe, so that it would no longer be limited to liquidation on the basis of the Exchange Delivery Settlement Price, but rather, dealt with in the manner specified in the EADP. In addition, amended paragraph 7.5 would provide for a longer time period after a failed delivery for the Clearing Member and ICE Clear Europe to enter into an EADP Agreement or effect delivery under the EADP before ICE Clear Europe may refer the matter to the relevant exchange or take other reasonable next steps in its discretion. The Commission believes these changes would establish and update transparent written procedures for failed deliveries of Emissions Contracts, and provide greater flexibility for ICE Clear Europe to manage the risks associated with such failed deliveries.
With respect to Financials & Softs Gilt Contracts, the proposed rule change would amend Part U of the Delivery Procedures to add a new paragraph 2 (Failed Settlement and Non-Delivery of Stock) to establish a procedure to address the Seller's non-delivery of securities under a Financials & Softs Gilt Contract, including the actions ICE Clear Europe may take to promote settlement in accordance with the contract terms and the requirements of the CREST central securities depository, as well as the express allocation of the costs of such steps to the Clearing Member who failed to make delivery. Proposed new paragraph 2.1 in amended Part U would establish ICE Clear Europe's procedure to address the Seller's partial delivery of available Gilts and the resulting partial settlement between the Buying Clearing Member and the Selling Clearing Member. The Commission believes these changes in Part U would establish transparent written standards and procedures for handling failed deliveries and partial deliveries of Financials and Softs Gilt
The proposed rule change also would amend Part Z of the Delivery Procedures to make various updates to reference the correct settlement facilities and relevant settlement details and settlement procedures for Equity Futures/Options Contracts. Amended paragraph 2.3 (Partialling) and paragraph 3 (Failed Settlements and Non-Delivery of Stock) would clarify the processes for dealing with partial deliveries and failed deliveries, including the steps that ICE Clear Europe may take to facilitate delivery, the rights and responsibilities of the buying clearing member with respect to onward deliveries under other contracts, and the allocation of costs to clearing members. Similar to the changes in Part U, the Commission believes these changes in Part Z would establish transparent written standards and procedures for handling partial deliveries and failed deliveries of Equity Futures/Options Contracts and for managing their associated risks.
Throughout the Delivery Procedures, the proposed rule change would also update and clarify operational processes and ICE Clear Europe systems, delivery documentation summaries, timetables, and other relevant provisions. The Commission believes these changes would help ICE Clear Europe establish and maintain transparent and up-to-date operational practices to help manage the risks associated with physical deliveries and settlement.
For these reasons, the Commission finds the proposed rule change is consistent with Rule 17Ad-22(e)(10).
Rule 17Ad-22(e)(13) requires that ICE Clear Europe establish, implement, maintain, and enforce written policies and procedures reasonably designed to ensure it has the authority and operational capacity to take timely action to contain losses and liquidity demands and continue to meet its obligations by, at a minimum, requiring its Clearing Members and, when practicable, other stakeholders to participate in the testing and review of its default procedures, including any close-out procedures, at least annually and following material changes thereto.
As discussed above, the proposed rule change would amend Rule 903(c) to clarify that ICE Clear Europe's right to authorize hedging transactions in a default scenario would include transactions on a Market, any other Exchange, or over the counter, and that hedging transactions need not be cleared if transacted on an exchange which is not a Market, or as requested or directed otherwise by ICE Clear Europe. The Commission believes such changes would enhance ICE Clear Europe's authority to use hedging to help contain losses and liquidity demands following an Event of Default.
As discussed above, the proposed rule change would amend Rule 901 (Events of Default affecting Clearing Members or Sponsored Principals) to clarify that the declaration of a Clearing Member's Event of Default would authorize ICE Clear Europe to declare an Event of Default in respect of another Clearing Member that is a Group Company,
Finally, as discussed above, the proposed rule change would make a number of drafting improvements to Rule 904(b) (Transfer of Contracts and Margin on a Clearing Member Default), Rule 905(g) (Termination and close out of Contracts on a Clearing Member Event of Default), and Rule 908(i) (Application of Assets upon an Event of Default), that would enhance the clarity of ICE Clear Europe's default management procedures and support ICE Clear Europe's operational capacity to take timely action to contain losses and liquidity demands.
For these reasons, the Commission finds the proposed rule change is consistent with Rule 17Ad-22(e)(13).
Rule 17Ad-22(e)(14) requires that ICE Clear Europe establish, implement, maintain, and enforce written policies and procedures reasonably designed to enable the segregation and portability of positions of a Clearing Member's customers and the collateral provided to ICE Clear Europe with respect to those positions and effectively protect such positions and related collateral from the default or insolvency of that Clearing Member.
As discussed above, the proposed rule change would amend Rule 209(d) to facilitate membership terminations in the context of a corporate group reorganization where a new Clearing Member that is an Affiliate will be receiving the terminating Clearing Member's Open Contract Positions, which include Customer Account Positions. The Commission believes these amendments would help to enable the portability of a customer's contracts in the specific context of a Clearing Member termination.
For these reasons, the Commission finds the proposed rule change is consistent with Rule 17Ad-22(e)(14).
Rule 17Ad-22(e)(17)(i) requires that ICE Clear Europe establish, implement, maintain, and enforce written policies and procedures reasonably designed to manage its operational risks by identifying the plausible sources of operational risk, both internal and external, and mitigating their impact through the use of appropriate systems, policies, procedures, and controls.
The Commission believes that the proposed amendment to Rule 202 (Obligations of Clearing Members) to require Clearing Members to have competent staff representatives accessible to ICE Clear Europe for two hours before the start of the business day would help ICE Clear Europe ensure that its operational policies are consistent with its operational practices for appropriately managing the risks associated with Clearing Members meeting time-sensitive morning margin calls.
The Commission believes that the proposed addition of new Rule 301(o), which would allow ICE Clear Europe to request information when needed on account balances of nominated accounts of the Clearing Member at financial institutions, including for the purpose of calling on available cash where the Clearing Member has failed to meet a payment obligation or determining whether the Clearing Member is, or is likely to be, in default, would help ICE Clear Europe reduce operational risks that have arisen in practice when payment banks have refused to provide such information to ICE Clear Europe.
The Commission believes that the proposed new definitions of ICE Clear Europe's operational systems in the Delivery Procedures and updated references to such systems throughout the Amended Documents would help ICE Clear Europe manage operational risks by upgrading legacy systems and ensuring that all internal and external stakeholders are aware of the new systems and their basic operational purposes and functionalities.
As discussed above, the proposed rule change would make various amendments to certain Rules to ensure clear and consistent operational practices for Contracts. Amended Rule 401(o) would clarify that a Customer-CM CDS Transaction arises at the same time as the Contract for consistency with the equivalent rule for a Customer-CM F&O Transaction. Amended Rule 406 would clarify how open contract positions in F&O Contracts are netted and aggregated. Amended Rule 409 would clarify that ICE Clear Europe may evidence its consent to amendments, waivers, and variations of Contract Terms by issuing a Circular. The Commission believes these changes would help ICE Clear Europe reduce operational risks by formalizing appropriate and consistent operational practices related to the Contracts it clears.
Finally, the Commission believes the proposed amendments to Rule 105(a) to shorten the termination period for ICE Clear Europe's service withdrawal as a clearing house for any product where there is no open interest in the relevant Set, and to clarify that the relevant exchange's notice period and notification responsibility would apply to a product termination that follows actions by the exchange, such as a de-listing, would help ICE Clear Europe manage and mitigate both internal and external sources of operational risks associated with product terminations.
For these reasons, the Commission finds the proposed rule change is consistent with Rule 17Ad-22(e)(17)(i).
Rule 17Ad-22(e)(18) requires that ICE Clear Europe establish, implement, maintain, and enforce written policies and procedures reasonably designed to establish objective, risk-based, and publicly disclosed criteria for participation, which permit fair and open access by direct and, where relevant, indirect participants and other financial market utilities, require participants to have sufficient financial resources and robust operational capacity to meet obligations arising from participation, and monitor compliance with such participation requirements on an ongoing basis.
The Commission believes that the changes to the Membership Procedures discussed above would establish objective, risk-based, and publicly disclosed criteria for participation, by updating the definition of Clearing Member Capital and related requirements applicable to Clearing Members to align with the Basel III standard. Similarly, the Commission believes that changing the deadline for submitting financial statements from 30 to 45 days; allowing ICE Clear Europe to accept different kinds of financial statements from Clearing Members as part of their financial reporting obligations; and providing that termination of a Clearing Membership Agreement or membership as a Clearing Member would become effective no less than 30 Business Days after the date of the Termination Notice Time or pursuant to Rule 917(c), would establish objective, risk-based, and publicly disclosed criteria for participation, by setting forth clear deadlines and standards applicable to Clearing Members. Finally, the Commission believes that adding a new paragraph 3.5 to the CDS Procedures to require Clearing Members to provide sign-off via email on weekly cycles by the time specified by ICE Clear Europe would establish an objective, risk-based, and publicly disclosed requirement upon Clearing Members. Therefore, the Commission finds these aspects of the proposed rule change are consistent with Rule 17Ad-22(e)(18).
Finally, the Commission believes that the proposed amendment to Rule 202 (Obligations of Clearing Members) to require Clearing Members to have competent staff representatives accessible to ICE Clear Europe for two hours before the start of the business day would help ICE Clear Europe ensure that its participants have sufficient financial resources and operational capacity to meet their morning margin call obligations.
For these reasons, the Commission finds the proposed rule change is consistent with Rule 17Ad-22(e)(18).
On the basis of the foregoing, the Commission finds that the proposed rule change, as modified by Partial
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 1, 2021, Miami International Securities Exchange, LLC (“MIAX”), MIAX Emerald, LLC (“MIAX Emerald), and MIAX PEARL, LLC (“MIAX Pearl”) (each an “Exchange;” collectively, the “Exchanges”) each filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Each Exchange currently provides certain of its members the option to purchase purge ports to assist in their quoting activity.
MIAX and MIAX Emerald previously charged a flat fee of $1,500 per month for purge ports, and MIAX Pearl previously charged a flat fee of $750 per month for purge ports, regardless of the number of matching engines to which a member connected and consequently regardless of the number of purge ports allocated to the member. Each Exchange proposes to increase the flat monthly fee to $7,500.
Pursuant to Section 19(b)(3)(C) of the Act,
When an exchange files a proposed rule change with the Commission, including fee filings, it is required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder applicable to the exchange.
Section 6 of the Act, including Sections 6(b)(4), (5), and (8), requires, among other things, that the rules of an exchange: (1) Provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities;
In support of their proposals, the Exchanges state that the use of purge ports is completely optional, and no options market participant is required by rule, regulation, or competitive forces to use them.
The Exchanges also state that they operate in a highly competitive environment, and if an exchange sets non-transaction fees that are too high for its relevant marketplace, market participants can choose to no longer access that particular exchange.
The Exchanges further state that the increased monthly flat fee for purge ports is competitive with fees charged by other exchanges that offer comparable purge port services.
The one comment letter received to date challenges several of the Exchanges' assertions.
In temporarily suspending the Exchanges' proposed rule changes, the Commission intends to further consider whether the proposed purge port fees are consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule changes satisfy the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; are designed to perfect the mechanism of a free and open market and a national market system and to protect investors and the public interest, and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule changes.
In addition to temporarily suspending the proposal, the Commission also hereby institutes proceedings pursuant to Sections 19(b)(3)(C)
Pursuant to Section 19(b)(2)(B) of the Act,
• Whether the Exchanges have demonstrated how the proposed fees are consistent with Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange “provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities”;
• Whether the Exchanges have demonstrated how the proposed fees are consistent with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be designed to “perfect the mechanism of a free and open market and a national market
• Whether the Exchanges have demonstrated how the proposed fees are consistent with Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].”
As discussed in Section III above, the Exchanges made various arguments in support of the proposal, and the Commission received comment disputing the Exchanges' arguments and expressing concerns regarding the proposal.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposal is consistent with the Act, and specifically, with its requirements that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers, and other persons using its facilities; are designed to perfect the mechanism of a free and open market and a national market system, and to protect investors and the public interest; are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers; and do not impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Act;
The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by September 23, 2021. Rebuttal comments should be submitted by October 7, 2021. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
The Commission asks that commenters address the sufficiency and merit of the Exchanges' statements in support of the proposals, in addition to any other comments they may wish to submit about the proposed rule changes.
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule changes, including whether the proposed rule changes are consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 12, 2021, Fixed Income Clearing Corporation (“FICC”) filed with the Securities and Exchange Commission (“Commission”) advance notice SR-FICC-2021-801 pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, entitled Payment, Clearing and Settlement Supervision Act of 2010 (“Clearing Supervision Act”),
The Commission is publishing this notice to solicit comments on Amendment No. 1 from interested persons and, for the reasons discussed below, is hereby providing notice of no objection to the Advance Notice.
Repos involve a pair of securities transactions between two parties. The parties agree to the terms of the trade, including the securities, principal amount, interest rate, haircut, and tenor (
FICC serves as CCP and provides clearance and settlement services to facilitate both bilateral and tri-party repo transactions. FICC facilitates bilateral repos
FICC facilitates tri-party repos
In 2005, FICC established the Sponsored Service, allowing eligible members to sponsor their clients into a limited form of membership.
For operational and administrative purposes, FICC interacts solely with the Sponsoring Member as agent for purposes of the day-to-day satisfaction of its Sponsored Members' obligations to and from FICC, including their securities and funds-only settlement obligations.
Currently, the Sponsored Service only facilitates trading in bilateral DVP repos, not tri-party repos. In the Advance Notice, FICC proposes to expand the Sponsored Service to accommodate tri-party repo trading, which it believes would increase term repo activity within the Sponsored Service. FICC states that several market participants have indicated that they currently transact tri-party term repos outside of central clearing because they are not operationally equipped to perform the collateral management and other functions associated with term DVP repos.
Therefore, FICC proposes to add the Sponsored GC Service, which would allow (but not require) Sponsoring Members and their Sponsored Members to trade general collateral repos with each other on the tri-party platform of a Sponsored GC Clearing Agent Bank
Sponsored GC Trades would only be between a Sponsored Member and its Sponsoring Member. FICC would novate only the End Legs of Sponsored GC Trades. Consistent with the current settlement process of such tri-party repos outside of central clearing, the Start Legs of Sponsored GC Trades would continue to settle on a trade-for-trade basis on the tri-party platform of a Sponsored GC Clearing Agent Bank.
Accrued repo interest on Sponsored GC Trades would be paid and collected by FICC on a daily basis. Additionally, if the market value of the securities collateral decreases from its market value at the Start Leg, the cash borrower would be required deliver to FICC additional securities (and/or cash) such that the market value of the total securities collateral remains at least equal to its market value at the Start Leg. Conversely, if the market value of the securities collateral increases from its value at the Start Leg, the cash lender would be required to deliver to FICC securities (and/or cash) such that the market value of the remaining securities collateral remains at least equal to its market value at the Start Leg. Such additional securities (and/or cash) must be delivered within the timeframe set forth in a proposed new schedule of Sponsored GC Trade timeframes set forth in the Rules.
In order to facilitate settlement of securities and cash obligations, FICC would direct each party to a Sponsored GC Trade to make any payment or delivery due to FICC in respect of a Sponsored GC Trade (except for certain funds-only settlement obligations, as discussed below) directly to the relevant pre-novation counterparty. As a result, each transfer of securities and daily repo interest would be made directly between the Sponsored Member and its Sponsoring Member via the tri-party repo platform of a Sponsored GC Clearing Agent Bank.
FICC would manage its market risk with respect to Sponsored GC Trades similar to the manner in which FICC manages existing trades within the Sponsored Service. To mitigate market risk, FICC would calculate the Value at Risk (“VaR”) margin component (“VaR Charge”)
Additionally, FICC would assign a symbol to each Sponsored Member to facilitate FICC's ability to surveil the Sponsored Member's activity across its Sponsored GC Trades as well as its other Sponsored Member Trades within the existing Sponsored Service (both with the same Sponsoring Member and across Sponsoring Members, if applicable). In addition, FICC would apply certain heightened requirements that apply to certain Sponsoring Members within the Sponsored GC Service as well.
In addition, FICC would manage the mark-to-market risk associated with unaccrued repo interest on a Sponsored GC Trade through a proposed new interest rate mark component of funds-only settlement.
Currently, trades between a Sponsoring Member and its Sponsored Member do not independently create liquidity risk for FICC. Under its Rules, if a Sponsoring Member defaults, FICC may close out (that is, cash settle) the Sponsored Member trades of the defaulting Sponsoring Member.
As a result, to the extent a Sponsoring Member either (1) runs a matched book of Sponsored Member trades (
Since Sponsored GC Trades would not involve third-party members, such trades would impact FICC's liquidity risk in a similar manner to trades between a Sponsoring Member and its Sponsored Member in the current Sponsored Service. As a result, FICC proposes to manage the liquidity risk associated with Sponsored GC Trades in the same manner that it currently manages such risk for other trades between a Sponsoring Member and its Sponsored Member.
On April 25, 2017, the Commission approved FICC's adoption of the Clearing Agency Liquidity Risk Management Framework (“Framework”), which broadly describes FICC's liquidity risk management strategy and objective to maintain sufficient liquid resources in order to meet the potential amount of funding required to settle outstanding transactions of a defaulting member (including affiliates) in a timely manner.
FICC determines the total size of the CCLF based on FICC's potential cash settlement obligations that would result from the default of the member (including affiliates) presenting the largest liquidity need to FICC over a specified look-back period, plus an additional liquidity buffer. Under the proposal in the Advance Notice, FICC would not change the method by which it determines the total size of the CCLF.
FICC uses a tiered approach to allocate the total size of the CCLF among its members to arrive at the amount of each member's CCLF obligation. FICC allocates $15 billion of the total size of the CCLF among all members.
Currently, FICC does not impose a CCLF obligation on a Sponsoring Member to the extent the Sponsoring Member runs a matched book of Sponsored Member trades. This is because to determine a Sponsoring Member's CCLF obligation, FICC nets all of the positions recorded in the Sponsoring Member's omnibus account (regardless of whether they relate to the same Sponsored Member) and separately nets all of the positions in the Sponsoring Member's netting account.
However, if a Sponsoring Member enters into a Sponsored Member trade without entering into an offsetting transaction, the Sponsoring Member is subject to CCLF obligations for the position of its Sponsored Member recorded in its omnibus account as well as its own position arising from the Sponsored Member trade recorded in its netting account. Although the positions in the Sponsoring Member's omnibus account and netting account offset each other, FICC does not currently net such positions for CCLF purposes because CCLF allocations are determined at the participant account level.
As described above, trades between a Sponsoring Member and its Sponsored Member do not independently create liquidity risk for FICC, and, therefore, FICC believes that such trades should not affect the Sponsoring Member's CCLF obligation. To ensure that a Sponsoring Member's CCLF obligation is calculated to reflect the lack of liquidity risk to FICC associated with Sponsored Member trades, FICC proposes to take into account, for CCLF calculation purposes, any offsetting settlement obligations between a Sponsoring Member's netting account and its omnibus account. This proposed change would ensure that all Sponsored Member trades, whether perfectly offset by other Sponsored Member trades (
Although, as noted above, the proposal in the Advance Notice would not affect the method by which FICC determines the total CCLF amount, FICC's proposal to net offsetting trades between a Sponsoring Member and its Sponsored Member for CCLF calculation purposes would affect the allocation of CCLF obligations over $15 billion to other members. Specifically, as described above, under the current Rules, if a Sponsoring Member enters into a Sponsored Member trade without entering into an offsetting transaction, the Sponsoring Member is subject to CCLF obligations for the position of its Sponsored Member recorded in its omnibus account as well as its own position arising from the Sponsored Member trade recorded in its netting account. Under the proposal, the Sponsoring Member would not incur CCLF obligations for such transactions. Therefore, a Sponsoring Member's peak daily liquidity is currently higher than it would be under the proposal. This, in turn, may decrease the frequency with which a Sponsoring Member's daily peak liquidity reaches into higher supplemental liquidity tiers. As a result,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the Advance Notice is consistent with the Clearing Supervision 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.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-FICC-2021-801 and should be submitted on or before September 17, 2021.
Although the Clearing Supervision Act does not specify a standard of review for an advance notice, the stated purpose of the Clearing Supervision Act is instructive: To mitigate systemic risk in the financial system and promote financial stability by, among other things, promoting uniform risk management standards for SIFMUs and strengthening the liquidity of SIFMUs.
Section 805(a)(2) of the Clearing Supervision Act authorizes the Commission to prescribe regulations containing risk management standards for the payment, clearing, and settlement activities of designated clearing entities engaged in designated activities for which the Commission is the supervisory agency.
• To promote robust risk management;
• to promote safety and soundness;
• to reduce systemic risks; and
• to support the stability of the broader financial system.
Section 805(c) provides, in addition, that the Commission's risk management standards may address such areas as risk management and default policies and procedures, among others areas.
The Commission has adopted risk management standards under Section 805(a)(2) of the Clearing Supervision Act and Section 17A of the Exchange Act (the “Clearing Agency Rules”).
The Commission believes that the Advance Notice is consistent with the stated objectives and principles of Section 805(b) of the Clearing Supervision Act because the changes proposed in the Advance Notice are consistent with reducing systemic risks, supporting the stability of the broader financial system, promoting robust risk management, and promoting safety and soundness.
The Commission believes that FICC's proposal to add the Sponsored GC Service to the existing Sponsored Service is consistent with the principles of reducing systemic risk and supporting the stability of the broader financial system. As described above in Section I.B., FICC proposes to add the Sponsored GC Service to facilitate centrally cleared tri-party repo trading between a Sponsored Member and its Sponsoring Member within FICC's Sponsored Service. The Sponsored GC Service is designed to enable a greater number of tri-party repo transactions to be eligible for FICC's netting services and subject to FICC's guaranteed settlement, novation, and risk management, which should help decrease the settlement and operational risk of such transactions relative to those made outside of central clearing. This risk reduction should, in turn, enhance the stability of the tri-party repo market.
The Commission also believes that FICC's proposal to change the CCLF allocation methodology is consistent with the principles of reducing systemic risks and supporting the stability of the broader financial system. As discussed above in Section I.C., trades between a Sponsoring Member and its Sponsored Member do not independently create liquidity risk for FICC. However, under the current Rules, if a Sponsoring Member enters into a Sponsored Member trade without entering into an offsetting transaction, the Sponsoring Member is subject to CCLF obligations for the Sponsored Member's position in the Sponsoring Member's omnibus account as well as its own position arising from the Sponsored Member trade recorded in its netting account. Although the positions in the Sponsoring Member's omnibus account and netting account offset each other, FICC does not currently net such positions for CCLF purposes because CCLF allocations are determined at the participant account level. FICC proposes to change the Rules to allow netting, for CCLF allocation purposes, of offsetting positions in a Sponsoring Member's omnibus account and netting account. FICC designed this proposal to ensure that a Sponsoring Member's CCLF obligation aligns more closely with the actual liquidity risk its trading activity presents to FICC. This, in turn, may decrease the frequency with which a Sponsoring Member's daily peak liquidity needs reach into higher CCLF supplemental liquidity tiers, resulting in a larger pro-rata allocation of CCLF obligations among other members whose daily peak liquidity needs reach into those supplemental liquidity tiers.
Based on the foregoing, FICC's current CCLF allocation methodology subjects Sponsoring Members to CCLF obligations beyond the level of risk presented by their trading activity, essentially requiring those Sponsoring Members to partially subsidize the CCLF obligations of other members who would otherwise bear larger CCLF obligations under the proposal.
FICC's proposal to change the CCLF allocation methodology would result in a distribution of CCLF obligations that better aligns with the liquidity risk each member's trading activity presents to FICC. Market stability is enhanced when market participants are incentivized to manage the actual risks presented by their trading activity. Accordingly, the Commission believes that FICC's proposal to change the CCLF allocation methodology would help reduce systemic risk and support the stability of the broader financial system, consistent with Section 805(b) of the Act.
The Commission believes that FICC's proposals in the Advance Notice are consistent with the objectives of promoting robust risk management and promoting safety and soundness at FICC. With respect to the proposed Sponsored GC Service, FICC would leverage its existing risk management tools to manage the risks associated with repos transacted. For example, FICC would manage its market risk with respect to Sponsored GC Trades similar to the manner in which FICC manages existing trades within the Sponsored Service. Specifically, FICC would calculate the VaR Charge for each Sponsored Member based on its activity in the Sponsored Service, including its activity in the proposed Sponsored GC Service. The VaR Charge for the Sponsoring Member's omnibus account would continue to be the sum of the individual VaR Charges for each Sponsored Member client (
Moreover, the Advance Notice includes a proposal for a new risk management feature for the Sponsored Service. Specifically, FICC would assign a symbol to each Sponsored Member to facilitate FICC's ability to surveil the Sponsored Member's activity across its Sponsored GC Trades as well as its other Sponsored Member Trades within the existing Sponsored Service. In addition, the new Sponsored GC Service would continue to apply certain heightened requirements on particular types of Sponsoring Members. The foregoing risk management measures would help FICC prevent and otherwise manage the risks presented by the potential default of a member within Sponsored GC Service. Accordingly, the Commission believes that the proposed Sponsored GC Service would promote robust risk management and safety and soundness at FICC, consistent with Section 805(b) of the Act.
The Commission also believes that FICC's proposals in the Advance Notice are consistent with the objective of promoting safety and soundness in the tri-party repo market. As discussed above, the Sponsored GC Service would make the risk-reducing benefits of central clearing available to a greater portion of trades in the tri-party repo market. Also, as described above in Section III.A.1., FICC's proposed CCLF allocation methodology would reduce CCLF obligations for Sponsoring Members with respect to Sponsored Member trades entered into without offsetting (
Additionally, the Commission also believes that FICC's proposal to change the CCLF allocation methodology is consistent with the principle of promoting robust risk management. As described above in Section II.C., FICC's proposal to change the CCLF allocation methodology would not impact FICC's current methodology for determining the total amount of the CCLF. As a result, FICC would retain its current level of liquid resources. FICC's proposal would only change the allocation of CCLF obligations among FICC's members. As described above in this Section III.A.1., FICC's proposed CCLF allocation methodology would result in a CCLF obligation for each member that better corresponds to the actual liquidity risk each member's trading activity presents to FICC. Accordingly, the Commission believes FICC's proposed CCLF allocation methodology would promote robust risk management because it would better align the costs for a member to participate in FICC with the level of risk the member's trading activity presents to FICC, while still maintaining the same overall level of liquidity resources at FICC.
Rule 17Ad-22(e)(7) under the Exchange Act requires a covered clearing agency to establish, implement, maintain, and enforce written policies and procedures reasonably designed to effectively measure, monitor, and manage the liquidity risk that arises in or is borne by the covered clearing agency.
FICC's proposal would not impact FICC's current methodology for determining the total amount of the CCLF as a liquidity resource. As discussed above in Section III.A.1., FICC proposes to change the Rules regarding CCLF allocation to ensure that a Sponsoring Member's CCLF obligation aligns more closely with the actual liquidity risk its trading activity presents to FICC. As a result, FICC's proposed CCLF allocation methodology represents more efficient liquidity risk management than the current methodology. Accordingly, the Commission believes that FICC's proposed CCLF allocation methodology is consistent with Rule 17Ad-22(e)(7).
Rule 17Ad-22(e)(21) under the Exchange Act requires a covered clearing agency to establish, implement, maintain, and enforce written policies and procedures reasonably designed to be efficient and effective in meeting the requirements of its participants and the markets it serves, including the clearing agency's clearing and settlement arrangements and the scope of products cleared or settled.
By the Commission.
On February 12, 2021, New York Stock Exchange LLC, NYSE American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National, Inc. (collectively, the “Exchanges”) each filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to issue an order approving or disapproving the proposed rule changes so that it has sufficient time to consider the proposed rule changes, the issues raised in the comment letter that has been submitted in connection therewith, and the Exchanges' response to the comment letter. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to (1) amend Form CMA (Continuing Membership Application Form) required under Rule 1017 (Application for Approval of Change in Ownership, Control, or Business Operations) to conform to amendments to the Membership Application Program (“MAP”) rules
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The MAP rules require an applicant for continuing membership to file an application that includes a Form CMA.
On December 10, 2020, FINRA amended the MAP rules, among other FINRA rules, to address the issue of persons with a significant history of misconduct and the member firms that employ them.
As a result of the recent amendments to the MAP rules, FINRA is proposing to amend Form CMA to: (1) List in the section of the form entitled “Type of Continuing Membership Application” all of the events under Rule 1017(a) that require a member to file Form CMA; (2) incorporate questions into Form CMA that relate specifically to Rule 1017(a)(7); and (3) make other non-substantive and technical changes in the form for clarity and consistency, and to promote efficiency. FINRA believes that these proposed conforming changes to Form CMA and the non-substantive and technical changes will help guide an applicant to provide the responses needed to demonstrate that it can meet the standards set forth under Rule 1014(a), and to facilitate FINRA's review of the application in light of the recent admendments to the MAP rules.
As noted above, Form CMA is organized into sections that correspond to the standards for admission set forth in Rule 1014(a), with each section containing its own set of questions, some of which are mandatory, related to that particular standard for admission.
Specifically, the proposed changes to Form CMA's “Type of Continuing Membership Application” section would add the following three types of changes in ownership, control, or business operations that an applicant may select, as applicable, with references to the corresponding provisions in Rule 1017(a)(6)
□ Any direct or indirect acquisition or transfer of a member's assets or any asset, business or line of operation where the transferring member or an Associated Person of the transferring member has a “covered pending arbitration claim,” an unpaid arbitration award or an unpaid settlement related to an arbitration (FINRA Rule 1017(a)(6)(A))
□ Business expansion to add one or more Associated Persons involved in sales and one or more of those Associated Persons has a “covered pending arbitration claim,” an unpaid arbitration award or an unpaid settlement related to an arbitration (FINRA Rule 1017(a)(6)(B))
□ Natural person seeks to become an owner, control person, principal or registered person of a member and has, in the prior five years, one or more “final criminal matters” or two or more “specified risk events” (FINRA Rule 1017(a)(7))
These proposed conforming changes to this section of Form CMA will list all of the events under Rule 1017(a). Additionally, the specific references on Form CMA to the applicable subsections of Rule 1017 will give applicants clarity about which events require them to submit Form CMA to FINRA for approval.
Rule 1017(i) provides that in rendering a decision on a CMA, FINRA must consider whether the applicant and its associated persons meet each of the standards in Rule 1014(a). FINRA is proposing to amend two sections in Form CMA, which are “Standard 1: Overview of the Applicants,” corresponding to Rule 1014(a)(1) (“Standard 1”), and “Standard 3: Compliance with securities laws, just and equitable principles of trade,” corresponding to Rule 1014(a)(3) (“Standard 3”). FINRA believes that these proposed changes would conform Form CMA to, and are necessary to effectively account for, Rule 1017(a)(7). The proposed amendments to Form CMA are described in further detail below.
Standard 1 requires FINRA to determine whether the application and all supporting documents are complete and accurate. Form CMA's Standard 1 section has several questions that, in general, focus on understanding the circumstances surrounding the contemplated change or event set forth under Rule 1017(a), and are intended to elicit from the applicant the information necessary for FINRA to assess whether Standard 1 is met. For example, the applicant is required to provide a complete description of the contemplated change, the persons or entities that will become associated or affiliated with the applicant as a result of the contemplated change, and to the extent applicable, a description of the liabilities that will not be included in a transfer of assets or a line of business.
FINRA is proposing to add several new questions to this section that would require the applicant to provide information necessary to support compliance with Rule 1017(a)(7). These proposed questions are intended to collect the necessary information in an efficient manner, as further explained below.
Proposed new Question 5 would require, as marked by the asterisk, the applicant to provide a “yes” or “no” answer to the following question:
5. Is this application required because the Applicant seeks to add a natural person as an owner, control person, principal or registered person who, in the prior five years, has one or more “final criminal matters” or two or more “specified risk events” (as defined in FINRA Rule 1011)?* (As Rule 1017(a)(7) provides, the term “owner” has the same meaning as “direct owner” and “indirect owner” on Form BD Schedules A and B, as amended from time to time, and the term “control person” means a person who would have “control” as defined on Form BD, as amended from time to time.)
a. If the answer to Question 5 is “yes,” for each “final criminal matter” or “specified risk event,” if the matter or event has been reported on a Uniform Registration Form (
The proposed conforming changes to Standard 1 of Form CMA are intended to collect necessary information efficiently. Proposed Question 5.a. would reduce the burden on firms to provide FINRA with duplicate information by not requiring applicants to describe each “final criminal matter” or “specified risk event” that was already described on a Uniform Registration Form. Thus, if the matter or event has already been reported on a Uniform Registration Form, the applicant would only need to provide the subject party and that person's CRD number. If the matter or event has not been reported on a Uniform Registration Form, the applicant also would be required to provide a description of the nature of the activity, any findings, any fine or other dispositions, to support compliance with Rule 1017(a)(7). Further, requiring firms to provide the subject party's CRD number would facilitate FINRA's coordination of information entered on Form CMA with information that has been entered on a Uniform Registration Form or provided in a related materiality consultation, and thus enable FINRA to more efficiently monitor for compliance with Rule 1017(a)(7).
Form CMA's Standard 1 section also requests the applicant to provide information on contemplated changes in direct ownership and indirect ownership. For example, the applicant is currently prompted to provide, as applicable, the proposed direct or indirect owner's CRD number, name, roles, the date the role was acquired, the person's ownership percentage, and whether the person is a “control person,” among other information. Rule 1017(a)(7) applies when a natural person seeking to become an “owner” or “control person” (among other roles) has, in the prior five years, “one or more final criminal matters or two or more specified risk events.” Rule 1017(a)(7) further provides that, for purposes of
Standard 3 requires FINRA to determine whether an applicant and its associated persons “are capable of complying with” the applicable securities laws and regulations, and with applicable FINRA rules. Standard 3 sets forth several factors, including past and current disciplinary actions and customer claims, that FINRA must consider in making that determination. The existence of certain factors that “[raise] a question of capacity to comply with the federal securities laws and the rules of [FINRA]” results in a rebuttable presumption to deny the application.
FINRA is proposing to add new questions to Form CMA's Standard 3 section for the same reason that FINRA is proposing new questions to Form CMA's Standard 1 section, which is to require the applicant to provide information necessary to support compliance with Rule 1017(a)(7). These proposed questions are intended to collect the necessary information in an efficient manner, as further explained below.
FINRA is proposing to add new Question 5 to Form CMA's Standard 3 section, using language similar to proposed Question 5 in Form CMA's Standard 1 section. A similar question in Form CMA's Standard 3 section is needed because information concerning a person described in Rule 1017(a)(7) would be relevant to a CMA filed pursuant to other subparagraphs of Rule 1017(a).
5. Does this application propose to add a natural person as an owner, control person, principal or registered person who, in the prior five years, has one or more “final criminal matters” or two or more “specified risk events”?*
b. If the answer to Question 5.a. is “no,” for each “final criminal matter” or “specified risk event,” if the matter or event has been reported on a Uniform Registration Form (
The proposed conforming changes to Standard 3 of Form CMA are intended to collect necessary information efficiently. Proposed Questions 5.a. and 5.b. and the accompanying chart to Form CMA's Standard 3 section would reduce the burden on firms to provide FINRA with duplicate information already provided earlier on Form CMA or separately in a Uniform Registration Form. If the matter or event has already been described in Form CMA's Standard 1 section, the applicant would be able to cross-reference that description. If the matter or event was not already described in Form CMA's Standard 1 section but was already reported on a Uniform Registration Form, the applicant would only need to provide the subject party and that person's CRD number. If the matter or event has not been reported in Form CMA's Standard 1 section or on a Uniform Registration Form, the applicant would also be required to provide a description of the nature of the activity, any findings, any fine or other dispositions, to support compliance with Rule 1017(a)(7). Further, requiring firms to provide a CRD number would enable FINRA to facilitate FINRA's coordination of information entered on Form CMA with information that has been entered on a Uniform Registration Form or provided in a related materiality consultation, and therefore enable FINRA to more efficiently gather relevant information.
FINRA is also proposing several non-substantive, technical changes to Form CMA. First, FINRA is proposing to include in Form CMA's Standard 1 section and Standard 3 section a reminder to the applicant that, “[e]very Form U4 shall be kept current at all times by supplementary amendments to the original Form U4. See FINRA By-Laws, Art. V, Sec. 2(c).” Form U4 is one of the “Uniform Registration Forms,” as defined by amendments to the MAP rules.
Finally, FINRA is proposing to add within Form CMA's Standard 1 section new Questions 4.a., 4.b. and 4.c that would efficiently collect the information needed to monitor for compliance with Rule 1017(a)(6). Proposed Questions 4.a. and 4.b. would ask the applicant to indicate whether the CMA is required under Rule 1017(a)(6)(A) or Rule 1017(a)(6)(B), respectively.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, so FINRA can implement the proposed rule change on September 1, 2021, to coincide with the effective date of the amendments to the MAP rules as announced in
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The proposed changes to Form CMA will conform the form to the amendments to Rule 1017(a)(7), as described in the SEC Order. The proposed changes to Form CMA will also help ensure that applicants for continuing membership provide the information and documentation to produce a complete application package for FINRA's review.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA's recent amendments to the MAP rules, which specify additional events that require a CMA for FINRA's approval, necessitate conforming changes to the sections of Form CMA pertaining to the type of CMA, Standard 1 and Standard 3. The proposed conforming changes—
Written comments were neither solicited nor received.
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b-4(f)(6)(iii),
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-FINRA-2021-020 and should be submitted on or before August 23, 2021.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 1, 2021, MIAX PEARL, LLC (“MIAX Pearl” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”),
The Exchange proposes to amend its Fee Schedule to: (1) Delete the definition of and remove the credits applicable to the Monthly Volume Credit for Members; (2) and; (3) amend Section (3)(b) of the Fee Schedule to increase the amount of monthly Trading Permit Fees.
The Exchange proposes to amend the Definitions section of its Fee Schedule to delete the definition of “Monthly Volume Credit” and remove the credits applicable to the Monthly Volume Credit for Members.
The Exchange also proposes to amend Section (3)(b) of the Fee Schedule to remove a Trading Permit fee credit of $100 that is provided to Members who connect via both the MEO and FIX Interfaces and is a monthly credit towards the Trading Permit fees applicable to the MEO Interface use.
The Exchange also proposes to amend Section (3)(b) of the Fee Schedule to increase the amount of the monthly Trading Permit fees that are charged to Exchange Members that are Electronic Exchange Members or Market Makers.
The Exchange proposes to increase fees for Trading Permits as follows:
For Members that connect via the FIX Interface, if the Member's relevant monthly volume falls within the parameters of:
• Tier 1 (up to 0.30% TCV): The monthly fee would increase from $250 to $500;
• Tier 2 (above 0.30%, up to 0.60% TCV): The monthly fee would increase from $350 to $1,000; and
• Tier 3 (above 0.60% TCV): The monthly fee would increase from $450 to $1,500.
For Members that connect via the MEO interface, if the Member's relevant monthly volume falls within the parameters of:
• Tier 1 (up to 0.30% TCV): The monthly fee would increase from $300 to $2,500;
• Tier 2 (above 0.30%, up to 0.60% TCV): The monthly fee would increase from $400 to $4,000; and
• Tier 3 (above 0.60% TCV): The monthly fee would increase from $500 to $6,000.
Pursuant to Section 19(b)(3)(C) of the Act,
In support of the proposed fee changes, the Exchange principally argues that these fees are constrained by competitive forces, and that this is supported by their revenue and cost analysis. In particular, the Exchange states that it operates in a “highly competitive market” in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive.
The Exchange also states that these fees are designed to recover a portion of the costs associated with directly accessing the Exchange. The Exchange believes that Trading Permits are a means to directly access the Exchange and thus offers meaningful value (and without a Trading Permit a Member cannot directly trade on the Exchange). The Exchange provides an analysis of its revenues, costs, and profitability associated with these fees, which it references as “Proposed Access Fees.”
The Exchange states that for 2021, the total annual expense for providing the access services associated with the Proposed Access Fees for the Exchange is projected to be approximately $844,741.
The Exchange states that the total third-party expense, relating to fees paid by the Exchange to third-parties for certain products and services for the Exchange to be able to provide the access services associated with the Proposed Access Fees is projected to be $188,815 for 2021.
In addition, the Exchange states that the total internal expense, relating to the internal costs of the Exchange to provide the access services associated with the Proposed Access Fees, is projected to be $655,925 for 2021.
The Exchange states that this cost and revenue analysis shows that the proposed rule change will not result in excessive pricing or supra-competitive profit.
The Exchange further states that its proposed fees are reasonable, equitably allocated and not unfairly discriminatory because the Exchange, and its affiliates, Miami International Securities Exchange, LLC and MIAX Emerald, LLC, are still recouping the initial expenditures from building out their systems while the “legacy” exchanges have already paid for and built their systems.
The Exchange states that the proposed fees are equitably allocated, not unfairly discriminatory, and do not impose an unnecessary or inappropriate burden on competition because the Proposed Access Fees do not favor certain categories of market participants,
When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchange's present proposal, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder applicable to the exchange.
Section 6 of the Act, including Sections 6(b)(4), (5), and (8), require the rules of an exchange to (1) provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities;
In temporarily suspending the Exchange's fee change, the Commission intends to further consider whether the proposed rule change is consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule change.
In addition to temporarily suspending the proposal, the Commission also hereby institutes proceedings pursuant to Sections 19(b)(3)(C)
Pursuant to Section 19(b)(2)(B) of the Act,
• Whether the Exchange has demonstrated how the proposal is consistent with Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange “provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities;”
• Whether the Exchange has demonstrated how the proposal is consistent with Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be “designed to perfect the operation of a free and open market and a national market system” and “protect investors and the public interest,” and not be “designed to permit unfair discrimination between customers, issuers, brokers, or dealers;”
• Whether the Exchange has demonstrated how the proposal is consistent with Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].”
As discussed in Section III above, the Exchange makes various arguments in support of the proposal. The Commission believes that there are questions as to whether the Exchange has provided sufficient information to demonstrate that the proposal to remove certain credits and increase monthly Trading Permit fees is consistent with the Act and the rules thereunder.
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposal is consistent with the Act, specifically, with its requirements that the rules of a national securities exchange provide for the equitable allocation of reasonable dues, fees, and other charges among its members, issuers, and other persons using its facilities; are designed to perfect the operation of a free and open market and a national market system, and to protect investors and the public interest; are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers; and do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act;
The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by September 23, 2021. Rebuttal comments should be submitted by October 7, 2021. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes an extension and revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than November 1, 2021. Individuals can obtain copies of the collection instrument by writing to the above email address.
• Want to register for direct payment of fees;
• Registered for direct payment of fees prior to 10/31/09, but need to update their information;
• Registered as appointed representatives on or after 10/31/09, but need to update their information; or
• Received a notice from SSA instructing them to complete this form.
By registering these individuals, SSA: (1) Authenticates and authorizes them to do business with us; (2) allows them to access our records for the claimants they represent; (3) facilitates direct payment of authorized fees to appointed representatives; and, (4) collects the information we need to meet Internal Revenue Service (IRS) requirements to issue specific IRS forms if we pay an appointed representative in excess of a specific amount ($600). The respondents are appointed representatives who want to use Form SSA-1699 for any of the purposes cited in this Notice.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding these information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than October 4, 2021. Individuals can obtain copies of these OMB clearance packages by writing to
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Under these agreements, SSA obtains third party liability information using Form SSA-8019-U2, Third Party Liability Information Statement, and provides that information to the Medicaid state agencies. The Medicaid state agencies use the information to bill third parties liable for medical care, support, or services for a beneficiary to guarantee that Medicaid remains the payer of last resort. The respondents are SSI claimants and recipients.
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Department of State.
Notice of extension of passport travel restriction.
On September 1, 2017, all U.S. passports were declared invalid for travel to, in, or through the Democratic People's Republic of Korea (DPRK), unless specially validated for such travel. The restriction was extended for one year in 2018, 2019, and 2020. This notice extends the restriction until August 31, 2022, unless extended or revoked by the Secretary of State.
The extension of the travel restriction is in effect on September 2, 2021.
Lawrence Kovaciny, Bureau of Consular Affairs, Passport Services, Office of Adjudication, 202-485-8800.
On September 1, 2017, pursuant to the authority of 22 U.S.C. 211a and Executive Order 11295 (31 FR 10603), and in accordance with 22 CFR 51.63(a)(3), all U.S. passports were declared invalid for travel to, in, or through the DPRK unless specially validated for such travel. The restriction was renewed on September 1, 2018, September 1, 2019, and again for another year effective September 1, 2020.
The Department of State has determined there continues to be serious risk to U.S. citizens and nationals of arrest and long-term detention constituting imminent danger to their physical safety, as defined in 22 CFR 51.63(a)(3). Accordingly, all U.S. passports shall remain invalid for travel to, in, or through the DPRK unless specially validated for such travel under the authority of the Secretary of State. This extension to the restriction of travel to the DPRK shall be effective upon publication of this notice in the
Tulsa Base Railroad, L.L.C. (TBR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire by lease and to operate 745 feet of track that extends south of the point-of-switch with BNSF Railway Company
TBR states that the Line is owned by BNSF, which operated it as spur track. According to TBR, BNSF leases the premises that include the Line to Base, Inc. (Base), the sole equity member of TBR, which in turn has subleased the Line to TBR for an initial term of seven years.
TBR certifies that its anticipated annual revenue will not exceed that of a Class III rail carrier and will not exceed $5 million.
The transaction may be consummated on or after September 16, 2021, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than September 9, 2021 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36536, should be filed with the Surface Transportation Board via e-filing on the Board's website. In addition, a copy of each pleading must be served on TBR's representative, Bradon J. Smith, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606.
According to TBR, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Kiski Junction Railroad, Inc. (KJRR), has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
KJRR has certified that: (1) No local traffic has moved over the Line for at least two years; (2) there is no overhead traffic on the Line that would need to be rerouted; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(b) and 1105.8(c) (notice of environmental and historic reports), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received,
All pleadings, referring to Docket No. AB 1317X, should be filed with the Surface Transportation Board via e-filing on the Board's website. In addition, a copy of each pleading must be served on KJRR's representative, Justin J. Marks, Clark Hill PLC, 1001 Pennsylvania Avenue NW, Suite 1300 South, Washington, DC 20004.
If the verified notice contains false or misleading information, the exemption is void ab initio.
KJRR has filed a combined environmental and historic report that addresses the potential effects, if any, of the abandonment on the environment and historic resources. OEA will issue a Draft Environmental Assessment (Draft EA) by September 7, 2021. The Draft EA will be available to interested persons on the Board's website, by writing to OEA, or by calling OEA at (202) 245-0294. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the Draft EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), KJRR shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by KJRR's filing of a notice of consummation by September 2, 2022, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of Safety Advisory.
FRA is issuing Safety Advisory 2021-01 to make the rail industry, including railroads and railroad employees, aware of a recently identified interface design issue relating to how positive train control (PTC) systems in use throughout the United States interface with locomotive and cab car braking systems. This recently identified interface design issue allows a train crewmember to circumvent a PTC enforcement by manually cutting out the pilot valve/brake stand, commonly known as the cut-out valve, prior to the PTC system initiating the brakes. This interface design issue poses a significant safety risk by allowing a PTC system to be disabled and unable to initiate the brakes to prevent a train-to-train collision, over-speed derailment, incursion into an established work zones, or the movement of a train through a switch left in the wrong position. This Safety Advisory recommends that all railroads operating with PTC systems immediately remind crewmembers that circumventing a PTC enforcement is subject to civil penalty or disqualification for the locomotive engineer or conductor responsible; audit the designs of PTC systems as implemented on all types of locomotives and cab cars; assess the extent to which the design of the system could allow a locomotive or cab car's PTC system to be circumvented by a crewmember; develop and implement a plan to mitigate and/or correct this design issue; and provide FRA with a schedule for completion of the identified actions.
Gabe Neal, Staff Director, Signal, Train Control and Crossings Division, Office of Railroad Systems and Technology, at telephone: (816) 516-7168 or email:
Positive train control (PTC) systems must be designed to prevent train-to-train collisions, over-speed derailments, incursions into established work zones, and the movement of a train through a switch left in the wrong position.
FRA is aware of a recently identified design issue relating to how PTC systems in use throughout the United States interface with locomotive and cab car braking systems. This interface design issue allows a crewmember to circumvent a PTC enforcement by manually cutting out the pilot valve/brake stand, commonly known as the cut-out valve, prior to the PTC system initiating the brakes. If a PTC system is allowed to be disabled by the actions of a crewmember, the PTC system can no longer prevent a train-to-train collision, over-speed derailment, incursion into an established work zone, or the movement of a train through a switch left in the wrong position.
Although FRA has found that all PTC systems are potentially impacted by this interface design issue, FRA notes that only some interface designs between the PTC system and the locomotive or cab car braking system allow a PTC enforcement to be disabled. FRA believes that the interface designs of most concern are limited to a number of older locomotives equipped with mechanical braking systems, and the interface design is likely not an issue on most newer locomotives equipped with electronic braking systems. On PTC-equipped locomotives and cab cars with interface designs with this issue, manually cutting out the pilot valve/brake stand disables the PTC system enforcement capability. FRA recognizes that a locomotive or cab car PTC system is considered a “safety device” under FRA's regulations
FRA became aware of this issue through three recent events:
• On May 27, 2021, during testing of the Advanced Civil Speed Enforcement System II (ACSES II) PTC system aboard a freight train, an FRA PTC Specialist witnessed an engineer circumvent a penalty brake application while operating in an overspeed condition. The engineer placed the pilot valve/brake stand in the cut-out position prior to PTC system enforcement of the overspeed condition. When the overspeed condition no longer existed, the pilot valve/brake stand was returned to the cut-in position, and the train continued without a PTC system penalty.
• On July 13, 2021, during testing of the Interoperable Electronic Train Management System (I-ETMS) PTC system on a freight locomotive, FRA conducted a test in which a zero speed temporary speed restriction (TSR) was issued to the train and the pilot valve/brake stand was placed into the cut-out position prior to PTC system enforcement of the TSR. This action allowed the train to circumvent PTC system enforcement.
• On July 21, 2021, during testing of the ACSES II PTC system on a passenger train, FRA conducted a similar test in which a zero speed temporary speed restriction (TSR) was issued to the train and the pilot valve/brake stand was placed into the cut-out position prior to PTC system enforcement of the TSR. This action achieved similar results, allowing the train to circumvent the PTC system enforcement with one exception; after placing the pilot valve/brake stand back into the cut-in position, the train encountered a PTC penalty brake application.
As shown by the incidents described above, rail operations face a safety risk due to the interface design issue that allows PTC enforcement to be circumvented by cutting out the pilot valve/brake stand. Such risks must be addressed to provide for the safety of train operations, and thus FRA recommends that railroads do the following:
(1) Immediately remind railroad crewmembers that, along with the unauthorized disabling of a PTC system, circumventing PTC enforcement by manually cutting out the pilot valve/brake stand when not authorized is a revocable event for the locomotive engineer or conductor responsible, and
(2) Immediately conduct a complete audit of the PTC onboard design of all locomotives and cab cars equipped with PTC to determine how the onboard PTC equipment is integrated into each railroad's locomotive and cab car's braking system, to ascertain what percentage of the locomotive and cab car fleet is subject to the interface design issue described above;
(3) Within ten (10) days of the publication of this Safety Advisory, provide FRA, via the SIR site, with a report of the number and type of locomotives and cab cars that have this interface design issue;
(4) Upon completion of item (2) above, determine the mitigating measures and/or corrective actions necessary to address the safety risk presented by the design issue, and provide FRA, via the SIR site, with a report documenting the planned measures and/or actions, including a schedule for completion; and
(5) Immediately commence implementation of the planned measures and/or actions to address the safety risk presented by the design issue per the documented schedule, and provide FRA, via the SIR site, confirmation of completion.
Issued in Washington, DC.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Hankook Tire America Corporation (Hankook) has determined that certain Hankook Ventus V2 Concept 2 tires manufactured by Hankook's indirect subsidiary, Hankook Tire Manufacturing Tennessee, LP, do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
Abraham Diaz, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5310, facsimile (202) 366-3081.
Hankook filed a noncompliance report dated November 19, 2019, pursuant to 49 CFR part 573,
Notice of receipt of Hankook's petition was published with a 30-day public comment period, on April 17, 2020, in the
1. The purpose of the labeling requirements in Part 574 is to “facilitate notification to purchasers of defective or nonconforming tires.”
2. The date-code characters reflect the correct week and year of the tires' manufacture, but the date code is technically out of compliance because the characters are inverted. Despite the inversion, the date code meets the character height requirements of Part 574 and is readily identifiable, permitting tire owners to easily determine the week and year of manufacture.
3. NHTSA has previously granted a petition for inconsequential noncompliance for a similar issue. In granting a petition from Cooper Tire & Rubber Company, 81 FR 43708 (July 5, 2016), the Agency explained:
The Agency believes that in the case of a tire labeling noncompliance, one measure of its inconsequentiality to motor vehicle safety is whether the mislabeling would affect the manufacturer's or consumer's ability to identify the mislabeled tires properly, should the tires be recalled for performance-related noncompliance. In this case, the nature of the labeling error does not prevent the correct identification of the affected tires. 49 CFR 574.5 requires the date code portion of the tire identification number to be placed in the last or correct position. In Cooper's case, it is in the right-most position, however, the manufacture date code is upside down.
The petitioner argues that, as with the Cooper tires, the date code on the subject tires is located on the sidewall, is not likely to be misidentified, and a reader will be able to read and understand the date code. Hankook communicated in an email to the agency on November 19, 2020, that a partial TIN is labeled on at least one sidewall of the tire. The subject tires otherwise meet the marking and performance requirements of FMVSS No. 139.
4. Hankook is not aware of any complaints, claims, or incidents related to the subject noncompliance.
Hankook concludes that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
An important issue to consider in determining inconsequentiality is the safety risk to individuals who experience the type of event against which the recall would otherwise protect.
Arguments that only a small number of vehicles or items of motor vehicle equipment are affected have also not justified granting an inconsequentiality petition.
In the instant case, the date code required by FMVSS No. 139 is properly located in the right-most position and shows the correct week and year of manufacture but has been imprinted upside-down, and the upside-down font cannot be confused with right-side up font. If a consumer reads the label as it is, the fact that the date code is inverted would become self-evident. In such a case, it would not be difficult to rotate the tire to a position where the code could be read and deciphered. The tire's age would then be available as needed and the tire could also be identified if recalled.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject tires that Hankook no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve tire distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after Hankook notified them that the subject noncompliance existed.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Health Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
a. VA Form 10-10d, Application for CHAMPVA Benefits, is used to determine eligibility of persons applying for healthcare benefits under the CHAMPVA program in accordance with 38 U.S.C. 501 and 1781.
b. VA Form 10-7959a, CHAMPVA Claim Form, is used to adjudicate claims for CHAMPVA benefits in accordance with 38 U.S.C. Sections 501 and 1781, and 10 U.S.C. Sections 1079 and 1086. This information is required for accurate adjudication and processing of beneficiary submitted claims. The claim form is also instrumental in the detection and prosecution of fraud. In addition, the claim form is the only mechanism to obtain, on an interim basis, other health insurance (OHI) information.
c. VA Form 10-7959c, CHAMPVA Other Health Insurance (OHI) Certification, is used to systematically obtain OHI information and to correctly coordinate benefits among all liable parties. Except for Medicaid and health insurance policies that are purchased exclusively for the purpose of supplementing CHAMPVA benefits, CHAMPVA is always the secondary payer of healthcare benefits (38 U.S.C. 501 and 1781, and 10 U.S.C. 1086).
d. VA Form 10-7959d, CHAMPVA Potential Liability Claim, provides basic information from which potential third party liability can be assessed. The Federal Medical Care Recovery Act (42 U.S.C. 2651-2653) mandates recovery of costs associated with healthcare services related to an injury/illness caused by a third party. Additional authority includes 38 U.S.C. 501; 38 CFR 1.900
e. VA Form 10-7959e, VA Claim for Miscellaneous Expenses, is used to adjudicate claims for certain children of Korea and/or Vietnam veterans authorized under 38 U.S.C., chapter 18, as amended by section 401, Public Law 106-419 and section 102, Public Law 108-183. VA's medical regulations 38 CFR part 17 (17.900 through 17.905) establish regulations regarding provision of health care for certain children of Korea and Vietnam veterans and women Vietnam veterans' children born with spina bifida and certain other covered birth defects. These regulations also specify the information to be included in requests for preauthorization and claims from approved health care providers.
f. Review and Appeal Process pertains to the approval of health care, or approval for payment relating to the provision of health care, under the Veteran Family Member Programs. The provisions of chapter 51 of 38 U.S.C. or 38 CFR 17.276 and 38 CFR 17.904 establish a review process regarding disagreements by an eligible beneficiary of a Veteran Family Member Program, provider, Veteran, or other representative of the Veteran or beneficiary with a determination concerning provision of health care or a health care provider's disagreement with a determination regarding payment. The person or entity requesting reconsideration of such determination is required to submit such a request in writing. If such person or entity remains dissatisfied with the reconsideration determination, the person or entity is permitted to submit a written request for additional review.
g. Clinical Review pertains to the requirement of VHA to preauthorize certain medical services under 38 CFR 17.273 and 38 CFR 17.902. Clinical review determines if services are medically necessary and appropriate to allow under the Veteran Family Member Programs. The person requesting the services must submit medical documentation or applicable supporting material for review.
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
VA Form 10-10d—8,963 hours.
VA Form 10-7959a—9,167 hours.
VA Form 10-7959c—8,947 hours.
VA Form 10-7959d—239 hours.
VA Form 10-7959e—200 hours.
Review and Appeal Process—6,255 hours.
Clinical Review—777 hours.
VA Form 10-10d—10 minutes.
VA Form 10-7959a—10 minutes.
VA Form 10-7959c—10 minutes.
VA Form 10-7959d—7 minutes.
VA Form 10-7959e—15 minutes.
Review and Appeal Process—30 minutes.
Clinical Review—20 minutes.
VA Form 10-10d—53,775.
VA Form 10-7959a—55,000.
VA Form 10-7959c—53,680.
VA Form 10-7959d—2,045.
VA Form 10-7959e—800.
Review and Appeal Process—12,510.
Clinical Review—2,332.
By direction of the Secretary.
On May 12, 2021, BOX Exchange LLC (“Exchange” or “BOX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 as amended (“Exchange Act”),
In addition, the Exchange proposes to make certain amendments to several existing BOX Rules to facilitate trading on BSTX. The proposed changes to the existing BOX Rules would not change the core purpose of the subject Rules or the functionality of other BOX trading systems and facilities. Specifically, the Exchange is seeking to amend BOX Rules 100, 2020, 2060, 3180, 7130, 7150, 7230, 7245, IM-8050-3, 11010, 11030 and 12140. These proposed changes are set forth in Exhibit 5B. Material proposed to be added to the Rule as currently in effect is underlined and material proposed to be deleted is bracketed.
All capitalized terms not defined herein have the same meaning as set forth in the Exchange's Rules.
The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to adopt a series of rules to govern the trading of certain equity securities through a facility of the Exchange known as BSTX and make certain amendments to the existing BOX rules to facilitate trading on BSTX. As described more fully below, BSTX would operate a fully automated, price/time priority execution system (“BSTX System”) for the trading of certain equity securities that would be considered “Securities” under the proposed rules. The
The proposal for trading of Securities through BSTX generally involves changes to existing BOX Rules and new BOX Rules pertaining specifically to BSTX (“BSTX Rules”). In addition, the Exchange plans to submit a separate proposed rule change pertaining to BSTX's corporate governance documents. To support the trading of Securities through BSTX, certain conforming changes are proposed to existing BOX Rules and entirely new BSTX Rules are also proposed as Rule Series 17000 through 29000.
• Section 17000—General Provisions of BSTX;
• Section 18000—Participation on BSTX;
• Section 19000—Business Conduct for BSTX Participants;
• Section 20000—Financial and Operational Rules for BSTX Participants;
• Section 21000—Supervision;
• Section 22000—Miscellaneous Provisions;
• Section 23000—Trading Practice Rules;
• Section 24000—Discipline and Summary Suspension;
• Section 25000—Trading Rules;
• Section 25200—Market Making on BSTX;
• Section 26000—BSTX Listing Rules Other Than for Exchange Traded Products;
• Section 27000—Suspension and Delisting;
• Section 27100—Guide to Filing Requirements;
• Section 27200—Procedures for Review of Exchange Listing Determinations; and
• Section 28000—Trading and Listing of Exchange Traded Products;
• Section 29000—Dues, Fees, Assessments and Other Charges.
On June 19, 2018, t0.com Inc. (“tZERO”) and BOX Digital Markets LLC (“BOX Digital”) announced a joint venture to facilitate the trading of Securities on the Exchange.
BSTX would operate as a facility
The Exchange proposes to use the term “Security”
The Securities would qualify as NMS stocks pursuant to Regulation NMS,
Securities would meet the definition of NMS stock and would trade, clear, and settle in the same manner as all other NMS stocks traded today. As described in further detail below, the operation of the BSTX Market Data Blockchain would in no way modify or alter market participants' obligations under Regulation NMS.
All Securities traded on BSTX would generally be required to be registered with the Commission under both Section 12 of the Exchange Act
BSTX would maintain certain rules, as described below, to address custody, clearance and settlement in connection with Securities. All transactions in Securities would clear and settle in accordance with the rules, policies and procedures of registered clearing agencies. Specifically, BSTX anticipates that at the time it commences operations, Securities that are listed and traded on BSTX would be securities that have been made eligible for services by The Depository Trust Company (“DTC”) and that DTC would serve as the securities depository
The operation of the BSTX Market Data Blockchain will have no impact or effect on the manner in which a Security clears and settles. The BSTX Market Data Blockchain would be implemented through the operation of the proposed BSTX Rules and would occur separate and apart from the clearance and settlement process. The Security would be an ordinary equity security for NSCC's and DTC's purposes. The BSTX Market Data Blockchain would be a separate set of market data that uses distributed ledger technology to record certain order and transaction information regarding orders and transactions in Securities on BSTX.
With the exception of certain offerings under Regulation A that meet the proposed BSTX listing standards, all Securities traded on BSTX will have been offered and sold in registered offerings under the Securities Act, which means that purchasers of the Securities will benefit from all of the protections of registration. The Division of Corporation Finance will need to make a public interest finding in order to accelerate the effectiveness of the registration statements for these offerings. Because BSTX would be a facility of a national securities exchange, all Securities would be registered under Section 12(b) of the Exchange Act, thereby subjecting all of these issuers to the reporting regime in Section 13(a) of the Exchange Act.
All offerings of securities that are intended to be listed as Securities on BSTX would be conducted in the same general manner in which offerings of exchange-listed equity securities are conducted today under the federal securities laws. An issuer will enter into a firm commitment or best efforts underwriting agreement with a sole underwriter or underwriting syndicate; the underwriter(s) will market the securities and distribute them to purchasers; and secondary trading in the securities (that are intended to trade on BSTX as Securities) will thereafter commence on BSTX.
Issuers on BSTX could include both (1) new issuers who do not currently have any class of securities registered on a national securities exchange, and (2) issuers who currently have securities registered on a national securities exchange and who are seeking registration of a separate class of equity securities for listing on BSTX as Securities.
BSTX does not intend for Securities listed, or intended to be listed, on BSTX to be fungible with any other class of securities from the same issuer.
BSTX would maintain rules that would promote a structure in which Securities would be held in “street name” with DTC.
BSTX would also maintain Proposed BSTX Rule 26135 regarding uniform book-entry settlement. The rule would require each BSTX Participant to use the facilities of a securities depository for the book-entry settlement of all transactions in depository eligible securities with another BSTX Participant or a member of a national securities exchange that is not BSTX or a member of a national securities association.
Under proposed BSTX Rule 25140, each BSTX Participant would be required to either (i) be a member of a registered clearing agency that uses a continuous net settlement (“CNS”) system, or (ii) clear transactions executed on BSTX through a member of such a registered clearing agency. The Exchange believes that today NSCC is the only registered clearing agency that uses a CNS system to clear equity securities, and proposed BSTX Rule 25140 further specifies that BSTX will maintain connectivity and access to the Universal Trade Capture system of NSCC to transmit confirmed trade details to NSCC regarding trades executed on BSTX. The proposed rule would also address the following: (i) A requirement that each Security transaction executed through BSTX must be executed on a locked-in basis for automatic clearance and settlement processing; (ii) the circumstances under which the identity of contra parties to a Security transaction that is executed through BSTX would be required to remain anonymous or may be revealed; and (iii) certain circumstances under which a Security transaction may be cleared through arrangements with a member of a foreign clearing agency. Proposed BSTX Rule 25140 is based on a substantially identical rule of the Investor's Exchange, LLC (“IEX”), which, in turn, is consistent with the rules of other equities exchanges.
BSTX believes that the operation of its depository eligibility rule and its book-entry services rule would promote a framework in which Securities that would be eligible to be listed and traded on BSTX would be equity securities that have been made eligible for services by a registered clearing agency that operates as a securities depository and that are settled through the facilities of the securities depository by book-entry. The Exchange believes that because DTC currently is the only clearing agency registered with the SEC that provides securities depository services, at the commencement of BSTX's operations, Securities would be securities that have been made eligible for services by DTC, including book-entry settlement services.
Proposed BSTX Rule 25100(d) would address settlement cycle considerations regarding trades in Securities. Security trades that result from orders matched against the electronic order book of BSTX would be required to clear and settle pursuant to the rules, policies and procedures of a registered clearing agency. As noted above in connection with the description of proposed BSTX Rule 25140, the Exchange expects that at the commencement of operations by BSTX it would transmit confirmed trade details to NSCC regarding Security trades that occur on BSTX and that NSCC would be the registered clearing agency that clears Security trades for settlement at DTC.
As described in greater detail below in Part II.H, the Exchange is also proposing that BSTX Participants would be able to include parameters in orders submitted to BSTX to indicate a preference to use faster settlement cycles that are currently available through NSCC and DTC under certain circumstances. BSTX believes that allowing BSTX Participants to use these faster settlement cycles where consistent with the rules, policies and procedures of a registered clearing agency would mitigate settlement risk for transactions in such Securities due to faster settlement. BSTX believes that NSCC already has authority under its rules, policies and procedures to clear certain trades on a T+1 or T+0 basis, which are shorter settlement cycles than the longest settlement cycle of T+2 that is generally permitted under SEC Rule 15c6-1 for a security trade that involves a broker-dealer.
BSTX will make available to BSTX Participants certain market data related to trading activity occurring on BSTX through the use of a private, permissioned blockchain maintained by the Exchange. As described further below, a BSTX Participant would have the ability to see through an online portal provided by the Exchange the market data information on the private blockchain consisting of detailed information about its trading activity on BSTX and anonymized information with respect to the trading activity of other BSTX Participants.
In general, a blockchain is essentially a ledger that can maintain digital records of assets, transactions, or other information. A blockchain's central function is to encode transitions or changes to the ledger. Whenever one change to the blockchain ledger occurs to record a state transition, the entire blockchain is immutably changed to reflect the state transition.
There are broadly two types of blockchains: (i) Public blockchains that are decentralized, open to anyone running the same protocol;
The BSTX Market Data Blockchain would operate as a private, permission-based blockchain that would be accessible through an application program interface (“API”) available through the internet. The Exchange would control all aspects of the BSTX Market Data Blockchain and the associated API. Pursuant to proposed Rule 17020(b), each BSTX Participant would be assigned a BSTX Market Data Blockchain address that corresponds to the BSTX Participant's trading activity on BSTX. The Exchange will also issue login credentials to each BSTX Participant through which the BSTX Participant may access the BSTX Market Data Blockchain through the API to see its order and transaction information on BSTX as well as certain anonymized market data from other BSTX Participants, as discussed further below. Similarly, the Exchange has the ability to issue login credentials to any non-BSTX Participant to allow access to the BSTX Market Data Blockchain through the API, but a non-BSTX Participant accessing the Market Data Blockchain would be limited to viewing only anonymized market data, as also explained below. BSTX Participants (and any non-BSTX Participants to which the Market Data Blockchain is made available by the Exchange) would only be able to access the information contained on the BSTX Market Data Blockchain through the API, and only the Exchange would have direct access to the underlying data on the private blockchain.
The BSTX Market Data Blockchain would generally operate by collecting information from two sources, which the Exchange would then translate into information capable of being recorded to the BSTX Market Data Blockchain. Specifically, the data inputs for the BSTX Market Data Blockchain would come from (i) the BSTX System
The BSTX Market Data Blockchain does not require any affirmative action on the part of a BSTX Participant in order for its information to be recorded to the BSTX Market Data Blockchain. Rather, the BSTX Market Data Blockchain captures trading activity that occurs on BSTX in the normal course and is made available to BSTX Participants as an additional resource that they may choose to use in their discretion in the same general manner that a market participant might use TAQ data.
As set forth in proposed Rule 17020(c), there are two types of information that would be available on the BSTX Market Data Blockchain: (i) A BSTX Participant's own order and transaction information related to its trading activity on BSTX (“Participant Proprietary Data”); and (ii) anonymized, general market data available to all BSTX Participants and non-BSTX Participants permissioned by the Exchange (“General Market Data”).
(1) Symbol, side (buy/sell), limit price, quantity, time-in-force
(2) Order type (
(3) Order capacity (principal/agent)
(4) Short/long sale order marking
(5) Message type (
Participant Proprietary Data would effectively contain a record of all of a
General Market Data is the second type of information that would be available on the BSTX Market Data Blockchain, which would consist of:
(1) All displayed orders,
(2) Administrative data and other information from the Exchange (
General Market Data would allow viewers to be able to observe the historical orders, executions, and other events (
General Market Data would be anonymized, meaning that a BSTX Participant would not be able to determine the identity of another BSTX Participant's orders, quotes, cancellations, or other messages. For the avoidance of doubt, the alphanumeric address assigned to each BSTX Participant to facilitate the BSTX Market Data Blockchain would not be visible as part of General Market Data.
The Exchange proposes to append timestamps to the information made available. Timestamps related to all information on the BSTX Market Data Blockchain would indicate the time to the microsecond at which an order posted to the BSTX Book or that the BSTX System took other action with respect to an order (
Finally, in order to promote clarity with respect to how a BSTX Participant may use the BSTX Market Data Blockchain, the Exchange proposes to provide in Rule 17020(c)(3) that the information available on the BSTX Market Data Blockchain does not act as a substitute for any recordkeeping obligations of a BSTX Participant. The Exchange notes that broker-dealers recordkeeping obligations generally require a much broader set of records covering the entirety of a broker-dealers trading activity across all trading centers.
With respect to information security considerations, the Exchange notes that as a system of the Exchange, the BSTX Market Data Blockchain will be subject to the requirements of the Exchange Act, including Regulation Systems Compliance and Integrity (“Reg. SCI”)
To help ensure the proper functioning of the BSTX Market Data Blockchain and accuracy of information thereon, the Exchange proposes in Rule 17020(c)(3) to periodically audit the BSTX Market Data Blockchain. Specifically, the Exchange proposes to perform the audit at least bi-annually to ensure that that the BSTX Market Data Blockchain accurately captures order and transaction data on BSTX. The Exchange expects that it will initially audit the BSTX Market Data Blockchain more frequently (
The Exchange believes that there are two primary benefits related to the BSTX Market Data Blockchain. First, the Exchange believes that a BSTX Participant may find the information useful to them for a variety of purposes such as to review the BSTX Participant's trading activity on BSTX, determine what the market was at a particular point in time on BSTX for a given Security, evaluate execution quality on BSTX, help confirm the accuracy of their internal trading data,
Second, the Exchange believes that the BSTX Market Data Blockchain will help familiarize BSTX Participants with the use and capabilities of blockchain technology in a manner that does not impose any burden on them or other market participants. The Commission has stated that it is “mindful of the benefits of increasing use of new technologies for investors and the markets, and has encouraged experimentation and innovation . . .”
Currently, the Exchange believes that market participants, such as prospective BSTX Participants, are able to obtain and review their own order and trade information as well as historical market data on one or more exchanges through a combination of using their own books and records and through acquiring historical market data products (
Securities would be eligible for trading on other national securities exchanges that extend UTP to them. As described above in Part II.E, Securities would be held in “street name” at DTC, have a CUSIP number, and would clear and settle through the facilities of a clearing agency registered with the SEC (
As described above in Section II.E.5., and based on discussions with representatives from DTCC, BSTX believes that NSCC already has authority under its rules, policies and procedures to clear certain trades on a T+1 or T+0 basis, which are shorter settlement cycles than the longest settlement cycle of T+2 that is generally permitted under SEC Rule 15c6-1 for a security trade that involves a broker-dealer.
The Exchange proposes that BSTX Participants would be able to include in their orders in Securities that are submitted to BSTX certain parameters to indicate a preference for settlement on a same day (T+0) or next trading day (T+1) basis when certain conditions are met.
As proposed, an Order with a T+0 Preference will execute against any order against which it is marketable and BSTX will transmit the matched order information to a registered clearing agency for settlement on a standard settlement cycle (T+2) except where: (i) The Order with a T+0 Preference executes against another Order with a T+0 Preference, in which case BSTX will transmit the matched order information to a registered clearing agency for settlement on the trade date as may be permitted by the rules, policies and procedures of the registered clearing agency, or (ii) the Order with a T+0 Preference executes against an Order with a T+1 Preference, in which case BSTX will transmit the matched order information to a registered clearing agency for settlement on the next trading day after the trade date (
As a result of this structure, all orders in Securities would be eligible to match and execute against any order against which they are marketable with settlement to occur at the later settlement date of any two matching orders. Only where an Order with a T+1 Preference or an Order with a T+0 Preference match with another Order with a T+1 Preference or Order with a T+0 Preference will those orders (or matching portions thereof) be eligible to settle more quickly than the standard settlement cycle of T+2.
As previously noted in Part II.E above, the Exchange expects at the commencement of its operations that it would transmit confirmed trade details to NSCC regarding trades in Securities that occur on BSTX and that NSCC would be the registered clearing agency that clears trades in Securities and produces related settlement obligations for settlement at DTC. The Exchange believes that NSCC and DTC already have appropriate approvals from the SEC for authority in their rules, policies and procedures to be able to clear and settle settlement obligations using such shortened settlement times. Furthermore, the Exchange understands that NSCC and DTC in fact already are using this authority for shortened settlement times. For example, based on information provided by representatives of DTCC to outside counsel for BSTX, the Exchange understands that on average for each business day for the months of November and December 2019, NSCC cleared over 19,000 trades designated for T+1 settlement and over 2,000 trades designated for T+0 settlement.
The Exchange is also aware of the recent announcement by DTCC, the Securities Industry and Financial Markets Association (“SIFMA”) and the Investment Company Institute (“ICI”) that they plan to collaborate to help the industry reduce the standard settlement cycle from T+2 to T+1, identify a target timeframe for that transition (
The Exchange believes that facilitating shorter settlement cycles as permitted under the rules, policies, and procedures of a registered clearing agency is consistent with Section 6(b)(5) of the Exchange Act
The Exchange notes that the proposed potential for shortened settlement timing for an Order with a T+0 Preference or an Order with a T+1 Preference will in no way impact or prevent any market participant that desires to effect a trade in a Security on BSTX from doing so. This is because under proposed Rule 25060(h), any Order with a T+1 Preference or Order with a T+0 Preference will continue to interact with any other order in the Security against which it is marketable (including any order in the Security that does not include a parameter indicating a preference for settlement faster than T+2) and a resulting execution will always settle using the latest settlement timing associated with two matching orders. Accordingly, non-BSTX Participants seeing a quote in a Security on BSTX will remain able to execute against that quote posted on BSTX even if that quote includes a latent parameter for a preference for T+0 or T+1 settlement where consistent with the rules, policies and procedures of a registered clearing agency. In this way, the Exchange believes that the proposal is fully compatible with the current market structure and would help perfect the mechanism of a free and open market consistent with the requirement in Section 6(b)(5) of the Exchange Act
Finally, because all orders in Securities submitted to BSTX would at the time of the order entry be presumed to settle on a regular way T+2 basis and would interact with any other order against which the order is marketable, the Exchange believes that Orders with a T+0 Preference and Orders with a T+1 Preference would be considered “protected” within the meaning of Rule 611 of the Exchange Act.
In adopting amendments to SEC Rule 15c6-1 in 2017 to shorten the standard settlement cycle for most broker-dealer transactions in securities from T+3 to T+2, the Commission stated its belief that the shorter settlement cycle would have positive effects regarding the liquidity risks and costs faced by members in a clearing agency, like NSCC, that performs central counterparty
The discussion in this Part III addresses the proposed BSTX Rules that would be adopted as Rule Series 17000 through 29000.
The Exchange proposes to adopt as its Rule 17000 Series (General Provisions of BSTX) a set of general provisions relating to the trading of Securities and other rules governing participation on BSTX. Proposed Rule 17000 sets forth the defined terms used throughout the BSTX Rules. The majority of the proposed definitions are substantially similar to defined terms used in other equities exchange rulebooks, such as with respect to the term “customer.”
In addition to setting forth proposed definitions used throughout the proposed Rules, the Exchange proposes to specify in proposed Rule 17010 (Applicability) that the Rules set forth in the Rule 17000 Series to Rule 29000 Series apply to the trading, listing, and related matters pertaining to the trading of Securities. Proposed Rule 17010(b) provides that, unless specific Rules relating to Securities govern or unless the context otherwise requires, the provisions of any Exchange Rule (
The Exchange proposes to adopt as its Rule 18000 Series (Participation on BSTX), three rules setting forth certain requirements relating to participation on BSTX. Proposed Rule 18000 (BSTX Participation) establishes “BSTX Participants” as a new category of Exchange participation for effecting transactions on the BSTX System, provided they: (i) Complete the BSTX Participant Application, Participation Agreement, and User Agreement;
The Exchange believes that the proposed Rule 18000 Series (Participation on BSTX) is consistent
The Exchange proposes to adopt as its Rule 19000 Series (Business Conduct for BSTX Participants), twenty two rules relating to business conduct requirements for BSTX Participants that are substantially similar to business conduct rules of other exchanges.
The Exchange believes that the proposed Rule 19000 Series (Business Conduct) is consistent with Section 6(b)(5) of the Exchange Act
The Exchange proposes to adopt as its Rule 20000 Series (Financial and Operational Rules), ten rules relating to financial and operational requirements for BSTX Participants that are substantially similar to financial and operational rules of other exchanges.
The Exchange believes that the proposed Rule 20000 (Financial and Operational Rules) Series is consistent with Section 6(b)(5) of the Exchange Act
The Exchange proposes to adopt as its Rule 21000 Series (Supervision), six rules relating to certain supervisory requirements for BSTX Participants that are substantially similar to supervisory rules of other exchanges.
The Exchange believes that the proposed Rule 21000 (Supervision) Series is consistent with Section 6(b)(5) of the Exchange Act
The Exchange proposes to adopt as its Rule 22000 Series (Miscellaneous Provisions), six rules relating to a variety of miscellaneous requirements applicable to BSTX Participants that are substantially similar to rules of other exchanges.
In addition, the Exchange proposes to adopt Rule 22060 to provide a high-level description of the market data products that the Exchange will offer. Specifically, proposed Rule 22060 sets forth a brief description of: (i) BSTX Depth-of Book data,
The Exchange proposes to adopt as its Rule 23000 Series (Trading Practice Rules), 14 rules relating to trading practice requirements for BSTX Participants that are substantially similar to trading practice rules of other exchanges.
Proposed Rule 23050 (Prohibition against Trading Ahead of Customer Orders) is substantially similar to FINRA 5320 and rules adopted by other exchanges,
The Exchange proposes to adopt the order handling procedures requirement in proposed Rule 23050(i) consistent with the rules of other exchanges.
The Exchange proposes to adopt a modified version of the exception set forth in FINRA Rule 5320.06 relating to minimum price improvement standards as proposed in Rule 23050(h). Under proposed Rule 23050(h), BSTX Participants would be permitted to execute an order on a proprietary basis when holding an unexecuted limit order in that same security without being required to execute the held limit order provided that they give price improvement of $0.01 to the unexecuted held limit order. While FINRA Rule 5320.06 sets forth alternate, lower price improvement standards for securities priced below $1, the Exchange proposes to adopt a uniform price improvement requirement of $0.01 for Securities traded on the BSTX System consistent with the Exchange's proposed uniform minimum price variant of $0.01 set forth in proposed Rule 25030.
In addition, the Exchange proposes to adopt an exception for bona fide error transactions as proposed in Rule 25030(g) which would allow a BSTX Participant to trade ahead of a customer order if the trade is to correct a bona fide error, as defined in the rule. This proposed exception is nearly identical to similar exceptions of other exchanges
The Exchange believes that the proposed Rule 23000 Series relating to trading practice rules is consistent with Section 6(b)(5) of the Exchange Act
With respect to disciplinary matters, the Exchange proposes to adopt Rule
Proposed Rule 24000 incorporates by reference existing rules that have already been approved by the Commission.
The Exchange proposes to adopt Rule 25000 (Access to and Conduct on the BSTX Marketplace) to set forth rules relating to access to the BSTX System and certain conduct requirements applicable to BSTX Participants. Specifically, proposed Rule 25000 provides that only BSTX Participants, including their associated persons, that are approved for trading on the BSTX System shall effect any transaction on the BSTX System. Proposed Rule 25000(b) generally requires that a BSTX Participant maintain a list of authorized traders that may obtain access to the BSTX System on behalf of the BSTX Participant, have procedures in place reasonably designed to ensure that all authorized traders comply with Exchange Rules and to prevent unauthorized access to the BSTX System, and to provide the list of authorized traders to the Exchange upon request. Proposed Rule 25000(c) and (d) restate provisions that are already set forth in Exchange Rule 7000, generally providing that BSTX Participants shall not engage in conduct that is inconsistent with the maintenance of a fair and orderly market or the ordinary and efficient conduct of business, as well as conduct that is likely to impair public confidence in the operations of the Exchange. Examples of such prohibited conduct include failure to abide by a determination of the Exchange, refusal to provide information requested by the Exchange, and failure to adequately supervise employees. Proposed Rule 25000(f) provides the Exchange with authority to suspend or terminate access to the BSTX System under certain circumstances.
The Exchange believes that proposed Rule 25000 is consistent with Section 6(b)(5) of the Exchange Act
Proposed Rule 25010 sets forth the days and hours during which BSTX would be open for business and during which transactions may be effected on the BSTX System. Under the proposed rule, transactions may be executed on the BSTX System between 9:30 a.m. and 4:00 p.m. Eastern Time. The proposed rule also specifies certain holidays BSTX would be not be open (
The Exchange believes that proposed Rule 25010 is designed to protect investors and the public interest, consistent with Section 6(b)(5) of the Exchange Act,
Proposed Rule 25020 sets forth the minimum unit of trading on the BSTX System, which shall be one Security. The Exchange believes that proposed Rule 25020 is consistent with Section 6(b)(5) of the Exchange Act
Proposed Rule 25030 provides the minimum price variant for Securities shall be $0.01. The Exchange believes that proposed Rule 25030 is consistent with Section 6(b)(5) of the Exchange Act because it fosters cooperation and coordination of persons engaged in facilitating transactions in securities by specifying the minimum price variant for Securities and promotes compliance with Rule 612 of Regulation NMS.
Proposed Rule 25040 sets forth the opening process for the BSTX System for BSTX-listed Securities and non-BSTX-listed securities. For BSTX-listed Securities, the Exchange proposes to allow for order entry to commence at 8:30 a.m. ET during the Pre-Opening Phase. Proposed Rule 25040(a) provides that orders will not execute during the Pre-Opening Phase, which lasts until regular trading hours begin at 9:30 a.m. ET.
Consistent with the manner in which the Exchange opens options trading, the BSTX System would determine a single price at which a BSTX-listed Security would be opened by calculating the optimum number of Securities that could be matched at a price, taking into consideration all the orders on the BSTX Book.
For initial public offerings of Securities (“Initial Security Offerings”), the process would be generally the same as regular market openings. However, in advance of an Initial Security Offering auction (“Initial Security Offering Auction”), the Exchange shall announce a “Quote-Only Period” that shall be between fifteen (15) and thirty (30) minutes plus a short random period prior to the Initial Security Offering Auction.
The Exchange also proposes a process for reopening trading following a Limit Up-Limit Down Halt or trading pause (“Halt Auctions”). For Halt Auctions, the Exchange proposes that in advance of reopening, the Exchange shall announce a Quote-Only Period that shall be five (5) minutes prior to the Halt Auction.
The Exchange also proposes to adopt certain contingency procedures in proposed Rule 25040(d) that would provide that when a disruption occurs that prevents the execution of an Initial Security Offering Auction the Exchange will publicly announce the Quote-Only Period for the Initial Security Offering Auction, and the Exchange will then cancel all orders on the BSTX Book and
The opening process with respect to non-BSTX-listed securities is set forth in proposed Rule 25040(e). Pursuant to that Rule, BSTX Participants who wish to participate in the opening process may submit orders and quotes for inclusion in the BSTX Book, but such orders and quotes cannot execute until the termination of the Pre-Opening Phase (“Opening Process”). Orders that are canceled before the Opening Process will not participate in the Opening Process. The Exchange will attempt to perform the Opening Process and will match buy and sell orders that are executable at the midpoint of the NBBO.
Consistent with Section 6(b)(5) of the Exchange Act,
BSTX proposes to adopt rules relating to trading halts
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Pursuant to proposed Rule 25050(d), the Exchange would cancel all resting orders in a non-BSTX listed security subject to a trading halt, reject any incoming orders in that Security, and will only resume accepting orders following a broadcast message to BSTX Participants indicating a forthcoming re-opening of trading.
BSTX believes that it is in the public interest and furthers the protection of
The Exchange believes that canceling resting order interest during a trading halt and rejecting incoming orders received during the trading halt is consistent with Section 6(b)(5) of the Exchange Act
Proposed Rule 25060 sets forth the manner in which BSTX Participants may enter orders to the BSTX System. The BSTX System would initially only support limit orders.
Consistent with Section 6(b)(5) of the Exchange Act,
Proposed Rule 25070 (Audit Trail) is designed to ensure that BSTX Participants provide the Exchange with information to be able to identify the source of a particular order and other information necessary to carry out the Exchange's oversight functions. The proposed rule is substantially similar to existing BOX Rule 7120 but eliminates certain information unique to orders for options contracts (
The Exchange believes that proposed Rule 25070 is designed to protect investors and the public interest, consistent with Section 6(b)(5) of the Exchange Act,
Proposed Rule 25080 governs the execution of orders on the BSTX System, providing a price-time priority model. The proposed rule provides that orders of BSTX Participants shall be ranked and maintained in the BSTX Book according to price-time priority, such that within each price level, all orders shall be organized by the time of entry. The proposed rule further provides that sell orders may not execute a price below the best bid in the marketplace and buy orders cannot execute at a price above the best offer in the marketplace. Further, the proposed rule ensures compliance with Regulation SHO, Regulation NMS, and the LULD Plan, in a manner consistent with the rulebooks of other national securities exchanges.
The Exchange believes that proposed Rule 25080 is consistent with Section 6(b)(5) of the Exchange Act
Proposed Rule 25090 sets forth certain risk controls applicable to orders submitted to the BSTX System. The proposed risk controls are designed to prevent the submission and execution of potentially erroneous orders. Under the proposed rule, the BSTX System will reject orders that exceed a maximum order size, as designated by each BSTX Participant. The Exchange, however may set default values for this control. The proposed rule also provides a means by which all of a BSTX Participant's orders will be canceled in the event that the BSTX Participant loses its connection to the BSTX System. Proposed Rule 25090(c) provides a risk control that prevents incoming limit orders from being accepted by the BSTX System if the order's price is more than a designated percentage away from the National Best Bid or Offer in the marketplace. Proposed Rule 25090(d) provides a maximum order rate control whereby the BSTX System will reject an incoming order if the rate of orders received by the BSTX System exceeds a designated threshold. With respect to both of these risk controls (price protection for limit orders and maximum order rate), BSTX Participants may designate the appropriate thresholds, but the Exchange may also provide default values and mandatory minimum levels.
The Exchange believes the proposed risk controls in Rule 25090 are consistent with Section 6(b)(5) of the Exchange Act
Proposed Rule 25100 provides that the Exchange shall collect and disseminate last sale information for transactions executed on the BSTX system. The proposed rule further provides that the aggregate of the best-ranked non-marketable Limit Order(s), pursuant to Rule 25080, to buy and the best-ranked non-marketable Limit Order(s) to sell in the BSTX Book shall be collected and made available to quotation vendors for dissemination. Proposed Rule 25100 further provides that the BSTX System will operate as an “automated market center” within the meaning of Regulation NMS and will display “automated quotations” at all times except in the event of a system malfunction.
Proposed Rule 25100(d) provides that executions that occur as a result of orders matched against the BSTX Book, pursuant to Rule 25080, shall clear and settle pursuant to the rules, policies, and procedures of a registered clearing agency. Rule 25100(e) obliges BSTX Participants, or a clearing member/participant clearing on behalf of a BSTX Participant to honor trades effected on the BSTX System on the scheduled settlement date, and the Exchange shall not be liable for the failure of BSTX Participants to satisfy these obligations.
The Exchange believes that proposed Rule 25100 is consistent with Section 6(b)(5) of the Exchange Act
Proposed Rule 25110 sets forth the manner in which BSTX will resolve clearly erroneous executions that might occur on the BSTX System and is substantially similar to comparable clearly erroneous rules on other exchanges. Under proposed Rule 25100, transactions that involve an obvious error such as price or quantity, may be canceled after review and a determination by an officer of BSTX or such other employee designee of BSTX (“Official”).
The Exchange believes that proposed Rule 25110 is consistent with Section 6(b)(5) of the Exchange Act,
The Exchange believes that its proposed process for BSTX Participants to appeal clearly erroneous execution determinations made by an Exchange Official pursuant to proposed Rule 25110 to the Chief Regulatory Officer of BSTX is consistent with Section 6(b)(5) of the Exchange Act
To the extent Securities become tradeable on other national securities exchanges or other changes arise that may necessitate changes to proposed Rule 25110 to conform more closely with the clearly erroneous execution rules of other exchanges, the Exchange intends to implement changes as necessary through a proposed rule change filed with the Commission pursuant to Section 19 of the Exchange Act
Proposed Rule 25120 sets forth certain requirements with respect to short sale orders submitted to the BSTX System that is virtually identical to similar rules on other exchanges.
The Exchange believes that proposed Rule 25120 is consistent with Section 6(b)(5) of the Exchange Act,
Proposed Rule 25130 sets forth provisions related to locking or crossing quotations. The proposed rule is substantially similar to the rules of other national securities exchanges.
The Exchange believes proposed Rule 25130 is consistent with Section 6(b)(5) of the Exchange Act
Proposed Rule 25140 provides that each BSTX Participant must either (1) be a member of a registered clearing agency that uses a CNS system, or (2) clear transactions executed on the Exchange through another Participant that is a member of such a registered clearing agency. The Exchange would maintain connectivity and access to the UTC of NSCC for transmission of executed transactions. The proposed Rule requires a Participant that clears through another participant to obtain a written agreement, in a form acceptable to the Exchange, that sets out the terms of such arrangement. The proposed Rule also provides that BSTX transaction reports shall not reveal contra party identities and that transactions would be settled and cleared anonymously. In certain circumstances, such as for regulatory purposes, the Exchange may reveal the identity of a Participant or its clearing firm such as to comply with a court order.
The Exchange believes that proposed Rule 25140 is consistent with Section 6(b)(5) of the Exchange Act
The BSTX Market Making Rules (Rules 25200-25240) provide for registration and describe the obligations of Market Makers on the Exchange. The proposed Market Making Rules also provide for registration and obligations of Designated Market Makers (“DMMs”) in a given Security, allocation of a DMM to a particular Security, and parameters for business combinations of DMMs.
Proposed Rule 25200 sets forth the basic registration requirement for a BSTX Market Maker by noting that a Market Maker must enter a registration request to BSTX and that such registration shall become effective on the next trading day after the registration is entered, or, in the Exchange's discretion, the registration may become effective the day that it is entered (and the Exchange will provide notice to the Market Maker in such cases). The proposed Rule further provides that a BSTX Market Maker's registration shall be terminated by the Exchange if the Market Maker fails to enter quotations within five business days after the registration becomes effective.
Proposed Rule 25210 sets forth the obligations of Market Makers, including DMMs. Under the proposed Rule, a BSTX Participant that is a Market Maker, including a DMM, is generally required to post two-sided quotes during the regular market session for each Security in which itis registered as a Market Maker.
The Exchange proposes in Rule 25210(a)(4) that, in the event that price movements cause a Market Maker or DMM's quotations to fall outside of the National Best Bid (Offer) (or last sale price in the event there is no National Best Bid (Offer)) by a given percentage, with such percentage called the “Defined Limit,” in a Security for which they are a Market Maker, the Market Maker or DMM must enter a new bid or offer at not more than the Designated Percentage away from the National Best Bid (Offer) in that Security. The Exchange proposes that the Defined Limit shall be 31.5%.
The Exchange notes that proposed Rule 25210 is substantially similar to NYSE American Rule 7.23E, with the exceptions of: (i) The modified normal unit of trading, Designated Percentage, and Defined Limit (as discussed above); (ii) specifying that the minimum quotation increment shall be $0.01; and (iii) specifying that Market Maker quotations must be firm for their displayed size and automatically executable. The Exchange believes that the additional specifications with respect to the minimum quotation increment and firm quotation requirement will add additional clarity to the expectations of Market Makers on the Exchange.
Proposed Rule 25220 sets forth the registration requirements for a DMM. Under proposed Rule 25220, a DMM must be a registered Market Maker and be approved as a DMM in order to receive an allocation of Securities pursuant to proposed Rule 25230, which is described below.
In proposed Rule 25230, the Exchange proposes to set forth the process by which a DMMs are allocated and reallocated responsibility for a particular Security. Proposed Rule 25230(a) sets forth the basic eligibility criteria for a when a Security may be allocated to a DMM, providing that this may occur when the Security is initially listed on BSTX, when it is reassigned pursuant to Rule 25230, or when it is currently listed without a DMM assigned to the Security.
Proposed Rule 25230(b) sets forth the manner in which a DMM may be selected and allocated a Security. Under proposed Rule 25230(b), an issuer may select its DMM directly, delegate the authority to the Exchange to selects its DMM, or may opt to proceed with listing without a DMM, in which case a minimum of three non-DMM Market Makers at initial listing and two non-DMM Market Makers for continued listing must be assigned to its Security consistent with proposed Rule 26106. Proposed Rule 25230(b) further sets forth provisions relating to the interview between the issuer and DMMs, the Exchange selection by delegation, and a requirement that a DMM serve as a DMM for a Security for at least one year unless compelling circumstances exist for which the Exchange may consider a shorter time period. Each of these
Proposed Rule 25230(c) sets forth the reallocation process for a DMM in a manner that is substantially similarly to corresponding provisions in NYSE American Rule 7.25E(c). Generally, under the proposed Rule, an issuer may request a reallocation to a new DMM and Exchange staff will review this request, along with any DMM response letter, and eventually make a determination.
Finally, proposed Rule 25240 sets forth the DMM combination review policy. The proposed Rule, among other things, defines a proposed combination among DMMs, requires that DMMs provide a written submission to the Office of the Corporate Secretary of the Exchange and specifies, among other things, the items to be disclosed in the written submission, the criteria that the Exchange will use to evaluate a proposed combination, and the timing for a decision by the Exchange, subject to the Exchange's right to extend such time period. The Exchange notes that proposed Rule 25240 is substantially similar to NYSE American Rule 7.26E.
The Exchange believes that the proposed Market Making Rules set forth in the Rule 25200 Series are consistent with Section 6(b)(5) of the Exchange Act
The Exchange has also proposed that the minimum quotation size of Market Makers will be one Security. As noted above, the Exchange believes that Securities may initially trade in smaller increments relative to other listed equities and that reducing the two-sided quoting increment from one round lot (
The BSTX Listing Rules Other than for Exchange Traded Products (the “Non-ETP Listing Rules”) in the Rule Series 26000 and the Suspension and Delisting Rules in the Rule 27000 Series have been adapted from, and are substantially similar to, Parts 1-12 of the NYSE American LLC Company Guide.
• The BSTX Rule 26100 Series are based on the NYSE American Original Listing Requirements (Sections 101-146).
• The BSTX Original Listing Procedures (26200 Series) are based on the NYSE American Original Listing Procedures (Sections 201-222).
• The BSTX Additional Listings Rules (26300 Series) are based on the NYSE American Additional Listings Sections (Sections 301-350).
• The BSTX Disclosure Policies (26400 Series) are based on the NYSE American Disclosure Policies (Sections 401-404).
• The BSTX Dividends and Splits Rules (26500 Series) are based on the
• The BSTX Accounting; Annual and Quarterly Reports Rules (26600 Series) are based on the NYSE American Accounting; Annual and Quarterly Reports Sections (Sections 603-624).
• The BSTX Shareholders' Meetings, Approval and Voting of Proxies Rules (26700 Series) are based on the NYSE American Shareholders' Meetings, Approval and Voting of Proxies Sections (Sections 701-726).
• The BSTX Corporate Governance Rules (26800 Series) are based on the NYSE American Corporate Governance Sections (Sections 801-809).
• The BSTX Additional Matters Rules (26900 Series) are based on the NYSE American Additional Matters Sections (Sections 920-994).
• The BSTX Suspension and Delisting Rules (27000 Series) are based on the NYSE American Suspension and Delisting Sections (Sections 1001-1011).
• The BSTX Guide to Filing Requirements (27100 Series) are based on the NYSE American Guide to Filing Requirements (Section 1101).
• The BSTX Procedures for Review of Exchange Listing Determinations (27200 Series) are based on the NYSE American Procedures for Review of Exchange Listing Determinations (Sections 1201-1211).
Notwithstanding that the proposed Rule 26000 and 27000 Series are substantially similar to those of other exchanges, BSTX proposes certain additions or modifications to these rules specific to its market. For example, BSTX proposes to add definitions that apply to the proposed BSTX Rule 26000 and 27000 Series. The definitions set forth in proposed Rule 26000 are designed to facilitate understanding of these Rule Series by market participants. Increased clarity may serve to remove impediments to and perfect the mechanism of a free and open market and a national market system and may also foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, consistent with Section 6(b)(5) of the Exchange Act.
With respect to initial listing standards for non-ETP Securities, which begin at proposed Rule 26101, the Exchange proposes to adopt listing standards that are substantially similar to the NYSE American listing rules.
With respect to the definitions in proposed Rule 26000, these are designed to facilitate understanding of the BSTX Non-ETP Listing Rules by market participants. The Exchange believes that allowing market participants to better understand and interpret the BSTX Non-ETP Listing Rules removes impediments to and perfects the mechanism of a free and open market and a national market system, and may also foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, consistent with Section 6(b)(5) of the Exchange Act.
The Exchange also proposes certain enhancements to the notice requirements for listed companies to communicate to BSTX related to record dates and defaults.
The Exchange's proposed Rules provide additional flexibility for listed
The Exchange also proposes a number of other non-substantive changes from the baseline NYSE American listing rules, such as to eliminate references to the concept of a “specialist,” since BSTX will not have a specialist,
The Exchange proposes in Rule 26507 to prohibit the issuance of fractional Securities and to provide that cash must be paid in lieu of any distribution or part of a distribution that might result in fractional interests in Securities.
Proposed BSTX Rule 26130 (Original Listing Applications) would require listing applicants to furnish a legal opinion that the applicant's Security is a security under applicable United States securities laws. Such a requirement provides assurance to the Exchange that Security trading relates to appropriate asset classes. The Exchange believes that this Rule promotes just and equitable principles of trade and, in general, protects investors and the public interest, consistent with Section 6(b)(5) of the Exchange Act.
The Exchange proposes to adopt corporate governance listing standards as its Rule 26800 Series that are substantially similar to the corporate governance listing standards set forth in Part 8 of the NYSE American Listing Manual. However, it includes certain clarifications, most notably that certain proposed provisions are not intended to restrict the number of terms that a director may serve
The Exchange proposes to adopt additional listing rules as its Rule 26900 Series that are substantially similar to the corporate governance listing standards set forth in Part 9 of the NYSE American Listing Manual. The only significant difference from the baseline NYSE American rules is that the proposed BSTX Rules do not include provisions related to certificated securities, since Securities listed on BSTX will be uncertificated.
The Exchange proposes to adopt suspension and delisting rules as its Rule 27000 Series that are substantially similar to the corporate governance listing standards set forth in Parts 10, 11, and 12 of the NYSE American Listing Manual. The proposed rules do not include concepts from the baseline NYSE American rules regarding foreign, fixed income securities, or other non-equity securities because the Exchange is not proposing to allow for listing of such securities at this time.
The Exchange believes that the proposals in the Rule 26800 to Rule 27000 Series, which are based on the rules of NYSE American with the differences explained above, are designed to foster cooperation and coordination with persons engaged in facilitating transactions in securities, 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. Further, the differences in the proposals compared to the analogous NYSE American provisions appropriately reflect the differences between the two exchanges. The Exchange believes that ensuring that its systems are appropriately described in the BSTX Rules facilitates market participants' review of such Rules, which serves to remove impediments to and perfect the mechanism of a free and open market and a national market system by ensuring that market participants can easily navigate, understand and comply with the Exchange's rulebook. Therefore, the Exchange believes its proposals are consistent with Section 6(b)(5) of the Exchange Act.
The Exchange proposes as the Rule 28000 Series rules related to trading and listing ETPs. These proposed Rules allow for an array of different types of ETPs to be traded and listed on the Exchange and would provide individuals and institutions with diverse range of products in which to invest. The proposed Rules would set forth requirements and initial as well as continued listing standards for a variety of ETPs noted in the bulleted list below. The proposed Rules have been adapted from, and are substantially similar to, rules found in the NYSE Arca Inc. (“NYSE Arca”) rulebook. Below is a list of the proposed Rules in the 28000 Series and the NYSE Arca rules on which it is based:
• Proposed Rule 28000 (Investment Company Units) is based on NYSE Arca Rule 5.2-E(j)(3).
• Proposed Rule 28001 (Equity Index-Linked Securities, Commodity-Linked Securities, Currency-Linked Securities, Fixed Income Index-Linked Securities, Futures-Linked Securities and Multifactor Index-Linked Securities) is based on NYSE Arca Rule 5.2-E(j)(6).
• Proposed Rule 28002 (Exchange-Traded Fund Shares) is based on NYSE Arca Rule 5.2-E(j)(8).
• Proposed Rule 28003 (Trust Issued Receipts) is based on NYSE Arca Rule 8.200-E.
• Proposed Rule 28004 (Commodity-Based Trust Shares) is based on NYSE Arca Rule 8.201-E.
• Proposed Rule 28005 (Managed Fund Shares) is based on NYSE Arca Rule 8.600-E.
• Proposed Rule 28006 (Active Proxy Portfolio Shares) is based on NYSE Arca Rule 8.601-E.
• Proposed Rule 28007 (Managed Portfolio Shares) is based on NYSE Arca Rule 8.900-E.
For each Rule in the 28000 Series, the Exchange proposes provisions that are substantially similar to provisions in the NYSE Arca rulebook, with adjustments made to ensure appropriate reference to concepts in other parts of the BSTX Rulebook. For example, in cases where the precedent NYSE Arca rule referred to a specific provision regarding delisting procedures, the Exchange has modified the proposed Rules to reference to the proposed Rule 27000 Series, which set forth the Exchange's proposed Rules governing suspension and delisting.
The Exchange believes that the proposals in the Rule 28000 Series help remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general promote the protecting of investors and the public interest because they will facilitate an additional exchange on which ETPs can be listed and traded. This adds competition to the marketplace for the listing of ETPs, providing greater choice for issuers of ETPs and an additional trading venue on which market participants can trade such products. As noted, the proposed Rule 28000 Series is substantially similar to the rules of NYSE Arca relating to ETPs, with only non-substantive differences, which differences appropriately reflect the differences between the two exchanges (
The Exchange proposes to set forth as its Rule 29000 Series (Fees) the Exchange's authority to prescribe reasonable dues, fees, assessments or other charges as it may deem appropriate. As provided in proposed Rule 29000 (Authority to Prescribe Dues, Fees, Assessments and Other Charges), these fees may include membership dues, transaction fees, communication and technology fees, regulatory fees, and other fees, which will be equitably allocated among BSTX Participants, issuers, and other persons using the Exchange's facilities.
The Exchange believes that the proposed Rule 29000 Series (Fees) is consistent with Sections 6(b)(5) of the Exchange Act because these proposed rules are designed to protect investors and the public interest by setting forth the Exchange's authority to assess fees on BSTX Participants, which would be used to operate the BSTX System and surveil BSTX for compliance with applicable laws and rules. The Exchange believes that the proposed Rule 29000 Series (Fees) is also consistent with Sections 6(b)(3) of the Exchange Act
The Exchange's disciplinary rules, including Exchange Rules applicable to “minor rule violations,” are set forth in the Rule 12000 Series of the Exchange's current Rules. Such disciplinary rules would apply to BSTX Participants and their associated persons pursuant to proposed Rule 24000. The Exchange's Minor Rule Violation Plan (“MRVP”) specifies those uncontested minor rule violations with sanctions not exceeding $2,500 that would not be subject to the provisions of Rule 19d-1(c)(1) under the Exchange Act
The Exchange proposes to amend its MRVP and Rule 12140 to include proposed Rule 24010 (Penalty for Minor Rule Violations). The Rules included in proposed Rule 24010 as appropriate for disposition under the Exchange's MRVP are: (a) Rule 20000 (Maintenance, Retention and Furnishing of Records); (b) Rule 25070 (Audit Trail); (c) Rule 25210(a)(1) (Two-Sided Quotation Obligations of BSTX Market Makers); and Rule 25120 (Short Sales). The rules included in proposed Rule 12140 are the same as the rules included in the MRVPs of other exchanges.
This proposal to include the rules listed in Rule 24010 in the Exchange's MRVP is consistent with the public interest, the protection of investors, or otherwise in furtherance of the purposes of the Exchange Act, as required by Rule 19d-1(c)(2) under the Exchange Act,
Due to the new BSTX trading facility and the introduction of trading in Securities= [sic] on the Exchange, the Exchange proposes to amend those Exchange Rules that would apply to BSTX Participants, but that currently only contemplate trading in options. Therefore, the Exchange is seeking to amend the following Exchange Rules, each of which is set forth in Exhibit 5B submitted with the proposal:
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The Exchange believes that the proposed amendments to the definitions set forth in Rule 100 are consistent with
The Exchange believes that the proposed amendments to the other Exchange Rules detailed above are consistent with Section 6(b)(5) of the Exchange Act
In connection with the operation of BSTX, the Exchange proposes to uses a series of new forms to facilitate becoming a BSTX Participant and for issuers to list their Securities. These forms have been submitted with the proposal as Exhibits 3A-3L. Each are described below.
Pursuant to proposed Rule 18000(b), in order to become a BSTX Participant, an applicant must complete a BSTX Participant Application, which has been submitted with the proposal as Exhibit 3A. The proposed BSTX Participant Application requires the applicant to provide certain basic information such as identifying the applicants name and contact information, Designated Examining Authority, organizational structure, and Central Registration Depository (“CRD”) number. The BSTX Participant Application also requires applicants to provide additional information including certain beneficial ownership information, the applicant's current Form BD, an organization chart, a description of how the applicant receives orders from customers, how it will send orders to BSTX, and a copy of written supervisory procedures and information barrier procedures.
In addition, the BSTX Participant Application allows applicants to indicate whether they are applying to be a BSTX Market Maker or a Designated Market Maker. Applicants wishing to become a BSTX Market Maker or Designated Market Maker must provide certain additional information including a list of each of the applicant's trading representatives (including a copy of each representative's Form U4), a copy of the applicant's written supervisory procedures relating to market making, a description of the source and amount of the applicant's capital, and information regarding the applicant's other business activities and information barrier procedures.
Pursuant to Exchange Rule 18000(b), to transact business on BSTX, prospective BSTX Participants must complete a BSTX Participant Agreement. The BSTX Participant Agreement has been submitted with the proposal as Exhibit 3B. The BSTX Participant Agreement provides that a BSTX Participant must agree with the Exchange as follows:
1. Participant agrees to abide by the Rules of the Exchange and applicable bylaws, as amended from time to time, and all circulars, notices, interpretations, directives and/or decisions adopted by the Exchange.
2. Participant acknowledges that BSTX Participant and its associated persons are subject to the oversight and jurisdiction of the Exchange.
3. Participant authorizes the Exchange to make available to any governmental agency or SRO any information it may have concerning the BSTX Participant or its associated persons, and releases the Exchange from any and all liability in furnishing such information.
4. Participant acknowledges its obligation to update any and all information contained in any part of the BSTX Participant's application, including termination of membership with another SRO.
These provisions of the BSTX Participant Agreement and others therein are generally designed to reflect the Exchange's SRO obligations to regulate BSTX Participants. Accordingly, these provisions contractually bind a BSTX Participant to comply with Exchange rules, acknowledge the Exchange's oversight and jurisdiction, authorize the Exchange to disclose information regarding the Participant to any governmental agency or SRO and acknowledge the obligation to update any and all Application contained in the Participant's application.
In order to become a BSTX Participant, prospective participants must also execute a BSTX User Agreement pursuant to proposed Rule 18000(b). The BSTX User Agreement, submitted with the proposal as Exhibit 3C, includes provisions related to the term of the agreement, compliance with exchange rules, right and obligations under the agreement, changes to BSTX, proprietary rights under the agreement, use of information received under the relationship, disclaimer of warranty, limitation of liability, indemnification, termination and assignment. The information is necessary to outline the rights and obligations of the prospective Participant and the Exchange under the terms of the agreement. Both the BSTX Participant Agreement and BSTX User Agreement will be available on the Exchange's website (
In accordance with proposed Rule 25230(b)(1), BSTX will maintain the BSTX Security Designated Market Maker Selection Form, which has been submitted with the proposal as Exhibit 3D. The issuer may select its DMM from among a pool of DMMs eligible to participate in the process. Within two business days of the issuer selecting its DMM, it will use the BSTX Security Market Designated Market Maker Selection form to notify BSTX of the selection. The form must be signed by a duly authorized officer as specified in proposed Rule 25230(b)(1).
In accordance with proposed Rule 18010, BSTX Participants that are not members/participants of a registered clearing agency must clear their transactions through a BSTX Participant that is a member of a registered clearing agency. A BSTX Participant clearing through another BSTX Participant would do so using, as applicable, either the BSTX Clearing Authorization (non-Market Maker) form (submitted with the proposal as Exhibit 3E) or the BSTX Participant Clearing Authorization (Market Maker) form (submitted with the proposal as Exhibit 3F). Each form would be maintained by BSTX and each form specifies that the BSTX Participant clearing on behalf of the other BSTX Participant accepts financial responsibility for all transactions on BSTX that are made by the BSTX Participant designated on the form.
The Exchange proposes to specify the required forms of listing application, listing agreement and other documentation that listing applicants and listed companies must execute or complete (as applicable) as a prerequisite for initial and ongoing listing on the Exchange, as applicable (collectively, “listing documentation”). As proposed, the listing forms are substantially similar to those currently in use by NYSE American LLC, with certain differences to account for the trading of Securities. All listing documentation will be available on the Exchange's website (
Pursuant to Rule 26130 and 26300 of the Exchange Rules, a company must file and execute the BSTX Original Listing Application (submitted with the proposal as Exhibit 3G) or the BSTX Additional Listing Application (submitted with the proposal as Exhibit 3H) to apply for the listing of Securities on BSTX.
1. Corporate information regarding the issuer of the security to be listed, including company name, address, contact information, Central Index Key Code (CIK), SEC File Number, state and country of incorporation, date of incorporation, whether the company is a foreign private issuer, website address, SIC Code, CUSIP number of the security being listed and the date of fiscal year end. This information is required of all applicants and is necessary in order for the Exchange's regulatory staff to collect basic company information for recordkeeping and due diligence purposes, including review of information contained in the company's SEC filings.
2. For original listing applications only, corporate contact information including the company's Chief Executive Officer, Chief Financial Officer, Corporate Secretary, General Counsel and Investor Relations Officer. This information is required of all initial applicants and is necessary in order for the Exchange's regulatory staff to collect current company contact information for purposes of obtaining any additional due diligence information to complete a listing qualification review of the applicant.
3. For original listing applications only, offering and security information regarding an offering, including the type of offering, a description of the issue, par value, number of Securities outstanding or offered, total Securities unissued, but reserved for issuance, date authorized, purpose of Securities to be issued, number of Securities authorized, and information relating to payment of dividends. This information is required of all applicants listing Securities on the Exchange, and is necessary in order for the Exchange's regulatory staff to collect basic information about the offering.
4. For original listing applications only, information regarding the company's transfer agent. Transfer agent information is required for all applicants. This information is necessary in order for the Exchange's regulatory staff to collect current contact information for such company transfer agent for purposes of obtaining any additional due diligence information to complete a listing qualification review of the applicant.
5. For original listing applications only, contact information for the outside counsel with respect to the listing application, if any. This information is necessary in order for the Exchange's regulatory staff to collect applicable contact information for purposes of obtaining any additional due diligence information to complete a listing qualification review of the applicant and assess compliance with Exchange Rule 26130.
6. For original listing applications only, a description of any security preferences. This information is necessary to determine whether the Applicant issuer has any existing class of common stock or equity securities entitling the holders to differential voting rights, dividend payments, or other preferences.
7. For original listing applications only, type of Security listing, including the type of transaction (initial public offering of a Security, merger, spin-off, follow on offering, reorganization, exchange offer or conversion) and other details related to the transaction, including the name and contact information for the investment banker/financial advisor contacts. This information is necessary in order for the Exchange's regulatory staff to collect information for such company for purposes of obtaining any additional due diligence information to complete a listing qualification review of the applicant.
8. For original listing applications only, exchange requirements for listing consideration. This section notes that to be considered for listing, the Applicant Issuer must meet the Exchange's minimum listing requirements, that the Exchange has broad discretion regarding the listing of any Security and may deny listing or apply additional or more stringent criteria based on any event, condition or circumstance that makes the listing of an Applicant Issuer's Security inadvisable or unwarranted in the opinion of the Exchange. The section also notes that even if an Applicant Issuer meets the Exchange's listing standards for listing on the BSTX Security Market, it does not necessarily mean that its application will be
9. For original listing applications only, regulatory review information, including a certification that no officer, board member or non-institutional shareholder with greater than 10% ownership of the company has been convicted of a felony or misdemeanor relating to financial issues during the past ten years or a detailed description of any such matters. This section also notes that the Exchange will review background materials available to it regarding the aforementioned individuals as part of the eligibility review process. This regulatory review information is necessary in order for the Exchange's regulatory staff to assess whether there are regulatory matters related to the company that render it unqualified for listing.
10. For original listing applications only, supporting documentation required prior to listing approval includes a listing agreement, corporate governance affirmation, listing application checklist and underwriter's letter. This documentation is necessary in order to support the Exchange's regulatory staff listing qualification review (corporate governance affirmation, listing application checklist and underwriter's letter) and to effectuate the listed company's agreement to the terms of listing (listing agreement).
11. For additional listing applications only, transaction details, including the purpose of the issuance, total Securities, date of board authorization, date of shareholder authorization and anticipated date of issuance. This information is required of all applicants listing additional Securities on the Exchange, and is necessary in order for the Exchange's regulatory staff to collect basic information about the offering.
12. For additional listing applications only, insider participation and future potential issuances, including whether any director, officer or principal shareholder of the company has a direct or indirect interest in the transaction, and if the transaction potentially requires the company to issue any Securities in the future above the amount they are currently applying for. This information is required of all applicants listing additional Securities on the Exchange, and is necessary in order for the Exchange's regulatory staff to collect basic information about the offering.
13. For additional listing applications only, information for a technical original listing, including reverse Security splits and changes in states of incorporation. This information is required of all applicants listing additional Securities on the Exchange, and is necessary in order for the Exchange's regulatory staff to collect basic information about the offering.
14. For additional listing applications only, information for a forward Security split or Security dividend, including forward Security split ratios and information related to Security dividends. This information is required of all applicants listing additional Securities on the Exchange, and is necessary in order to determine the rights associated with the Securities.
15. For additional listing applications only, relevant company documents. This information is required of all applicants listing additional Securities on the Exchange, and is necessary to assess to support the Exchange's regulatory staff listing qualification review.
16. For additional listing applications only, reconciliation for technical original listing, including Securities issued and outstanding after the technical original event, listed reserves previously approved for listing, and unlisted reserves not yet approved by the Exchange. This information is required of all applicants listing additional Securities on the Exchange, and is necessary to assess to support the Exchange's regulatory staff listing qualification review and to obtain all of the information relevant to the offering.
In order to assist issuers seeking to list its Securities on BSTX, the Exchange has provided a checklist for issuers to seeking to file an original listing application with BSTX. The BSTX Listing Application Checklist, submitted with the proposal as Exhibit 3I, provides that issuers must provide BSTX with a listing application, listing agreement, corporate governance affirmation, underwriter's letter (for an initial public offering of a Security only) and relevant SEC filings (
Pursuant to proposed Exchange Rule 26132, to apply for listing on the Exchange, a company must execute the BSTX Security Market Listing Agreement (the “Listing Agreement”), which has been submitted with this proposal as Exhibit 3J. Pursuant to the proposed Listing Agreement, a company agrees with the Exchange as follows:
1. Company certifies that it will comply with all Exchange rules, policies, and procedures that apply to listed companies as they are now in effect and as they may be amended from time to time, regardless of whether the Company's organization documents would allow for a different result.
2. Company shall notify the Exchange at least 20 days in advance of any change in the form or nature of any listed Securities or in the rights, benefits, and privileges of the holders of such Securities.
3. Company understands that the Exchange may remove its Securities from listing on the BSTX Security Market, pursuant to applicable procedures, if it fails to meet one or more requirements of Paragraphs 1 and 2 of this agreement.
4. In order to publicize the Company's listing on the BSTX Security Market, the Company authorizes the Exchange to use the Company's corporate logos, website address, trade names, and trade/service marks in order to convey quotation information, transactional reporting information, and other information regarding the Company in connection with the Exchange. In order to ensure the accuracy of the information, the Company agrees to provide the Exchange with the Company's current corporate logos, website address, trade names, and trade/service marks and with any subsequent changes to those logos, trade names and marks. The Listing Agreement further requires that the Company specify a telephone number to which questions regarding logo usage should be directed.
5. Company indemnifies the Exchange and holds it harmless from any third-party rights and/or claims arising out of use by the Exchange or, any affiliate or facility of the Exchange (“Corporations”) of the Company's corporate logos, website address, trade names, trade/service marks, and/or the trading symbol used by the Company.
6. Company warrants and represents that the trading symbol to be used by the Company does not violate any trade/service mark, trade name, or other intellectual property right of any third party. The Company's trading symbol is provided to the Company for the limited purpose of identifying the Company's security in authorized quotation and trading systems. The Exchange reserves the right to change the Company's trading symbol at the Exchange's discretion at any time.
7. Company agrees to furnish to the Exchange on demand such information concerning the Company as the Exchange may reasonably request.
8. Company agrees to pay when due all fees associated with its listing of Securities on the BSTX Security Market, in accordance with the Exchange's Rules.
9. Company agrees to file all required periodic financial reports with the SEC, including annual reports and, where applicable, quarterly or semi-annual reports, by the due dates established by the SEC.
The various provisions of the Listing Agreement are designed to accomplish several objectives. First, clauses 1-3 and 6-8 reflect the Exchange's SRO obligations to assure that only listed companies that are compliant with applicable Exchange rules may remain listed. Thus, these provisions contractually bind a listed company to comply with Exchange rules, provide notification of any corporate action or other event that will cause the company to cease to be in compliance with Exchange listing requirements, evidence the company's understanding that it may be removed from listing (subject to applicable procedures) if it fails to be in compliance or notify the Exchange of any event of noncompliance, furnish the Exchange with requested information on demand, pay all fees due and file all required periodic reports with the SEC. Clauses four and five contain standard legal representations and agreements from the listed company to the Exchange regarding use of its logo, trade names, trade/service markets, and trading symbols as well as potential legal claims against the Exchange in connection thereto.
In accordance with the proposed Rule 26800 Series, companies listed on BSTX would be required to comply with certain corporate governance standards, relating to, for example, audit committees, director nominations, executive compensation, board composition, and executive sessions. In certain circumstances the corporate governance standards that apply vary depending on the nature of the company. In addition, there are phase-in periods and exemptions available to certain types of companies. The proposed BSTX Security Market Corporate Governance Affirmation, submitted with this proposal as Exhibit 3K, enables a company to confirm to the Exchange that it is in compliance with the applicable standards, and specify any applicable phase-ins or exemptions. Companies are required to submit a BSTX Security Market Corporate Governance Affirmation upon initial listing on the Exchange and thereafter when an event occurs that makes an existing form inaccurate. This BSTX Security Market Corporate Governance Affirmation assists the Exchange regulatory staff in monitoring listed company compliance with the corporate governance requirements.
In accordance with proposed Rule 26101, an initial public offering of a Security must meet certain listing requirements. The Exchange seeks to require the issuer's underwriter to execute a letter setting forth the details of the offering, including the name of the offering and why the offering meets the criteria of the BSTX rules. This information, set forth in the proposed Sample Underwriter's Letter and submitted with this proposal as Exhibit 3L, is necessary to assist the Exchange's regulatory staff in assessing the offering's compliance with BSTX listing standards for an initial public offering of a Security.
In connection with the operation of BSTX, the Exchange will leverage many of the structures it established to operate a national securities exchange in compliance with Section 6 of the Exchange Act.
Section 17(d) of the Exchange Act
Rule 17d-2 under the Exchange Act
For those regulatory responsibilities that fall outside the scope of any Rule 17d-2 agreements that the Exchange may join, subject to Commission approval, the Exchange will retain full regulatory responsibility under the Exchange Act. However, as noted, the Exchange will extend its existing Regulatory Services Agreement with FINRA to provide that FINRA personnel will operate as agents for the Exchange in performing certain regulatory functions with respect to BSTX. As is the case with the Exchange's options trading platform, the Exchange will supervise FINRA and continue to bear ultimate regulatory responsibility for BSTX. Consistent with the Exchange's existing regulatory structure, the Exchange's Chief Regulatory Officer shall have general supervision of the regulatory operations of BSTX, including responsibility for overseeing the surveillance, examination, and enforcement functions and for administering all regulatory services agreements applicable to BSTX. Similarly, the Exchange's existing Regulatory Oversight Committee will be responsible for overseeing the adequacy and effectiveness of Exchange's regulatory and self-regulatory organization responsibilities, including
In addition, the Exchange will oversee the process for determining and implementing trade halts, identifying and responding to unusual market conditions, and administering the Exchange's process for identifying and remediating “clearly erroneous trades” pursuant to proposed Rule 25110.
The Exchange intends to join the Order Execution Quality Disclosure Plan, the Plan to Address Extraordinary Market Volatility, the Plan Governing the Process of Selecting a Plan Processor, and the applicable plan(s) for consolidation and dissemination of market data. The Exchange is already a participant in the NMS plan related to the Consolidated Audit Trail. Consistent with Section 6(b)(5) of the Exchange Act,
The Exchange believes that the proposed rule change is consistent with the provisions of the Exchange Act,
The Exchange believes that BSTX will benefit individual investors, other market participants, and the equities market generally. The Exchange proposes to establish BSTX as a facility of the Exchange that would trade equities in a similar manner to how equities presently trade on other exchanges. BSTX would also make available to BSTX Participants the BSTX Market Data Blockchain, which provides certain order and transaction information with respect to a BSTX Participant's trading activity on BSTX, as well as anonymized order and transaction data with respect to all trading activity occurring on BSTX. The Exchange believes that the content of information available on the BSTX Market Data Blockchain would generally be similar to TAQ data made available by NYSE today, except that (i) the BSTX Market Data Blockchain would use a private, permissioned network controlled by the Exchange to make the market data available to BSTX Participants; (ii) a BSTX Participant would be able to certain see non-anonymized information about its own trading activity on BSTX;
The Exchange has proposed to make anonymized General Market Data on the BSTX Market Data Blockchain available to both BSTX Participants and non-BSTX Participants through the same means of an API. Accordingly, the Exchange believes that because General Market Data available on the BSTX Market Data Blockchain would be available to both BSTX and non-BSTX Participants, the BSTX Market Data Blockchain is not unfairly discriminatory and does not impose a burden on competition, consistent with Sections 6(b)(5) and 6(b)(8) of the Exchange Act.
In addition, because the BSTX Market Data Blockchain only captures information with respect to trading activity on BSTX, it would have no effect or impact on other exchanges, promoting consistency with Section 6(b)(8) of the Exchange Act, which prohibits an exchange's rules from imposing a burden on competition not necessary or appropriate in furtherance of the Exchange Act.
In connection with the clearance and settlement of Securities pursuant to the rules, policies and procedures of a registered clearing agency, the Exchange proposes that BSTX Participants would be able to include in their orders in Securities that are submitted to BSTX certain parameters to indicate a preference for settlement on a same day (T+0) or next trading day (T+1) basis when certain conditions are met.
The Exchange believes that the proposed ability for BSTX Participants to indicate a preference for shorter settlement times as described above is consistent with the Exchange Act and in particular Section 6(b)(5) of the Exchange Act because it would help remove impediments to and perfect the mechanism of a free and open market and is not designed to permit unfair discrimination between or among market participants.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
The Exchange believes that the primary areas where the proposed rule change could potentially result in a burden on competition are with regard to the terms on which: (1) Issuers may list their securities for trading, (2) market participants may access BSTX as a facility of the Exchange and use its services including the BSTX Market Data Blockchain, (3) Security transactions may be cleared and settled, (4) Security transactions would occur OTC (5) Security transactions would occur on other exchanges through an extension of UTP to Securities.
Regarding considerations (1) and (2), and as described in detail in Item 3 above, the BSTX Rules are drawn substantially from the existing rules of other exchanges that the Commission has already found to be consistent with the Exchange Act, including regarding whether they impose any burden on competition that is not necessary or appropriate in furtherance of its purposes. For example, the BSTX Non-ETP Listing Rules in the 26000 Series and Suspension and Delisting Rules in the 27000 Series that affect issuers and their ability to list Securities for trading are based substantially on the current rules of NYSE American. Additionally, the BSTX Trading and Listing of ETPs Rules in the 28000 Series that concern issuers and their ability to list Securities that are exchange-traded products are based substantially on the current rules of NYSE Arca. Additionally, the BSTX Rules regarding membership and access to and use of the facilities of BSTX are also substantially based on existing exchange rules. Specifically, the relevant BSTX Rules are as follows: Participation on BSTX (Rule 18000 Series); business conduct for BSTX Participants (Rule 19000 Series); financial and operational rules for BSTX Participants (Rule 20000 Series); supervision (Rule 21000 Series); miscellaneous provisions (Rule 22000 Series); trading practices (Rule 23000 Series); discipline and summary suspension (Rule 24000 Series); trading (Rule 25000 Series); market making (Rule 25200 Series); and dues, fees, assessments, and other charges (Rule 28000 [sic] Series). As described in detail in Item 3, these rules are substantially based on analogous rules of the following exchanges, as applicable: BOX; Investors Exchange LLC; Cboe BZX Exchange, Inc.; The Nasdaq Stock Market LLC; and NYSE American LLC.
Regarding consideration (2) and use of the BSTX Market Data Blockchain, the terms on which BSTX would operate
In addition to not imposing any burden on competition, the Exchange believes that the BSTX Market Data Blockchain would provide two primary benefits to BSTX Participants. First, the Exchange believes that BSTX Participants that choose to access the BSTX Market Data Blockchain may find the information useful as a focused source of market data regarding order and transaction information on BSTX.
Regarding consideration (3) and the manner in which Security transactions may be cleared and settled, the Exchange proposes under BSTX Rule 25100(d) to clear and settle transactions in Securities in accordance with the rules, policies and procedures of a registered clearing agency. The Exchange believes that this is consistent with how other exchange-listed equity securities are cleared and settled today. Therefore, BSTX's rules regarding clearance and settlement of Security transactions do not impose any relative burden on competition regarding the manner in which trades may be cleared and settled because market participants would be able to clear and settle Security transactions in the same manner as they already do in other types of NMS stock. The Exchange believes that this is equally true regarding the proposed ability of BSTX Participants to submit to BSTX orders in Securities in which they include a parameter expressing a preference for T+1 or T+0 settlement, consistent with the rules, policies and procedures of a registered clearing agency, as proposed in the operation of proposed BSTX Rules 25060(h) and 25100(d). As described in detail in Item 3 above, BSTX believes that NSCC and DTC already have authority under their rules policies and procedures to clear and settle certain trades on a T+1 or T+0 basis and that these clearing agencies do already clear and settle trades in accordance with this authority.
The Exchange believes that answering the question of whether a burden on competition is imposed by the proposal to allow BSTX Participants to specify an order parameter indicating a preference for potential settlement on a T+0 or T+1 basis requires an assessment under three general circumstances for order submissions and executions. The first possible circumstance contemplates orders that BSTX Participants would submit to the BSTX System and that would result in an execution on BSTX. Here, it would be entirely the choice of any BSTX Participant regarding whether to include an order parameter indicating a preference for T+0 or T+1 settlement where possible under the settlement logic in BSTX Rule 25060(h) and subject to functionality permitted by the rules, policies and procedures of a registered clearing agency. If no such additional parameter is included in the order or the matched orders are not eligible for shortened settlement pursuant to the rules, policies and procedures of a
The second possible circumstance arises when an order that would be required under Exchange Act Rule 611,
The third possible circumstance contemplates an order that must be routed under the order protection rule from BSTX to a third party exchange
In addition to not imposing any burden on competition, the Exchange believes that allowing BSTX Participants to use faster settlement cycles where consistent with the rules, policies and procedures of a registered clearing agency would mitigate settlement risk for transactions in such Securities, consistent with the benefits the Commission has noted in this area. Namely, in adopting amendments to SEC Rule 15c6-1 in 2017 to shorten the standard settlement cycle for most broker-dealer transactions in securities from T+3 to T+2, the Commission stated its belief that the shorter settlement cycle would have positive effects regarding the liquidity risks and costs faced by members in a clearing agency, like NSCC, that performs CCP services, and that it would also have positive effects for other market participants. Specifically, the Commission stated its belief that the resulting “reduction in the amount of unsettled trades and the period of time during which the CCP is exposed to risk would reduce the amount of financial resources that the CCP members may have to provide to support the CCP's risk management process . . .” and that “[t]his reduction in the potential need for financial resources should, in turn, reduce the liquidity costs and capital demands clearing broker-dealers face . . . and allow for improved capital utilization.”
With respect to consideration (4) above, as previously noted, market participants would not be limited in their ability to trade Securities OTC because Securities could be traded OTC and would be cleared and settled in the same manner as other NMS stocks through the facilities of a registered clearing agency. Thus, the Exchange does not believe that its proposal will place any new burden on competition with respect to OTC trading, given that trading, clearance and settlement will take place in the same manner as for other NMS stocks.
With respect to consideration (5) noted above regarding other exchanges extending UTP to Securities, the Exchange does not believe that the proposed Rules would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. This is because other national securities exchanges would be able to extend UTP to Securities in accordance with Commission rules just as they can regarding any other NMS stock.
The Exchange has neither solicited nor received comments on the proposed rule change.
Several commenters express support for the proposal's proposed use of a shortened settlement cycle under certain circumstances.
One commenter states that the United States should support blockchain technologies like BSTX to be competitive globally, and that blockchain affords more efficiency and transparency.
Finally, one commenter states that the proposal does not specifically address how participants shall access BSTX and
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Exchange proposes to make available the BSTX Market Data Blockchain, which would operate as a private, permission-based blockchain that would be accessible through an API available through the internet. Through use of the API, BSTX Participants would be able to see detailed information about their own trading activity on BSTX and anonymized, general information with respect to the trading activity of other BSTX Participants.
In addition, the Exchange proposes to allow BSTX Participants to utilize an order parameter to indicate a preference
Under the Commission's Rules of Practice, the “burden to demonstrate that a proposed rule change is consistent with the Exchange Act and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.”
For these reasons, the Commission believes it is appropriate to institute proceedings pursuant to Section 19(b)(2)(B) of the Act to determine whether the proposal, as modified by Amendment No. 1, should be approved or disapproved.
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal, as modified by Amendment No. 1, is consistent with Sections 6(b)(5),
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal, as modified by Amendment No. 1, should be approved or disapproved by September 23, 2021. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by October 7, 2021.
The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in Amendment No. 1,
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.